Should Racial Profiling be Prohibited at the Federal Level? (H.R. 4339)

What is H.R. 4339?

(Updated May 14, 2020)

This bill — the End Racial Profiling Act of 2019 — would commit the federal government to ending law enforcement’s use of racial profiling. It would prohibit racial profiling and require training about racial profiling issues as part of federal law enforcement training.

Additionally, this bill would:

• Mandate the collection of data on all routine or spontaneous investigatory activities through a standardized form to be submitted to the Dept. of Justice (DOJ); and
  
• Authorize the DOJ to provide grants for the development and implementation of best policing practices (including early warning systems, integration of technology, and other management protocols that discourage profiling). 
  

On an ongoing basis, the Attorney General would be required to provide periodic reports to assess the nature of any ongoing discriminatory profiling practices.

Argument in favor

Racial profiling is discriminatory, prejudicial, and oftentimes ineffective. Many law enforcement officers themselves acknowledge that their profession’s historic use of racial profiling has created mistrust beteween the police and minority communities. A federal prohibition on racial profiling could help restore some of trust between minority communities and the police, as well as security personnel like the Transportation Security Administration (TSA).

Argument opposed

The term “racial profiling” is a deliberately misleading term used to describe the legitimate use of race as a consideration in law enforcement and public security contexts. In cases where race is known to be a potentially useful indicator, law enforcement and security personnel shouldn’t be prohibited from taking this information into account. Banning the use of race in profiles by law enforcement altogether could jeopardize public safety.

Impact

Minorities; law enforcement; security personnel; use of racial profiling in law enforcement; Dept. of Justice (DOJ); and the Attorney General.

Cost of H.R. 4339

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Rep. Sheila Jackson-Lee (D-TX) introduced this bill to create a comprehensive federal commitment to ending racial profiling and addressing its harms. In a letter to her Congressional colleagues seeking cosponsors for this bill, she said: 

“This legislation is designed to enforce the constitutional right to equal protection of the laws by changing the policies and procedures underlying the practice of profiling. Events in the wake of President Trump’s Executive Orders on Immigration and threats of targeted ICE enforcement demonstrate that racial and religious profiling remain dangerous and divisive issues in our communities. Airport detentions of Muslims and immigration raids targeted at the Latino community strike at the very foundation of our democracy. Though people across our nation are protesting in response to these actions, there is no substitute for comprehensive federal anti-profiling legislation. By September 11, 2001, there was significant empirical evidence and wide agreement among Americans, including President Bush and Attorney General Ashcroft, that racial profiling was a tragic fact of life in the minority community and that the [f]ederal government should take action to end the practice. Moreover, many in the law enforcement community have acknowledged that singling out people for heightened scrutiny based on their race, ethnicity, religion, or national origin has eroded the trust in law enforcement necessary to appropriately serve and protect our communities. Despite the fact that the majority of law enforcement officers perform their duties professionally and without bias – and we value their service highly – the specter of discriminatory profiling has contaminated the relationship between the police and minority communities to such a degree that federal action is justified to begin addressing the issue… The practice of using race or other characteristics as a proxy for criminality in law enforcement undermines the progress we have made toward achieving equality under the law.”

Sen. Ben Cardin (D-MD), sponsor of this bill’s Senate companion, says: 

“The End Racial and Religious Profiling Act takes an important step toward reforming our broken criminal justice system, keeping communities of color safe, and building trust between law enforcement and the people they are supposed to serve. Discriminatory profiling unfairly targets individuals simply because of their race, religion, skin color, or country of origin, relying on harmful stereotypes and bias. This is wrong, it’s ineffective, and, as we’ve seen far too often, it can be deadly. Congress must pass this law to enact a national standard prohibiting this dangerous practice and further enforcing equal justice for all.”

The ACLU supports this bill. Its Senior Legislative Counsel, Jennifer Bellamy, says: 

“For centuries, discriminatory profiling practices have harmed communities of color. Profiling undermines the respect and trust between law enforcement and communities of color essential to police work sending the message that some citizens do not deserve equal protection under the law. We know that profiling of any kind is ineffective and diverts law enforcement’s time, money, and energy away from actual threats. The time is now to end racial profiling once and for all.”

CREDO Action also supports this bill. In a call to action, it says: 

“Racial profiling is a crisis that has an impact [on] communities of color at a striking rate. When police initiate an interaction with a person of color, they are twice as likely to threaten or use force as in an interaction with a white person. Encounters with racist police are a leading cause of death for young Black men. This is a national crisis… Even when racial profiling is not deadly, it is wrong. Our country's history is deeply rooted in racism and systemic oppression. Racial profiling is a reminder that our present institutions are still rooted in that history.”

Conservative media personality Selwyn Duke defended racial profiling in a 2017 op-ed in : 

“Though misunderstood, profiling is merely “a practice where people use an observable or known physical attribute as a proxy or estimator of some other unobservable or unknown attribute,” as Professor Walter Williams wrote in 2009. Everyone does it, too. If you cross the street to avoid a group of rough-hewn looking youths, decline to pet a strange dog, or refuse to hire as a babysitter a girl with purple hair, tattoos and body piercings, you’ve engaged in ‘profiling.’Not profiling properly risks lives. Consider that doctors take race, ethnicity and sex into account when evaluating patients. They know, for example, that Pima Indians have the world’s highest diabetes rate, Vietnamese-descent women’s cervical cancer rate is five times white women’s, and black men are twice as likely as white men to develop prostate cancer… While we could check our brains at reality’s door, reality isn’t suspended because we transition from medical to criminological science. With today’s terrorism being almost exclusively an Islamic phenomenon, that Israeli airport security scrutinizes Muslims more closely isn’t properly called prejudice but prudence. Since 96 percent of all NYC’s crime is committed by blacks and Hispanics, that 83 percent of all those stopped during the city’s erstwhile stop-and-frisk program were from those groups isn’t properly called racism, but recognizing statistics… Profiling allows us to make decisions based on scant information when the cost of obtaining more information is prohibitive. For example, flying would be safest if airport security could spend a month living with every prospective traveler. This is unrealistic, however — ergo, profiling.”

Duke also argued that the term “racial profiling” is misleading and meant to inflame opinions: 

“In reality, ‘racial profiling’ is a passion-stoking propaganda term — there’s basically no such thing. There’s only good profiling and bad profiling. Good profiling considers many factors, such as but not limited to age, sex, dress, behavior, religion and, yes, ethnicity and race, in accordance with sound criminological science. Bad profiling is governed by politics and puerile priorities… Fairness means that all groups overrepresented in a crime category factor into a relevant profile. To say only some such groups will — youths and men, for instance — while others receive a special dispensation from reality’s slings and arrows, is damnable discrimination, indeed…  Would we really rather be politically correct than alive?” 

This legislation has 63 Democratic House cosponsors. Its Senate companion, the End Racial and Religious Profiling Act, is sponsored by Sen. Ben Cardin (D-MD) with 26 Senate cosponsors, including 25 Democrats and one Independent. The ACLU, YWCA National Capital Area, NAACP, South Asian Americans Leading Together and CREDO Action have expressed support for this legislation.

Prior to the current Congressional session, Rep. John Conyers — who served as a Democratic Representative from Michigan from 1965 to 2017, and who passed away on October 27, 2019 — had introduced this legislation in every Congress since 2001. In the 115th Congress, Rep. Conyers introduced this bill on March 10, 2017. After Rep. Conyers’ retirement, Rep. Jackson Lee assumed first sponsorship of the bill on March 8, 2018. There were 81 Democratic House cosponsors of this bill in the 115th Congress, and it didn’t receive a committee vote. Its Senate companion last Congress was sponsored by Sen. Cardin with the support of 28 Senate cosponsors, including 27 Democrats and one Independent, and also didn’t receive a committee vote.

Of Note: Using a dataset of nearly 100 million municipal and state patrol traffic stops conducted in multiple jurisdictions across the U.S., the Stanford Computational Policy Lab found evidence of bias against black drivers in both highway patrol and municipal police stops. The researchers also found that the bar for searching black and Latino drivers was lower than the bar for searching white drivers. 

In recent years, high-profile deaths of minorities, including Walter L. Scott (after a traffic stop), Pamela Turner, Tamir Rice, and Antonio Zambrano-Montes, at the hands of law enforcement have highlighted the link between race issues and the concept of “reasonable suspicion of criminal conduct.” Activists argue that too often, people of color are suspected of criminal behavior in situations where white people wouldn’t be suspected of the same. 

A 2018 report from the U.S. Commission on Civil Rights found that the current lack of data on the use of force by law enforcement is exacerbated by the absence of mandatory federal reporting and standardized reporting guidelines. The Commission also found that communities perceive that police use of force is unchecked and unlawful based on three factors:

• Repeated and highly publicized fatal applications of force against unarmed civilians;
  
• Lack of accurate data on the use of force; and
  
• Lack of transparency and accountability with regard to policies and practices around the use of force.

Testifying on racial profiling at a 2010 House Judiciary Committee Subcommittee on the Constitution, Civil Rights, and Civil Liberties hearing, Amardeep Singh, program director at the Sikh Coalition, argued that racial profiling also makes police less, rather than more, effective at their jobs: 

“When race or ethnic appearance are used as one factor among others in deciding who to stop, frisk, search, or whatever, when that is done, the rate of hits, the rate of success for police goes down. It does not go up. It does not even stay the same. It goes down. It drops off, and measurably so. Why is this?... If you want to find people who are busy committing, or might commit serious crime or terrorism, you want to know who is in the car with the drug load, or who has got the weapon in the airport, the only thing that predicts that is behavior. Behavior is what the police and the security services must focus on like a laser beam. Anything that takes their attention off of that is a net loss.”

There have been cases of profiling dramatically improving law enforcement outcomes. For example, when ex-FBI special agent Bryanna Fox used statistical techniques to investigate property and violent crimes, she found three types of burglaries. Further, for burglaries that were clearly sophisticated and premeditated, she found that the criminals tended to be older, male, white, and with long criminal histories but few arrests. When police departments took Fox’s profiles into account, they solved over 300% more burglaries as compared to police departments that didn’t take Fox’s findings into account.

Media:

• Sponsoring Rep. Sheila Jackson-Lee (D-TX) Dear Colleague Letter
  
• Senate Sponsor Sen. Ben Cardin (D-MD) Press Release
  
• CREDO Action (In Favor)
  
• The Hill Op-Ed (Opposed in Concept)
  
• House Judiciary Committee Subcommittee on the Constitution, Civil Rights, and Civil Liberties Hearing (Context)
  
• CATO Institute (Context)