Durbin Chairs Hearing on Racial Profiling in America

Calls On Attorney General to Close Loopholes in Justice Department’s Guidelines

[WASHINGTON, D.C.] – Assistant Majority Leader and Chairman of the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights, Senator Dick Durbin (D-IL) today chaired a hearing on racial profiling in America – the first hearing on the issue in over a decade. The hearing explored immigration enforcement that subjects Hispanic Americans to heightened scrutiny, discriminatory law enforcement against African Americans, and anti-terrorism efforts that target American Muslims. The hearing also examined the ways in which racial profiling harms law enforcement.


“African Americans continue to face racial profiling on the streets and sidewalks of American cities. Since 9-11, Arab-Americans, American Muslims, and South-Asian Americans have faced national origin and religious profiling. And a recent spate of federal, state, and local measures has subjected Hispanic Americans to an increase in racial profiling under the guise of combating illegal immigration.” Durbin said. “Racial profiling undermines the rule of law and strikes at the core of our nation’s commitment to equal protection for all.”


Durbin added, “The vast majority of law enforcement officers perform their jobs honorably and courageously, putting their lives at risk to protect the communities they serve.  Unfortunately, the inappropriate actions of the few who engage in racial profiling create mistrust and suspicion that hurt all police officers.  That’s why so many law enforcement leaders strongly oppose racial profiling.


Following the hearing, Durbin, Rep. John Conyers and 64 other Members of Congress sent Attorney General Eric Holder a letter, calling on him to close loopholes in the Justice Department’s racial profiling guidance. In the letter, Durbin and the other members ask the Attorney General to make clear that profiling  on the basis of national origin and religion are prohibited in the guidance on racial profiling and to also extend that prohibition to include national security and border security investigations – not simply traditional law enforcement activities. A copy of the letter is attached.


The hearing also examined other efforts to address racial profiling, including the End Racial Profiling Act and the Justice Department Civil Rights Division’s enforcement of federal civil rights laws to prevent profiling by state and local law enforcement agencies.


Two panels of witnesses testified at today’s hearing. The first panel consisted of Members of Congress, including, Senator Ben Cardin (D-MD); Rep. John Conyers (D-MI); Rep. Luis Gutierrez (D-IL); Rep. Keith Ellison (D-MN); Rep. Judy Chu (D-CA); and Rep. Frederica Wilson (D-FL).


The second panel of witnesses included Ronald Davis, Chief of Police, City of East Palo Alto; David Harris, Distinguished Faculty Scholar and Associate Dean for Research, University of Pittsburgh School of Law; Anthony Romero, Executive Director, American Civil Liberties Union; Roger Clegg, President and General Counsel, Center for Equal Opportunity; and Frank Gale, National Second Vice President, Fraternal Order of Police.


Testimony from each witness is attached.


In March 2000, the Senate held its first-ever hearing on racial profiling, convened by Republican Senator (and later Attorney General) John Ashcroft (R-MO). At that hearing he expressed his strong opposition to racial profiling.


In February 2001, in his first Joint Address to Congress, President George W. Bush said that racial profiling is “wrong and we will end it in America.” Just a few months later, in June of 2001, Senator Russ Feingold (D-WI) held a second hearing on profiling. Today’s hearing is the first Senate hearing on the issue since the June 2001.


A copy of today's letter is below.


April 17, 2012


The Honorable Eric Holder

Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, D.C.  20530


Dear Attorney General Holder:


We write to you about a civil rights issue that goes to the heart of our nation’s promise of equal justice under law – protecting all Americans from the illegal and un-American practice of racial profiling.


Despite the fact that the vast majority of law enforcement officers perform their jobs honorably and courageously, putting their personal safety at risk to protect the communities they serve, the specter of racial profiling has contaminated the relationship between the police and minority communities.  The inappropriate actions of the few who engage in racial profiling are magnified, creating mistrust and suspicion that undermine community cooperation with law enforcement.  For that reason, numerous law enforcement organizations, including the International Association of Chiefs of Police (IACP), the National Organization of Black Law Enforcement Executives (NOBLE) and the National Council of Law Enforcement Organizations (NCLEO), strongly oppose racial profiling.


There is a bipartisan consensus about the need to end racial profiling. In a February 27, 2001 Joint Address to Congress, President George W. Bush said that racial profiling is “wrong and we will end it in America.”  You have spoken eloquently about your personal experiences with racial profiling and your opposition to profiling as a law-enforcement official. As you said in a 2010 speech: “Racial profiling is wrong.  It can leave a lasting scar on communities and individuals. And it is, quite simply, bad policing.”


In June 2003, under then-Attorney General John Ashcroft, the Civil Rights Division issued “Guidance Regarding the Use of Race by Federal Law Enforcement Agencies” (“Profiling Guidance”) to ban racial profiling by federal law enforcement. Unfortunately, this Profiling Guidance includes loopholes that would permit racial profiling in some circumstances. With respect to what it calls “traditional law enforcement activities,” the Profiling Guidance states: “In making routine or spontaneous law enforcement decisions, such as ordinary traffic stops, Federal law enforcement officers may not use race or ethnicity to any degree, except that officers may rely on race and ethnicity in a specific suspect description.”  This prohibition, while commendable, does not apply to profiling based on national origin or religion, and it does not apply to national security and border security investigations.


The Profiling Guidance correctly concludes, “Racial profiling in law enforcement is not merely wrong, but also ineffective.” This principle applies with equal force to national origin and religious profiling.  Under the Equal Protection Clause of the Bill of Rights, national origin and religion, like race, are suspect classifications, and discrimination on the basis of these factors is subject to strict scrutiny. Moreover, targeting individuals based on their race, ethnicity, religion or national origin, rather than evidence of criminal activity, is a counterproductive law enforcement strategy.  Casting a wide net based on broad racial, ethnic, religious or national origin profiles wastes limited law-enforcement resources and fosters mistrust and fear in the community that is targeted, reducing the likelihood of cooperation.


This is equally true for profiling in national security and border security investigations. The Director of National Intelligence’s standard for Information Sharing Environment Suspicious Activity Reporting recognizes this, stating that “factors such as race, ethnicity, national origin, or religious affiliation should not be considered as factors that create suspicion (except if used as part of a specific suspect description).”


It is important to note that the terrorism and border security loopholes have an even greater impact because the Profiling Guidance governs conduct by the Federal Bureau of Investigation and the U.S. Department of Homeland Security (DHS), including U.S. Border Patrol. The Profiling Guidance is incorporated into the Attorney General’s Guidelines for Domestic FBI Operations and DHS has incorporated the Profiling Guidance into its own racial profiling policy.


In late 2009, you created an intra-agency working group to review the Profiling Guidance. In a 2010 speech, you explained:


“I’m committed to ensuring that department policy allows us to perform our core law enforcement and national security responsibilities with legitimacy, accountability and transparency. That’s why, last fall, I initiated an internal review to evaluate the 2003 Guidance and to recommend any changes that may be warranted.”


The intra-agency working group has been operational for over two years, more than enough time to complete its internal review and make recommendations to you. Accordingly, we urge you to revise the Justice Department’s Profiling Guidance as soon as possible to make it clear that:


  • Profiling on the basis of national origin and religion are included in the prohibition on racial profiling; and
  • The prohibition on profiling for “traditional law enforcement activities” extends to national security and border security investigations.


The Profiling Guidance should prohibit inappropriate profiling of all Americans in all circumstances, consistent with our nation’s commitment to equal protection for all. Thank you for considering our views. We look forward to your response.







Senator Durbin

Rep. Conyers

Senator Daniel

Senator Blumenthal

Senator Brown (OH)

Senator Cantwell

Senator Cardin

Senator Coons

Senator Franken

Senator Harkin

Senator Kerry

Senator Lautenberg

Senator Menendez

Senator Murray

Senator Wyden

Rep. Baca

Rep. Brady

Rep. Chu

Rep. Hansen Clarke

Rep. Yvette Clarke

Rep. Cohen

Rep. Cummings

Rep. Davis

Rep. Edwards

Rep. Ellison

Rep. Faleomavaega

Rep. Filner

Rep. Gonzalez

Rep. Gutierrez

Rep. Hinchey

Rep. Jackson Jr.

Rep. Jackson Lee

Rep. Kucinich

Rep. Johnson

Rep. Lewis

Rep. Lofgren

Rep. Maloney

Rep. McCollum

Rep. McDermott

Rep. Moore

Rep. Moran

Rep. Napolitano

Rep. Holmes Norton

Rep. Olver

Rep. Pastor

Rep. Pierluisi

Rep. Rangel

Rep. Reyes

Rep. Richardson

Rep. Rothman

Rep. Rush

Rep. Kilili Camancho Sablan

Rep. Linda Sanchez

Rep. Loretta Sanchez

Rep. Schakowsky

Rep. Scott

Rep. Serrano

Rep. Sewell

Rep. Slaughter

Rep. Smith

Rep. Stark

Rep. Towns

Rep. Waters

Rep. Welch

Rep. Wilson

Rep. Woolsey