[Senate Hearing 112-944] [From the U.S. Government Publishing Office] S. Hrg. 112-944 ENDING RACIAL PROFILING IN AMERICA ======================================================================= HEARING before the SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND HUMAN RIGHTS of the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TWELFTH CONGRESS SECOND SESSION ---------- APRIL 17, 2012 ---------- Serial No. J-112-70 ---------- Printed for the use of the Committee on the Judiciary [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] S. Hrg. 112-944 ENDING RACIAL PROFILING IN AMERICA ======================================================================= HEARING before the SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND HUMAN RIGHTS of the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TWELFTH CONGRESS SECOND SESSION __________ APRIL 17, 2012 __________ Serial No. J-112-70 __________ Printed for the use of the Committee on the Judiciary [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] U.S. GOVERNMENT PUBLISHING OFFICE 20-969 PDF WASHINGTON : 2016 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Publishing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa, Ranking DIANNE FEINSTEIN, California Member CHUCK SCHUMER, New York ORRIN G. HATCH, Utah DICK DURBIN, Illinois JON KYL, Arizona SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina AL FRANKEN, Minnesota JOHN CORNYN, Texas CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah RICHARD BLUMENTHAL, Connecticut TOM COBURN, Oklahoma Bruce A. Cohen, Chief Counsel and Staff Director Kolan Davis, Republican Chief Counsel and Staff Director ------ Subcommittee on the Constitution, Civil Rights and Human Rights DICK DURBIN, Illinois, Chairman PATRICK J. LEAHY, Vermont LINDSEY GRAHAM, South Carolina, SHELDON WHITEHOUSE, Rhode Island Ranking Member AL FRANKEN, Minnesota JON KYL, Arizona CHRISTOPHER A. COONS, Delaware JOHN CORNYN, Texas RICHARD BLUMENTHAL, Connecticut MICHAEL S. LEE, Utah TOM COBURN, Oklahoma Joseph Zogby, Democratic Chief Counsel Walt Kuhn, Republican Chief Counsel C O N T E N T S ---------- APRIL 17, 2012, 10:00 A.M. STATEMENTS OF COMMITTEE MEMBER Page Durbin, Hon. Dick, a U.S. Senator from the State of Illinois..... 1 prepared statement........................................... 129 WITNESSES Witness List..................................................... 43 Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland....................................................... 4 prepared statement........................................... 45 Chu, Hon. Judy, a Representative in Congress from the State of California..................................................... 9 prepared statement........................................... 49 Clegg, Roger, President and General Counsel, Center for Equal Opportunity, Falls Church, Virginia............................ 20 prepared statement........................................... 51 Conyers, Jr., Hon. John, a Representative in Congress from the State of Michigan.............................................. 5 Davis, Ronald L., Chief of Police, City of East Palo Alto, California..................................................... 12 prepared statement........................................... 59 Ellison, Hon. Keith, a Representative in Congress from the State of Minnesota................................................... 8 prepared statement........................................... 66 Gale, Frank, National Second Vice President, Grand Lodge, Fraternal Order of Police, Denver, Colorado.................... 17 prepared statement........................................... 67 Gutierrez, Hon. Luis V., a Representative in Congress from the State of Illinois.............................................. 6 prepared statement........................................... 76 Harris, David A., Professor of Law and Associate Dean for Research, University of Pittsburgh School of Law, Pittsburgh, Pennsylvania................................................... 21 prepared statement........................................... 81 Romero, Anthony, Executive Director, American Civil Liberties Union, New York, New York...................................... 15 prepared statement........................................... 100 Wilson, Hon. Frederica, a Representative in Congress from the State of Florida........................................................ 10 prepared statement........................................... 127 MISCELLANEOUS SUBMISSIONS FOR THE RECORD African American Ministers in Action (AAMIA), A Project of People For the American Way, Minister Leslie Watson Malachi, Director, statement...................................................... 131 African American Ministers in Action et al., April 17, 2012, letter......................................................... 507 Alliance for a Just Society, LeeAnn Hall, Executive Director, statement...................................................... 141 American-Arab Anti-Discrimination Committee (ADC), Washington, DC, statement.................................................. 166 American Civil Liberties Union (ACLU) of Illinois, Harvey Grossman, Legal Director, statement............................ 145 American Friends Service Committee (AFSC), Philadelphia, Pennsylvania, statement........................................ 150 American Immigration Lawyers Association (AILA), Washington, DC, statement...................................................... 162 Americans for Immigrant Justice, Cheryl Little, Executive Director, statement............................................ 168 Amnesty International USA, Suzanne Nossel, Executive Director, statement...................................................... 172 Anti-Defamation League (ADL), Deborah M. Lauter, Director, Civil Rights, Michael Lieberman, Washington Counsel, and Stacy Burdett, Washington Director, statement........................ 183 Arab American Institute, The, Danielle Malaty, Manager, Government Relations in Domestic Policy, statement............. 187 Asian American Center for Advancing Justice, April 17, 2012, statement...................................................... 192 Bill of Rights Defense Committee (BORDC), Shahid Buttar, Executive Director, statement.................................. 195 Black Alliance for Just Immigration (BAJI), Gerald Lenoir, Executive Director, statement.................................. 198 Brennan Center for Justice at New York University School of Law, Faiza Patel and Elizabeth Goitein, Co-Directors, Liberty and National Security Program, statement........................... 201 ``Call the NYPD,'' photo campaign on social media, statement..... 213 Center for Constitutional Rights (CCR), Vincent Warren, Executive Director, statement............................................ 216 Center for Latino Progress--CPRF, Yanil Teron, Executive Director, statement............................................ 225 Citizens United for Rehabilitation of Errants (CURE)--Virginia, Carla Peterson, Executive Director, statement.................. 607 City of Riverside Police Department, Riverside, California, Sergio G. Diaz, Chief of Police, statement..................... 228 City of Seattle Immigrant and Refugee Commission, Seattle, Washington, Jesus Y. Rodriguez and Devon Abdallah, Co-Chairs, statement...................................................... 231 Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA), Los Angeles, California, Angelica Salas, Executive Director, statement...................................................... 235 Comunidad Liberacion/Liberation Community, Rev. Anne Dunlap, Pastor, statement.............................................. 239 Council on American-Islamic Relations (CAIR), Robert S. McCaw, statement...................................................... 253 Council on American-Islamic Relations (CAIR-Chicago), Chicago, Illinois, statement............................................ 242 Defending Dissent Foundation (DDF), Woody Kaplan, President, statement...................................................... 257 Delta Sigma Theta Sorority, Incorporated, Cynthia Butler McIntyre, President, statement................................. 264 Desis Rising Up and Moving (DRUM), Fahd Ahmed, Legal and Policy Director, statement............................................ 267 Drug Policy Alliance, Jasmine L. Tyler, Deputy Director, National Affairs, statement............................................. 272 Episcopal Church, The, Bishop Stacy F. Sauls, Chief Operating Officer, statement............................................. 282 Hip Hop Caucus, April 17, 2012, statement........................ 289 Homies Unidos, Alexander Sanchez, Executive Director, statement.. 293 Houston United/Houston Unido, Jannell Robles, Crimmigration Committee Chair, statement..................................... 297 Human Rights Watch, Antonio M. Ginatta, U.S. Program Advocacy Director, statement............................................ 302 Illinois Association of Chiefs of Police (ILACP), R.T. Finney, President and Retired Chief, Champaign Police Department, Champaign, Illinois, statement................................. 306 Illinois Coalition for Immigrant and Refugee Rights (ICIRR), Fred Tsao, Policy Director, statement............................... 310 Immigration Equality, Rachel B. Tiven, Executive Director, statement...................................................... 312 Indo-American Center (IAC), Jay Luthra, Executive Director, statement...................................................... 315 Interfaith Alliance, Rev. Dr. C. Welton Gaddy, President, statement...................................................... 318 Inter-Faith Committee on Latin America (IFCLA)--St. Louis, Missouri, Marilyn Lorenz-Weinkauff, Program Coordinator, statement...................................................... 519 International Center for Advocates Against Discrimination (ICAAD), Hansdeep Singh and Jaspreet Singh, Co-Founders and Legal Program Directors, statement............................. 320 Japanese American Citizens League (JACL), Floyd Mori, National Executive Director, statement.................................. 327 Kalamazoo Department of Public Safety, Kalamazoo, Michigan, Chief Jeff Hadley, statement......................................... 332 Lawyers' Committee for Civil Rights Under Law, Washington, DC, statement...................................................... 333 Leadership Conference on Civil and Human Rights, The, et al., Washington, DC, April 16, 2012, letter......................... 342 Leadership Conference on Civil and Human Rights, The, Wade Henderson, President and Chief Executive Officer, statement.... 554 Maine People's Alliance (MPA), Charlene Childs, Assistant to the Executive Director, statement.................................. 347 Meiklejohn Civil Liberties Institute, Ann Fagan Ginger, Executive Director Emeritus, statement................................... 352 Metro Atlanta Task Force for the Homeless, Anita L. Beaty, Executive Director, statement.................................. 356 Migrant Justice, Burlington, Vermont, April 17, 2012, statement to Senator Durbin.............................................. 359 Migrant Justice, Burlington, Vermont, April 17, 2012, statement to Senator Leahy............................................... 363 Missouri Immigrant and Refugee Advocates, Vanessa Crawford, Executive Director, statement.................................. 367 Montana Organizing Project, Molly Moody, and Indian People's Action, Michaelynn Hawk, statement............................. 371 Montgomery County Civil Rights Coalition (MCCRC), Sue Udry, Co- Founder, statement............................................. 375 Muslim Advocates and 27 American Muslim, Arab, Middle Eastern, and South Asian Organizations, April 17, 2012, statement....... 379 Muslim Legal Fund of America, Coleen Rowley, Vice President, Board of Directors, statement.................................. 390 Muslim Public Affairs Council (MPAC), Salam Al-Marayati, President, statement........................................... 407 National Action Network (NAN), Reverend Al Sharpton, President and Founder, Reverend Dr. W. Franklyn Richardson, Chairman, and Tamika Mallory, National Executive Director, statement......... 417 National Asian Pacific American Bar Association (NAPABA), Tina Matsuoka, Executive Director, statement........................ 420 National Association for the Advancement of Colored People (NAACP), Benard H. Simelton, President, Alabama State Conference of the NAACP, statement............................. 135 National Association for the Advancement of Colored People (NAACP), Hilary O. Shelton, Director, Washington Bureau, and Senior Vice President for Advocacy and Policy, statement....... 412 National Association of Social Workers (NASW), Melvin H. Wilson, Manager, Department of Social Justice and Human Rights, statement...................................................... 424 National Black Caucus of State Legislators (NBCSL), LaKimba B. DeSadier, Executive Director, statement........................ 426 National Coalition for Immigrant Women's Rights (NCIWR), April 17, 2012, statement............................................ 437 National Congress of American Indians (NCAI), Washington, DC, statement...................................................... 443 National Council of La Raza (NCLR), Laura Vazquez, Immigration Legislative Analyst, statement................................. 446 National Gay and Lesbian Task Force Action Fund, Rea Carey, Executive Director, statement.................................. 457 National Hispanic Media Coalition (NHMC), Alex Nogales, President and Chief Executive Officer, statement......................... 461 National Immigrant Justice Center (NIJC), Mary Meg McCarthy, Executive Director, statement.................................. 285 National Immigration Forum, Ali Noorani, Executive Director, statement...................................................... 464 National Immigration Law Center (NILC), April 17, 2012, statement 467 National Korean American Service and Education Consortium (NAKASEC), Morna Ha, Executive Director, statement............. 474 National Network for Arab American Communities (NNAAC), Nadia Tonova, Director, statement.................................... 478 NETWORK, A National Catholic Social Justice Lobby, Sr. Mary Ellen Lacy D.C., statement........................................... 482 New England Muslim Bar Association (NEMBA), Shannon Erwin, President, statement........................................... 485 North American South Asian Bar Association (NASABA), Jolsna John, President, statement........................................... 490 Oregon Action, Ron Williams, Executive Director, statement....... 494 Our Lady of Victory Missionary Sisters, Sister Beatrice Haines, OLVM, President, statement..................................... 497 Pax Christi USA, April 13, 2012, statement....................... 500 Providence Youth Student Movement (PrYSM), Chanravy Proeung, Executive Director, statement.................................. 501 Rights Working Group (RWG), Margaret Huang, Executive Director, statement...................................................... 509 San Francisco District Attorney's Office, San Francisco, California, George Gascon, District Attorney, statement........ 522 Sikh American Legal Defense and Education Fund (SALDEF), Jasjit Singh, Associate Executive Director, statement................. 524 Sikh Coalition, New York, New York, statement.................... 528 Sisters of the Most Precious Blood of O'Fallon, Missouri, The Leadership Team, statement..................................... 531 Sojourners, Lisa Sharon Harper, Director of Mobilizing, statement 533 South Asian Americans Leading Together (SAALT), Deepa Iyer, Executive Director, statement.................................. 538 South Asian Bar Association of New York (SABANY), Neha Dewan, President, statement........................................... 546 South Asian Bar Association of Northern California, Minal J. Belani, Esq., Civil Rights Co-Chair, statement................. 544 Southern Poverty Law Center (SPLC), Mary Bauer, Legal Director, statement...................................................... 549 Virginia Organizing, Joe Szakos, Executive Director, statement... 608 Washington Community Action Network (Washington CAN), Jill Reese and Rachel Berkson, Co-Executive Directors, statement.......... 611 Washington Defender Association (WDA), Travis Stearns, Deputy Director, statement............................................ 615 Women's Voices Raised for Social Justice, Alice Serrano, statement...................................................... 620 ENDING RACIAL PROFILING IN AMERICA ---------- TUESDAY, APRIL 17, 2012 United States Senate, Subcommittee on the Constitution, Civil Rights and Human Rights, Committee on the Judiciary, Washington, DC. The Subcommittee met, pursuant to notice, at 10 a.m., in Room SD-226, Dirksen Senate Office Building, Hon. Dick Durbin, Chairman of the Subcommittee, presiding. Present: Senators Durbin, Franken, Coons, Blumenthal, and Graham. OPENING STATEMENT OF HON. DICK DURBIN, A U.S. SENATOR FROM THE STATE OF ILLINOIS Chairman Durbin. Good morning. This hearing of the Subcommittee on the Constitution, Civil Rights and Human Rights will come to order. Our hearing today will focus on a civil rights issue that goes to the heart of America's promise of equal justice under law: protecting all Americans from the scourge of racial profiling. Racial profiling is not new. At the dawn of our Republic, roving bands of white men known as ``slave patrols'' subjected African American freedmen and slaves to searches, detentions, and brutal violence. During the Great Depression, many American citizens of Hispanic descent were forcibly deported to Mexico under the so-called Mexican repatriation. And during World War II, tens of thousands of innocent Japanese Americans were rounded up and held, confined in internment camps. Twelve years ago--12 years ago--in March 2000, this Subcommittee held the Senate's first ever hearing on racial profiling. It was convened by then-Senator John Ashcroft, who would later be appointed Attorney General by President George W. Bush. In February 2001, in his first Joint Address to Congress, President Bush said that racial profiling is ``wrong and we will end it in America.'' We take the title of today's hearing from the promise President Bush made that night 11 years ago. In June 2001, our former colleague Senator Russ Feingold of Wisconsin, my predecessor as Chairman of this Subcommittee, held the Senate's second, and most recent, hearing on racial profiling. I was there. There was bipartisan agreement about the need to end racial profiling. Then came 9/11. In the national trauma that followed, civil liberties came face to face with national security. Arab Americans, American Muslims, and South Asian Americans faced national origin and religious profiling. To take one example, the Special Registration program targeted Arab and Muslim visitors, requiring them to promptly register with the INS or face deportation. At the time I called for the program to be terminated. There were serious doubts if it would help us in any way to combat terrorism. Terrorism experts have since concluded that Special Registration wasted homeland security resources and, in fact, alienated patriotic Arab Americans and American Muslims. More than 80,000 people registered under that program; more than 13,000 were placed in deportation proceedings. Even today, many innocent Arabs and Muslims face deportation because of Special Registration. So how many terrorists were identified by the Special Registration program? None. Next Wednesday, the Supreme Court will hear a challenge to Arizona's controversial immigration law. The law is one example of a spate of Federal, State, and local measures in recent years that, under the guise of combating illegal immigration, have subjected Hispanic Americans to an increase in racial profiling. Arizona's law requires police officers to check the immigration status of any individual if they have ``reasonable suspicion'' that the person is an undocumented immigrant. Well, what is the basis for reasonable suspicion? Arizona's guidance on the law tells police officers to consider factors such as how someone is dressed and their ability to communicate in English. Two former Arizona Attorneys General, joined by 42 other former State Attorneys General, filed an amicus brief in the Arizona case in which they said, ``application of the law requires racial profiling.'' And, of course, African Americans continue to face racial profiling on the streets and sidewalks of America. The tragic, tragic killing of Trayvon Martin is now in the hands of the criminal justice system, but I note that, according to an affidavit filed by investigators last week, the accused defendant ``profiled'' Trayvon Martin and ``assumed Martin was a criminal.'' The senseless death of this innocent young man has been a wake-up call to America. And so 11 years after the last Senate hearing on racial profiling, we return to the basic question: What can be done to end racial profiling in America? We can start by reforming the Justice Department's racial profiling guidance issued in 2003 by Attorney General John Ashcroft. The guidance prohibits the use of profiling by Federal law enforcement in ``traditional law enforcement activities,'' and that is a step forward. However, this ban does not apply to profiling based on religion and national origin, and it does not apply to national security and border security investigations. In essence, these exceptions are a license to profile American Muslims and Hispanic Americans. As the nonpartisan Congressional Research Service concluded, the guidance's ``numerous exceptions'' may ``invite broad circumvention'' for ``individuals of . . . Middle Eastern origin'' and ``profiling of Latinos . . . would apparently be permitted.'' Today Congressman John Conyers and I are sending a letter, signed by 13 Senators and 53 Members of the House, asking Attorney General Holder to close the loopholes in the Justice Department's racial profiling guidance. Congress should also pass the End Racial Profiling Act, and I welcome the attendance of my colleague and a former Member of this Committee, Senator Cardin of Maryland, who has taken up this cause from our colleague Senator Feingold, and he is here today to testify. Let us be clear, and I want to say this and stress it: The overwhelming majority of law enforcement officers perform their jobs admirably, honestly, and courageously. They put their lives on the line to protect us every single day. But the inappropriate actions of the few who engage in racial profiling create mistrust and suspicion that hurt all police officers. We will hear testimony to what has been done in a positive way to deal with this issue by a superintendent of police. That is why so many law enforcement leaders strongly oppose racial profiling. Racial profiling undermines the rule of law and strikes at the core of our Nation's commitment to equal protection for all. As you will hear from the experts on our panel today, the evidence clearly demonstrates that racial profiling simply does not work. I hope today's hearing can be a step toward ending racial profiling in America at long last. Senator Graham is running a little late. Senator Leahy is out of the Senate this morning but was kind enough to allow me to convene this hearing, and I am sure he will add a statement to the record. [The prepared statement of Chairman Dick Durbin appears as a submission for the record.] Chairman Durbin. I am going to open the floor to Senator Graham when he does arrive, but for the time being, because we have many colleagues here who have busy schedules of their own, I want to turn to the first panel of witnesses. At the outset, I do want to note that I invited the Department of Justice to participate in today's hearing, but they declined. We are honored to be joined today by our colleagues from the Senate and the House. In keeping with the practice of this Committee, first we will hear from Members of the Senate, then Members of the House, a practice which I loathed in the House, but now that we are running this show, I am afraid you are just going to have to live with it, my House colleagues. Each witness will have 3 minutes for an opening statement. Your complete written statement will be included in the record. The first witness is Senator Cardin--he is a former Member of this Committee--Senate sponsor of S. 1670, the End Racial Profiling Act, which I am proud to cosponsor. This is Senator Cardin's second appearance before this Subcommittee. He testified before us last year at the first ever hearing of this Committee on the civil rights of American Muslims. Senator Cardin, we are pleased that you could join us today and please proceed. STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR FROM THE STATE OF MARYLAND Senator Cardin. Well, Senator Durbin, first let me thank you for your leadership on this Subcommittee. The fact that we have this Subcommittee is a testament to your leadership in making clear that civil and human rights are going to be a priority of the U.S. Senate. So I thank you for your leadership and thank you very much for calling this hearing. It is a pleasure to be here with all my colleagues, but I particularly wanted to acknowledge Congressman Conyers and his extraordinary life of leadership on behalf of civil rights and these issues. Congressman Conyers was a real mentor to me when I was in the House, and he still is, and we thank you very much for your leadership on this issue. Senator Durbin, you pointed out that the Nation was shocked--if I could ask unanimous consent to put my entire statement in the record along with the list of the many organizations that are supporting the legislation that I filed, S. 1670. As you pointed out, Senator Durbin, the Nation was shocked by the tragedy that took place in Sanford, Florida, the tragic death of 17-year-old Trayvon Martin, a very avoidable death. And the question I think most people are asking--and we want justice in this case, and we are pursuing that, and we have a Department of Justice investigation, and we all very much want to see that investigation carried out, not only to make sure that justice is carried forward as far as those responsible for his death, but also as to how the investigation itself was handled. But I think the question that needs to be answered is whether race played a role in Trayvon Martin being singled out by Mr. Zimmerman, and that, of course, would be racial profiling, an area that we all believe needs to be--we need to get rid of that as far as the legitimacy of using racial profiling in law enforcement. In October of last year, I filed the End Racial Profiling Act, and as you pointed out, carrying on from Senator Feingold's efforts on behalf of this legislation. I thank you very much for your leadership as a cosponsor. We have 12 Members of the Senate who have cosponsored this legislation, including the Majority Leader, Senator Harry Reid, is a cosponsor. Racial profiling is un-American. It is against the values of our Nation. It is contrary to the 14th Amendment to the Constitution's ``equal protection of the laws.'' It is counterproductive in keeping us safe. It is wasting the valuable resources that we have, and it has no place in modern law enforcement. We need a national law, and that is why I encourage the Committee to report S. 1670 to the floor. It prohibits the use of racial profiling, that is, using race, ethnicity, national origin, or religion in selecting which individual is to be subject to a spontaneous investigation, activity such as a traffic stop, such as interviews, such as frisks, et cetera. It applies to all levels of government. It requires mandatory training, data collection by local and State law enforcement, and a way of maintaining adequate policies and procedures designated to end racial profiling. The States are mandated to do that or risk the loss of Federal funds. The Department of Justice is granted the authority to make grants to State and local governments to advance the best practices. As I pointed out, it has the support of numerous groups, and you will be hearing from some of them today. Let me just conclude--because my statement will give all the details of the legislation--by quoting our former colleague Senator Kennedy when he said, ``Civil rights is the great unfinished business of America.'' I think it is time that we move forward in guaranteeing to every citizen of this country equal justice under law, and S. 1670 will move us forward in that direction. [The prepared statement of Senator Cardin appears as a submission for the record.] Chairman Durbin. Thanks, Senator Cardin. I might also add that we are at capacity in this room, and anyone unable to make it inside the room, we will have an overflow room in Dirksen G50, which is two floors below us here. Senator Graham suggests that we proceed with the witnesses. Next up is Congressman John Conyers, the House sponsor of the End Racial Profiling Act and Ranking Member of the House Judiciary Committee. Serving in the House of Representatives since 1965, John Conyers is the second longest serving Member, I think second to another Member from Michigan, if I am not mistaken. Congressman Conyers testified at both the previous Senate hearings on racial profiling in 2000 and 2001. Congressman Conyers, we are honored to have you here as a witness, and the floor is yours. STATEMENT OF HON. JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN Representative Conyers. Thank you, Mr. Chairman, and to your colleague, who is another former House Member, if I remember correctly, and Senator Ben Cardin as well. All of you are working in the backdrop of a huge discussion that has been going on for quite some time. When I came to the Congress and asked to go on the Judiciary Committee in the House and that was granted, Emanuel Celler was then the Chairman, who did such landmark work in the Civil Rights Act of 1964. And then we followed up with the Voter Rights Act of 1965. And from that time on, a group of scholars, activist organizations, civil rights people, and Americans of good will have all begun examining what brings us here today and accountable for the incredible long line that is waiting to get into this and the holding room today. I come here proud of the fact that there is support growing in this area. Only yesterday we had a memorial service for John Payton, known by most of us here for the great work that he has done and contributed in civil rights, not just in the courts and in the law but in what I think is the purpose of our hearing here today, namely, to have honest discussions about this subject so that we can move to a conclusion of this part of our history. And so I am just so proud of all of you for coming here and continuing this discussion because it is going to turn on more than just the legislators or the Department of Justice, and I am with you in improving some of their recommendations, and I commend Eric Holder for the enormous job that he has been doing in that capacity. But this is a subject that is a part of American history. The one thing that I wanted to contribute here is what racial profiling is not. Racial profiling does not mean we cannot refer to the race of a person if it is subject-specific or incident-specific. We are not trying to take the description of race out of law enforcement and its administration. What we are saying is that racial profiling must not be subject-specific or incident-specific. That is what we are trying to do here today. It is a practice that is hard to root out. I join in praising the overwhelming majority of law enforcement men and women who want to improve this circumstance, but, you know, one of the greatest race riots in Detroit that occurred was because of a police incident was started. We have in Detroit right now a coalition against police brutality. Ron Scott, an activist and a law student, is working on that, has been working there for years. And so we encourage not only this legislative discussion about an important subject, but we--and we praise our civil rights organizations that have been so good at this--the NAACP, the Legal Defense Fund of NAACP, the American Civil Liberties Union, and scores of coalitions of community and State organizations that have all been working on this, just as we have and are. So I believe that there is going to be a time very soon when we will pass the legislation that you have worked on in the House and the Senate and that we will enjoy that day forward when we will celebrate this movement forward to take the discussion of race out of our national conversation, not because we are sick and tired of it, but because it is not needed any further. I thank you very much for this invitation. Chairman Durbin. Congressman Conyers, it is an honor to have you in the Senate Judiciary Committee hearing. I thank you very much. Our next witness is my friend and Illinois colleague Congressman Luis Gutierrez, who represents the 4th Congressional District and has done so since 1993. He chairs the Congressional Hispanic Caucus' Immigration Task Force, and he is a long-time champion for immigration reform. There are many outstanding Hispanic political leaders in America, but none more forceful and more articulate and more of a leader than my colleague Congressman Gutierrez. Thank you for joining us. STATEMENT OF HON. LUIS V. GUTIERREZ, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS Representative Gutierrez. Thank you so much, Chairman Durbin and Ranking Member Graham, for inviting me to testify here today. One of the proudest things I am being from the State of Illinois is the senior Senator from my State. I am so happy and delighted to be here with you, Senator Durbin. I have traveled from coast to coast to visit dozens of cities and communities and to listen to immigrants' stories. Some of my colleagues have visited their cities that are here with me today. And immigrants everywhere tell me that they are regarded with suspicion. They tell me they are frequently treated differently because of the way they look, sound, or spell their last name. In Alabama, I met 20-year-old Martha, a young woman raised in the U.S. One late afternoon, while driving, she was pulled over. She was arrested for driving without a license and jailed so her status could be checked. Because her U.S. citizen husband was not present, their Alabama-born 2-year-old son was taken from the back seat of her car and turned over to the State welfare agency. In South Carolina, I met Gabino, who has been in the U.S. for nearly 13 years. He is married, the father of two South Carolina-born kids; he works hard and owns his own home. Gambino was stopped because he was pulling into his mobile home community, one of three other Hispanic residents stopped that evening. Gambino was arrested for driving without a license, and he was then placed in deportation proceedings. We can all guess why the police chose to stop Gabino and Martha. Profiling Hispanics and immigrants is the most efficient way to get someone deported. But you cannot tell if someone is undocumented by the way they look or dress or where they live. In Chicago, a Puerto Rican constituent of mine was detained for 5 days under suspicion of being undocumented. Indeed, sadly, Senators, there are hundreds if not thousands of cases of unlawfully detained U.S. citizens and legal residents in the United States each year in violation of their constitutional rights. Some of them have even been deported and then been brought back to the United States of America. That is not an old story. That is a story of today. The Federal Government took a step in the right direction when it legally challenged the ``Show me your papers'' laws in Alabama, South Carolina, and Arizona because the State laws are unconstitutional and interfere with the Federal Government's authority to set and enforce immigration policy. But it makes no sense to file suit against unconstitutional laws on the one hand and on the other hand allow those same laws to funnel people into our detention centers and deportation pipeline. Gabino has been denied relief from deportation because he has been stopped too many times, according to the Federal Government, for driving without a license. The Government is complicit in such serial profiling because while the States cannot deport Gabino and break up his family of American citizens, the Federal Government is doing just that. And programs like 287(g) and Secure Communities end up ensnaring tens of thousands of Gabinos every year. Because of the racial profiling, the programs incentivize. If we are serious about truly ending racial profiling, we need to back up our lawsuits with actions that protect families and citizens and children and uphold our Constitution. I guess the gist of it is I am happy when the Federal Government says this is racial profiling, we are going to fight it, and they go into the Federal court in Arizona, in South Carolina, and in Alabama. But until we tell the local officials if you continue your serial profiling, we are not going to deport those people, they are going to continue to do it. It just incentivizes. So I hope we can have a conversation about that also. Thank you so much for having me here this morning. [The prepared statement of Representative Luis V. Gutierrez appears as a submission for the record.] Chairman Durbin. Thank you, Congressman Gutierrez. Congressman Keith Ellison of Minnesota is serving his third term representing the 5th Congressional District in that State. He co-chairs the Congressional Progressive Caucus. Congressman Ellison enjoys a moment in history here as the first Muslim elected to the U.S. Congress. Previously he served two terms in the Minnesota House of Representatives. Congressman Ellison, welcome. The floor is yours. STATEMENT OF HON. KEITH ELLISON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MINNESOTA Representative Ellison. Thank you, Senator Durbin. Also, thank you, Senator Graham. Thank you for holding this important hearing. Also, thank you for urging Attorney General Holder to revise the Justice Department's racial profiling guidance. It is very important. As you know, that guidance has a loophole allowing law enforcement to profile American citizens based on religion and national origin. While any profiling of Americans based on race, ethnicity, religion, or national origin is disturbing, I think it is important also to note that it is poor law enforcement. Law enforcement is a finite resource. Using law enforcement resources for profiling as opposed to relying on articulable facts based on behavior suggesting a crime is a waste of that law enforcement resource. It leaves us less safe and more at risk when we do not target based on conduct and behavior suggestive of a crime but based on other considerations informed by prejudice. My comments today will focus on the religious profiling of American Muslims. Up to 6 million Americans know what it is like to be looked upon with suspicion in post-9/11 America, perhaps even before. Although Muslim Americans work hard and play by the rules and an infinitesimally small number do not, many even live the American dream and send their kids to college and earn a living just like everyone else. Yet many know all too well what it means to be pulled off of an airplane, pulled out of line, denied service, called names, or even physically attacked. Like other Americans, Muslim Americans want law enforcement to uphold public safety and not be viewed as a threat, but as an ally. When the FBI, for example, shows up at the homes and offices of American Muslims who have not done anything wrong, it makes them feel targeted and under suspicion, and it diminishes the important connection between law enforcement and citizen that is necessary to protect all of us. When Muslim Americans get pulled out of line at an airport and are questioned for hours, asked questions--and these are questions actually asked: ``Where do you go to the mosque?'' ``Why did you give them a $200 donation?'' ``Do you fast?'' ``Do you pray?'' ``How often?'' When questions like this are asked which have nothing to do with conduct or behavior suggestive of a crime, it erodes the important connection between law enforcement and citizen. No Americans should be forced to answer questions about how they worship. I was particularly disturbed when I heard stories coming out of the controversy in New York about kids being spied on in colleges at Muslim Student Associations. I was very proud when my son was elected president of the Muslim Student Association at his college, but I wonder: Was my 18-year-old son subject to surveillance like the kids were at Yale, Columbia, and Penn? He is a good kid, has never done anything wrong, and I worry to think that he might be in somebody's files simply because he wanted to be active on campus. I am a great respecter of law enforcement, and I recognize and appreciate the tough job they have to keep us safe. But I think it is very important to focus on the proper use of law enforcement resources and not to give an opening for someone's stereotype or prejudice. As one Bush administration official once said, ``religious or ethnic or racial stereotyping is simply not good policing,'' and it threatens the values Americans hold dear. To fix this problem once and for all, I urge the Attorney General to close the loophole in the Justice Department's racial profiling guidance, and I urge my colleagues in Congress to pass the End Racial Profiling Act. Thank you. [The prepared statement of Representative Keith Ellison appears as a submission for the record.] Chairman Durbin. Thanks, Congressman Ellison. I could have added in my opening statement comments made by President George W. Bush after 9/11, which I thought were solid statements of constitutional principle, particularly when it came to those adherents of the Muslim faith, that our war is not against this Islamic religion but against those who would corrupt it, distort it, and misuse it in the name of terrorism. And I thank you for your testimony. Representative Ellison. Thank you, sir. Chairman Durbin. Congresswoman Judy Chu represents the 32nd District in California since 2009. She was the first Chinese American woman ever elected to Congress. She chairs the Congressional Asian Pacific American Caucus. Formerly she served in the California State Assembly. We are honored that you are here today. Please proceed. STATEMENT OF HON. JUDY CHU, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA Representative Chu. Thank you, Senator. As Chair of the Congressional Asian Pacific American Caucus, I am grateful for the opportunity to speak here today about ending racial profiling in America. Asian Americans and Pacific Islanders, like other minority communities, have felt the significant effects of racial profiling throughout American history, from the Chinese Exclusion Act to the Japanese American interment and the post-9/11 racial profiling of Arabs, Sikhs, Muslims, and South Asian Americans. We know what it is like to be targeted by our own Government. It results in harassment, bullying, and sometimes even violence. In the House Judiciary Committee, we really listened to the anguished testimony of Sikh Americans constantly humiliated as they were pulled out of lines at airports because of their turbans and made to wait in glass cages like animals on display. They were pulled into rooms to be interrogated for hours, and even infants were searched. This has forced Sikh Americans and Muslim Americans to fly less frequently or remove religious attire just to accommodate these unfairly targeted practices. And just last year, I was shocked to learn about the activities of the New York Police Department and the CIA who were secretly spying on Muslim Americans. Despite the lack of any real evidence of wrongdoing, officers were monitoring Muslim American communities and eavesdropping on families, recording everything from where they prayed to the restaurants they ate in. The NYPD entered several States in the Northeast to monitor Muslim student organizations at college campuses. These students had done nothing suspicious. The only thing they were guilt of was practicing Islam. This type of behavior by law enforcement is a regression to some of the darkest periods of our history where we mistrusted our own citizens and spied on their daily lives, and it has no place in our modern society. When law enforcement uses racial profiling against a group, it replaces trust with fear and hurts communication. The community and law enforcement instead need to be partners to prevent crimes and assure the safety of all Americans. When the civil liberties of any group are violated, we all suffer. In fact, over 60 years ago, during World War II, 120,000 Japanese Americans lost everything that they had and were relocated to isolated internment camps throughout the country because of hysteria and scapegoating. In the end, not a single case of espionage was ever proven, but there were not enough voices to speak up against this injustice. Today there must be those voices that will speak up. We must stand up for the rights of all Americans. That is why I urge all Members of Congress to support the End Racial Profiling Act. We must protect the ideals of justice and equal protection under the law so that our country is one where no one is made to feel unsafe, unequal, or un-American because of their faith or ethnicity. Thank you. [The prepared statement of Representative Judy Chu appears as a submission for the record.] Chairman Durbin. Thank you, Congresswoman. The next witness is Congresswoman Frederica Wilson. She represents the 17th Congressional District, which, as I understand, includes Sanford, Florida. Previously she served in the Florida House of Representatives from 1999 to 2002 and in the Florida Senate from 2003 to 2010. Congresswoman Wilson, thank you for joining us today, and proceed. STATEMENT OF HON. FREDERICA WILSON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA Representative Wilson. Thank you. I represent Miami, where Trayvon is from. He was murdered in Sanford. Thank you. Thank you, Chairman Durbin, Ranking Member Graham, Senator Blumenthal, and other Members of the Subcommittee. I thank you for inviting me to testify today on the issue of racial profiling. Last week, after 45 days, an arrest was finally made in the shooting death of my constituent, Trayvon Martin. Trayvon was a 17-year-old boy walking home from a store. He was unarmed and simply walking with Skittles and iced tea. He went skiing in the winter and horseback riding in the summer. His brother and best friend is a senior at Florida International University of Miami. A middle-class family, but that did not matter. He was still profiled, followed, chased, and murdered. This case has captured international attention and will go down in history as a textbook example of racial profiling. His murder affected me personally, and it broke my heart again. I have buried so many young black boys. It is extremely traumatizing for me. When my own son, who is now a school principal, learned how to drive, I bought him a cell phone because I knew he would be profiled, and he was. He is still fearful of law enforcement and what they might do when he is driving. I have three grandsons, a 1-, a 3-, and a 5-year-old. I hope we can solve this issue before they receive a driver's license. I pray for them even now. There is a real tension between black boys and the police, not perceived but real. If you walk into any inner-city school and ask the students, ``Have you ever been racially profiled?'' everyone will raise their hands--boys and girls. They have been followed as they shop in stores. They have been stopped by the police for no apparent reason. And they know at a young age that they will be profiled. I am a staunch child advocate. I do not care what color the child is. I was a school principal, a school board member, a State legislator, and now in Congress. I desperately care about the welfare of all children. They are my passion. But I have learned from my experiences that black boys in particular are at risk. Years of economic and legal disenfranchisement, the legacy of slavery and Jim Crow have led to serious social, economic, and criminal justice disparities and fueled prejudice against black boys and men. Trayvon Martin was a victim of this legacy--this legacy that has led to fear, this legacy that has led to the isolation of black males. This legacy has led to racial profiling. Trayvon was murdered by someone who thought he looked suspicious. I established the Council on the Social Status of Black Men and Boys in the State of Florida when I was in the State Senate. I believe we need a council or commission like this on the national and Federal level. Everyone should understand that our entire society is impacted. A Federal Commission on the Social Status of Black Men and Boys should be established specifically to focus on alleviating and correcting the underlying causes of higher rates of school expulsions and suspensions, homicides, increases, poverty, violence, drug abuse, as well as income, health, and educational disparities among black males. I have spent 20 years building a mentoring and dropout prevention program for at-risk boys in Miami-Dade County public schools. It is called the Five Thousand Role Models of Excellence Project. Boys are taught not only how to be productive members of society by emulating mentors who are role models in the community; they are also taught how to respond to racial profiling. It is a sad reality that we have to teach boys these things just to survive in their own communities, but we do. We need to have a national conversation about racial profiling now, not later. The time is now to stand up and address these issues and fight injustice that exists throughout our Nation. Enough is enough. Thank you, Mr. Chairman. [The prepared statement of Representative Frederica Wilson appears as a submission for the record.] Chairman Durbin. Thank you, Congresswoman. Unless my colleagues have questions of this panel, I will allow them to return to their Senate and House duties, and thank you very, very much for being here today. Chairman Durbin. Now we will turn to our second panel of witnesses, and each of them will please take their place at the witness table. Before you take your seats, I will wait until everyone is in place and ask you to please stand and be sworn. Do you affirm the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Chief Davis. I do. Mr. Romero. I do. Mr. Gale. I do. Mr. Clegg. I do. Professor Harris. I do. Chairman Durbin. Thank you very much, and let the record reflect that the witnesses all answered in the affirmative. The first witness is Ronald Davis, chief of police for the city of East Palo Alto, California, since 2005; before that, 19 years with the Oakland Police Department, where he rose to the rank of captain. Chief Davis served on the Federal monitoring teams overseeing police reform consent decrees between the U.S. Department of Justice, Washington, DC, and Detroit. Among other publications, he has co-authored the Justice Department monograph, ``How to Correctly Collect and Analyze Racial Profiling Data: Your Reputation Depends on It.'' He has a bachelor's of science degree from Southern Illinois University in Carbondale. He testified at both the previous Senate hearings on racial profiling, and sorry it has been so long since we have resumed this conversation, but it is an honor to have you return a few years later to bring up to date. At this point, Chief Davis, the floor is yours for 5 minutes. STATEMENT OF RONALD L. DAVIS, CHIEF OF POLICE, CITY OF EAST PALO ALTO, CALIFORNIA Chief Davis. Thank you, Mr. Chairman. Good morning, Mr. Chairman and distinguished Subcommittee Members. I am Ronald Davis. I am currently the chief of police for the city of East Palo Alto, California. I am humbled to provide testimony at today's hearing. As was mentioned, I did have the honor of testifying at the last Senate hearings on racial profiling in 2001. When asked to come before this Committee today, the first thought that came to my mind was actually a question: What has changed since my testimony in 2001 when President Bush then stated, ``Racial profiling is wrong and we will end it in America''? My testimony today is based on three diverse perspectives: first, as a racial profiling and police reform expert; second, as a police executive with over 27 years' experience working in two of the greatest and most diverse communities in the Nation--Oakland and East Palo Alto; and, third, as a black man and a father of a teenage boy of color. First, from my perspective as an expert, I think it is fair to say that law enforcement has made progress, albeit limited, in addressing the issue of racial profiling and bias-based policing. Over the past 10 years, the Department of Justice Civil Rights Division, through its ``pattern and practice'' investigations, has worked with law enforcement agencies nationwide to provide guidance on racial profiling policies and promote industry best practices. Most recently, the COPS Office, in partnership with the National Network for Safe Communities, is working on issues of racial reconciliation in communities to further strengthen these relationships and reduce crime and violence in those communities. Today there are very few police agencies in the United States that do not have some type of policy prohibiting racial profiling and bias-based policing. This progress, however, is seriously undermined by two focal points. First, there exists no national, standardized definition for racial profiling that prohibits the use of race, national origin, and religion, except when describing a person. Consequently, many State and local policies define racial profiling as using race as the ``sole'' basis for a stop or any police action. Unfortunately, this policy is misleading in that it suggests using race as a factor for anything other than a description is justified, which it is not. Simply put, Mr. Chairman, race is a descriptor not a predictor. To use race when describing someone who just committed a crime is appropriate. However, when we deem a person to be suspicious or attach criminality to a person because of the color of their skin, the neighborhood they are walking in, or the clothing they are wearing, we are attempting to predict criminality. The problem with such predictions is that we are seldom right in our results and always wrong in our approach. The same holds true within the immigration context as well. Because a person ``looks'' Latino or Mexican does not mean that that person is undocumented, and it should not mean that they are stopped or asked for their ``papers.'' Yet, according to recent laws in Alabama and Arizona, the police are not just encouraged to make these types of discriminatory stops; they are actually expected to do so. Most police chiefs will agree that engaging in these activities actually makes our communities less safe. This is one reason why I joined the Major Cities Police Chiefs Association and 17 current and former chief law enforcement executives in filing a brief challenging the Arizona law. We need to pass the End Racial Profiling Act of 2011. This legislation puts forth a standard definition for racial profiling. It requires evidence-based training to curtail the practice and provides support in developing scientific-based data collection and analysis practices. We also need the U.S. Department of Justice to revise its Guidance Regarding the Use of Race by Federal Law Enforcement Agencies. This will close, as mentioned in previous testimonies, loopholes that could permit unlawful and ineffective profiling. It makes no sense to exclude religion and national origin from the prohibition on profiling or to treat terrorism or immigration enforcement differently from other law enforcement efforts. I also fear that without this legislation, we will continue business as usual and only respond to issues when they surface through high-profile tragedies such as the Oscar Grant case in Oakland and the Trayvon Martin case in Florida. The second factor that undermines our progress is the dire need for us to reform the entire criminal justice system. The last top-to-bottom review of our system was conducted in 1967 through the President's Commission on Law Enforcement and Administration of Justice. We must now examine the entire system through a new prism that protects against inequities such as racial profiling, disparate incarceration rates, and disparate sentencing laws. I strongly encourage the passage of the National Criminal Justice Commission Act of 2011. Mr. Chairman, from my perspective as a police executive with over 27 years of experience, I know firsthand just how ineffective racial profiling is. As an example, in East Palo Alto, my community, we are more than 95 percent people of color--60 percent Latino, approximately 30 percent African American, and a rapidly growing Asian and Pacific Islander community. In 2005, the city experienced, unfortunately, the second highest murder per capita rate in California and the fifth highest in the United States. In January 2006, with just 6 months serving as chief of police, East Palo Alto police officer Richard May was shot and killed in the line of duty by a parolee just 3 months out of prison. With this crime rate and this violence against a police officer, my community had two distinct choices: we could either declare war on parolees, we could engage in enforcement activities that would further the disparate incarceration rate of young men of color, or we could do something different. We chose to use problem-solving, we chose to strengthen our relationships, we chose not to engage in racial profiling. We started a parole reentry program, the first in California, in which we actually were contracted by the Department of Corrections to provide reentry services. Police officers now are part of treatment, and we provide cognitive life skills, we provide drug awareness and treatment programs, and together we were able to reduce the recidivism rate from over 60 percent to under 20 percent. After 5 years, the murder rate in 2011 was 47 percent lower than it was in 2005. Our incarceration rates have dropped, and I am very confident in saying that we have better police and community relations. I think for me and my community, we recognize that racial profiling, the focus on people of color, especially young men, is more likely to occur when law enforcement uses race to start guessing. I am here to really reinforce that is a very ineffective policing practice. It is sloppy. It is counting on guess work. I think the notion that we as a community or we as a Nation must use racial profiling to make ourselves secure or to sacrifice civil liberties is not only false, it reeks of hypocrisy. If we were truly worried about national security in the sense of compromising civil liberties, then it would make sense that we would also ask--or those who are engaging in racial profiling would also ask for the prohibition of firearms. We have lost over 100,000 Americans to gun violence since 9/11. That is more than we have lost in terrorism and the wars in Afghanistan and Iraq combined. Yet there is not this equal call for gun laws. And I am not suggesting that there should be. I am just offering the idea of compromising civil rights for national security does not work. What is equally troubling with the idea of using race, national origin, or religion in the national security context is that it suggests the most powerful Nation in the world, a Nation that is equipped with law enforcement and national security experts that are second to none, must rely on bias and guess work to make ourselves secure versus human intelligence, technology, experience, and the cooperation of the American people. I want to strongly emphasize this point, Senator: There is no reason to profile on the basis of race, religion, national origin, or ethnicity. Last, and importantly, my last perspective is as a black man in America. I am still subject to increased scrutiny from the community, from my own profession, and from my country because of the color of my skin. As I mentioned earlier, I am a father of three, but I have a 14-year-old boy named Glenn, and even though I am a police chief with over 27 years' experience, I know that when I teach my son Glenn how to drive, I must also teach him what to do when stopped by the police--a mandatory course, by the way, for young men of color in this country. As I end my testimony today, I want to thank you, Mr. Chairman, and the rest of the Senators, for your leadership. And as much as I am honored to be here today, and as much as I was honored to be here 10 years ago or 12 years ago, I truly hope that there is no need for me to come back in another 10 years. Thank you. [The prepared statement of Chief Ronald L. Davis appears as a submission for the record.] Chairman Durbin. Thank you, Chief Davis. Since September 7, 2001, Anthony Romero has been executive director of the American Civil Liberties Union, the Nation's oldest and largest civil liberties organization, with more than 500,000 members. He is the first Latino and openly gay man to serve in that position. He co-authored, ``In Defense of Our America: The Fight for Civil Liberties in the Age of Terror.'' He graduated from Stanford University Law School and Princeton University's Woodrow Wilson School of Policy and International Affairs. Mr. Romero, please proceed. STATEMENT OF ANTHONY ROMERO, EXECUTIVE DIRECTOR, AMERICAN CIVIL LIBERTIES UNION, NEW YORK, NEW YORK Mr. Romero. Good morning, Senator Durbin and Ranking Member Graham. Thank you for having me this morning. Senator Franken, Senator Blumenthal. I am delighted to testify before you today. I am the national director of the American Civil Liberties Union. We are a nonpartisan organization with over half a million members, hundreds of thousands of additional activists and supporters, and 53 State offices nationwide dedicated to the principles of equality and justice set forth in the U.S. Constitution and in our laws protecting individual rights. For decades, the ACLU has been at the forefront of the fight against all forms of racial profiling. Racial profiling is policing based on crass stereotypes instead of facts, evidence, and good police work. Racial profiling fuels fear and mistrust between law enforcement and the very communities that they are supposed to protect. Racial profiling is not only ineffective, it is also unconstitutional and violates basic norms of human rights both at home and abroad. My written testimony lays out how race, religion, and national origin are used as proxies for suspicion in three key areas of national security, of routine law enforcement, and immigration. In the context of national security, recently released FBI documents demonstrate how the FBI targets innocent Americans based on race, ethnicity, religion, national origin, and First Amendment-protected political activities. Such counterproductive FBI practices waste law enforcement resources, damage essential relationships with those communities, and encourage racial profiling at the State and local level. In my native New York, the New York Police Department has targeted Muslim New Yorkers for intrusive surveillance without any suspicion of criminal activity. According to a series of Associated Press articles, the New York Police Department dispatched undercover police officers into Muslim communities to monitor daily life in bookstores, cafes, night clubs, and even infiltrated Muslim student organizations in colleges and universities, such as Columbia and Yale universities. When we tolerate this type of racial profiling in the guise of promoting national security, we jeopardize public safety and undermine the basic ideals set forth in our Constitution. In the context of routine law enforcement, policing based on stereotypes remains an entrenched practice in routine law enforcement across the country. The tragic story of Trayvon Martin has garnered national attention and raised important questions about the role of race in the criminal justice system. And while we yet do not know how this heart-breaking story will end, we do know that stereotypes played a role in this tragedy, and yet they have no place in law enforcement. Racial profiling undermines the trust and mutual respect between police and the communities they are there to protect, which is critical to keeping communities safe. Additionally, profiling deepens racial divisions in America and conveys a larger message that some citizens do not deserve equal protection under the law. In the context of immigration, racial profiling is exploding. State intrusion into Federal immigration authority has created a legal regimen in which people are stopped based on their race and ethnicity for inquiry into their immigration status. The Department of Justice needs to continue to expand its response to these State laws using robust civil rights protections. Additionally, Congress must defund the Department of Homeland Security 287(g) and Secure Communities programs which promote racial profiling by turning State and local law enforcement officials into immigration agents. When police officers not trained in immigration law are asked to enforce the Nation's immigration laws, they routinely resort to racial stereotypes about who looks or sounds foreign. But you cannot tell by looking or listening to someone about whether or not they are in the U.S. lawfully. In order to achieve comprehensive reform, Congress needs to provide law enforcement with the tools needed to engage in effective policing. We need to pass the End Racial Profiling Act, which would prohibit racial profiling once and for all. And we should urge the administration to strengthen the Department of Justice guidance using the use of race by Federal law enforcement agencies to address profiling by religion and national origin and to close loopholes for the border and national security. In America in 2012 and beyond, policing based on stereotypes must not be a part of our national landscape. Law enforcement officers must base their decisions on facts and evidence; otherwise, Americans' rights and liberties are unnecessarily discarded and individuals are left to deal with the lifelong circumstances of such intrusion. On behalf of the ACLU, I wish to thank each of you for your leadership on this critical issue. I also would like to thank you, Chairman Durbin, in particular for your willingness to partner with our Illinois office to address the issue of profiling. I look forward to working with you in the years ahead. [The prepared statement of Anthony Romero appears as a submission for the record.] Chairman Durbin. Thanks, Mr. Romero. Frank Gale is the national second vice president and Colorado State president of the Fraternal Order of Police. He served for 23 years in the Denver County Sheriff's Department where he had responsibility for the courts and jails. Captain Gale is currently the commander of the Training Academy and the Community Relations Unit and the public information officer. He has received numerous awards and decorations from the Fraternal Order of Police and the Denver Sheriff's Department. Captain Gale, it is an honor to have you here today, and please proceed. STATEMENT OF FRANK GALE, NATIONAL SECOND VICE PRESIDENT, GRAND LODGE, FRATERNAL ORDER OF POLICE, DENVER, COLORADO Mr. Gale. Thank you. Good morning, Mr. Chairman and distinguished Members of the Senate Subcommittee on the Constitution, Civil Rights and Human Rights. My name is Frank Gale. I am a 23-year veteran of the Denver County Sheriff's Department and currently hold the rank of captain. I am the national second vice president of the Fraternal Order of Police, which is the largest law enforcement labor organization in the country, representing more than 330,000 rank-and-file law enforcement officers in every region of the country. I am here this morning to discuss our strong opposition to S. 1670, the End Racial Profiling Act. I want to begin by saying that it is clear that racism is morally and ethically wrong, and in law enforcement is not only wrong but serves no valid purpose. It is wrong to think a person a criminal because of the color of their skin, but it is equally wrong to think that a person is a racist because they wear a uniform and a badge. This bill provides a solution to a problem that does not exist unless one believes that the problem to be solved is that our Nation's law enforcement officers are patently racist and that their universal training is based in practicing racism. This notion makes no sense, especially to anyone who truly understands the challenges we face protecting the communities we serve. Criminals comes in all shapes, colors, and sizes, and to be effective as a law enforcement officer, it is necessary to be colorblind as you make determinations about criminal conduct or suspicious activity. There is the mistaken perception on the part of some that the ugliness of racism is part of the culture of law enforcement. I am here today not only to challenge this perception, but to refute it entirely. We can and must restore the bonds of trust between law enforcement and the minority community. To do so would require substantial effort to find real solutions. Restoring this trust is critically important because minority citizens often suffer more as victims of crime, especially violent crime. I do not believe that S. 1670 will help to repair the bonds of trust and mutual respect between law enforcement and minority communities. In fact, I believe it will make it more difficult because it lends the appearance that all cops are racist and that we are engaged in a tactic which has no other purpose than to violate the rights of citizens. That notion or belief is inhibitive of building trust and respect and can result in a base belief by the community that law enforcement officers should not be trusted or respected. This bill proposes to prohibit racial profiling, which it defines very broadly and is not a legitimate police practice employed by any law enforcement agency in the United States that I know of. In Whren v. United States, the Supreme Court made it very clear that the Constitution prohibits selective enforcement of the law based on considerations such as race. Further, as one court of appeals has explained, citizens are entitled to equal protection of the laws at all times. If law enforcement adopts a policy, employs a practice, or in a given situation takes steps to initiate an investigation of a citizen based solely upon the citizen's race without more, then a violation of the Equal Protection Clause has occurred. The United States Constitution itself prohibits racial profiling, and yet here we have a bill that proposes to prohibit it. The very premise of the bill seems at odds with common sense in current law. The bill does not prohibit racial profiling, as the definition of racial profiling in the bill is far too broad. And, thus, it ends up prohibiting officers from the exercise of legitimate routine investigatory action aimed at determining involvement in a crime or criminal activity. The bill purports to allow exceptions to these prohibitions when there is a race description provided by a trustworthy eyewitness or other evidence of a specific suspect's race or ethnicity, but in real life this is not practical. In the practice of routine investigatory action, law enforcement officers receive and develop information through a wide range of activities and methods that are designed to identify suspects, prevent crime, or lead to an arrest. This bill would ban many of these types of method; therefore, a whole range of legitimate law enforcement methods would be prohibited beyond the already unconstitutional, purely race- based activities. The legislation also threatens to penalize local and State law enforcement agencies by withholding Federal law enforcement funding unless these agencies comply with the requirements of the bill to provide all officers training on racial profiling issues, collect racial and other sociological data in accordance with Federal regulation, and establish an administrative complaint procedure or independent audit program to ensure an appropriate response to allegations of racial profiling. The FOP has testified before you about the dire and dangerous consequences of budget cutbacks for law enforcement in the past. How can we fight the battle if we also propose to deny these funds to agencies that need them because they cannot afford new training or new personnel to document allegations of racial profiling issues? How can we achieve a colorblind society if the policies of the Federal law require the detailed recording of race when it comes to something as common as a traffic stop? And what if the officer is unable to determine the driver's race? Will police officers now be required to ask for ``driver's license, registration, and proof of ethnicity, please''? At a time when many citizens and lawmakers are concerned with protecting their personal information, be it concerns about the REAL ID Act, voter identification laws, or cyber crime, it seems at variance with common sense and sound public policy to ask yet another representative of the Government--in this case, a law enforcement officer--to collect racial or other personal data and turn that data over to the Federal Government for analysis. Why would something as simple and routine as a traffic stop require such an extraordinary imposition on a driver? I submit to this Subcommittee that we do have a problem in our Nation today: the lack of trust and respect for our police officers. Police officers have a problem in that they have lost the trust and respect and cooperation of the minority community. This is tragic because, as we have already discussed, it is minorities in our country that are most hurt by crime and violence. This bill, however, is not the solution. It will make matters worse, not better. For these reasons, the Fraternal Order of Police strongly opposes the bill, and I urge this Subcommittee to reject it. Mr. Chairman, I want to thank you for the opportunity to appear before the Subcommittee. [The prepared statement of Frank Gale appears as a submission for the record.] Chairman Durbin. Thank you very much, Office Gale, for being here. Roger Clegg is the next witness, president and general counsel of the Center for Equal Opportunity. He has held a number of senior positions in the Justice Department during the Reagan and George H.W. Bush administrations, including Deputy Assistant Attorney General in the Civil Rights Division and Deputy Assistant Attorney General in the Environment and Natural Resources Division, Acting Assistant Attorney General in the Office of Legal Policy. He is a graduate of Yale University Law School. Thank you for being here, Mr. Clegg, and please proceed. If you would turn your microphone on, it is in that box in front of you there. STATEMENT OF ROGER CLEGG, PRESIDENT AND GENERAL COUNSEL, CENTER FOR EQUAL OPPORTUNITY, FALLS CHURCH, VIRGINIA Mr. Clegg. Thank you very much, Senator Durbin, for inviting me here today. I am delighted to be here. Let me just summarize briefly my written statement. The first point I make is that care has to be taken in defining the term ``racial profiling.'' And, in particular, I think that it is important to bear in mind that racial profiling is disparate treatment on the basis of race. Good police activities that happen to have a disparate impact on the basis of race are not racial profiling. The second point I make is that the amount of racial profiling that occurs is frequently exaggerated and that care needs to be taken in analyzing the data in this area. All that said, racial profiling, as I define it, is a bad policy, and I oppose it for the reasons that many of my co- panelists here are giving. There is one possible exception that I would make, and that is in the antiterrorism context. In brief, I think that it is quite plausible to me that in the war on terror, where we are fighting an enemy that has a particular geopolitical and perverted religious agenda, it may make sense in some circumstances to look at organizations that have particular religious and geopolitical ties. I am not happy about doing that. I think it should be done as little as possible. But the stakes are so high that I am not willing to rule it out altogether. The last point I would make is that there are problems with trying to legislate in this area in general, and I think that the End Racial Profiling Act in particular is very problematic. I do not think that this is an easy area for Congress to legislate a one-size-fits-all policy that is going to apply to all law enforcement agencies at all levels of Government at all times in all kinds of investigations. And I think it is also a bad idea to encourage heavy judicial involvement in this area. And these are things that the End Racial Profiling Act does. Let me also say that I think that Chief Gale does a very good job of identifying some additional costs in the End Racial Profiling Act: The fact that it is insulting, that data collection is time-consuming, and that inevitably we are going to either have to guess inaccurately about people's racial and ethnic background or else train the police on how to identify people racially, which is a pretty creepy enterprise. With respect to my other panelists' testimony, I will just say briefly that in the terrorism and border security context, as I read some of this testimony, they would equate racial profiling with taking a particular look at visitors from particular countries, at considering immigration and citizenship status, and at considering language. I do not consider any of those things to be racial profiling. Let me make one last point. I think that this is an important point to make whenever we are talking about racial disparities. As I said, Mr. Chairman, I am opposed to profiling, particularly to profiling in the traditional law enforcement context where frequently it is African Americans who are the victims of that profiling. I am against that. Nonetheless, I think we have to recognize that it is going to be tempting for the police and individuals to profile so long as a disproportionate amount of street crime is committed by African Americans. And there will be a disproportionate amount of street crime committed by African Americans for so long as more than seven out of ten African Americans are being born out of wedlock. I know that this is not a popular thing to say, but I think whenever we are discussing racial disparities in the United States, that is the elephant in the room, and it has to be addressed. So, ultimately, people like me and everyone else, I think, in this audience who do not like racial profiling are going to have to face up to this problem. Thank you. Chairman Durbin. I would ask those in attendance here to please maintain order. Mr. Clegg. Thank you, Mr. Chairman, and I think I am at the end of my 5 minutes, anyway. [The prepared statement of Roger Clegg appears as a submission for the record.] Chairman Durbin. Thank you, Mr. Clegg. David Harris is a distinguished faculty scholar and associate dean for research at the University of Pittsburgh Law School. He is one of the Nation's leading scholars on racial profiling and author of the book in 2000, ``Profiles in Injustice: Why Racial Profiling Cannot Work,'' and in 2005, ``Good Cops: The Case for Preventive Policing.'' Like Congressman Conyers and Chief Davis, Professor Harris appeared at both of the previous Senate hearings on racial profiling, so welcome back. STATEMENT OF DAVID A. HARRIS, PROFESSOR OF LAW AND ASSOCIATE DEAN FOR RESEARCH, UNIVERSITY OF PITTSBURGH SCHOOL OF LAW, PITTSBURGH, PENNSYLVANIA Professor Harris. Thank you very much, Senator Durbin, Members of the Subcommittee. I am grateful for the chance to talk to you today. Senator Durbin's statement opened by recalling for us President Bush's promise that racial profiling ``is wrong and we will end it in America.'' Sad to say that that promise remains as yet unfulfilled. Instead, we have a continuation of profiling as it existed then with a new overlapping second wave of profiling in the wake of September 11th, as other witnesses have described, directed mostly at Arab Americans and Muslims. And now we have a third overlapping wave of profiling, this one against undocumented immigrants. But the context and the mission of whatever these law enforcement actions are does not change the fundamentals. The fundamentals are these: Racial profiling does not work to create greater safety or security. Instead, racial profiling, ethnic profiling, and religious profiling all make our police and security personnel less effective and less accurate in doing their very difficult jobs. I would define racial profiling as the use of racial, ethnic, religious, national origin, or other physical characteristics of appearance as one factor, not the sole factor but one factor, among others, used to decide who to stop, question, frisk, search, or take other routine law enforcement actions. This is very close, if you look at it, to the definition in the profiling guidance of the Justice Department, and I would note that it does not include actions based upon description--description of a known suspect, a person who has been seen by a witness. That is not profiling. That is good police work. All of profiling falls on the same set of data--data from across the country, different law enforcement agencies, different missions--and it is all about hit rates. When we talk about effectiveness, what we are asking is: What is the rate at which police officers and security officers succeed or hit when they use race, ethnic appearance, religious appearance, as opposed to when they do not? And the evidence, the data on this question is unequivocal. It comes from all over the country. When police use race or ethnic appearance or religious appearance this way, they do not become more accurate. In fact, they do not even just stay as accurate. They become less accurate than police officers and security agents who do not use these practices. In other words, racial profiling gets us fewer bad guys. Why is this? Because a lot of people find this counterintuitive. There are two big reasons. Number one, profiling is the opposite of what we need to do in order to address as yet unknown crimes by as yet unknown suspects. That is addressed most effectively through observation, careful observation of behavior. And when you introduce race even as just one factor into the mix, what happens is the observation of behavior becomes less accurate, measurably so, and police officers' efforts are damaged and wasted. Second is that using profiling affects our ability to gather crucial intelligence and information from communities on the ground, and this is true whatever the context is in which profiling is used. Particularly in the national security context, this is absolutely critical. If we are in danger, if there is a threat from international terrorists, and if, as some say, those international terrorists may be hiding in communities of Arab Americans and Muslims, the people we need right now as our partners, like we have never needed other partners, are people in those Arab American and Muslim communities. And I want to say that those communities have been strong, effective, continuously helpful partners to law enforcement in case after case across the country. These communities have helped. But if we put the target of profiling on these whole communities, we will damage our ability to collect intelligence from them because fear will replace trust. In response to some of the comments made by my fellow panelists, a bill like S. 1670, which deserves support, is not insulting to law enforcement. It is all about accountability, and everybody who is in law enforcement or any other pursuit needs accountability, just like I do as a professor, just like everybody else does. Racial identification is not an issue. You will not have police officers asking people what their race or ethnic group is. In fact, that is not what we would want at all because it is all about the perception of the officer. That is all that would have to be recorded. And black street crime, respectfully I have to disagree, is not the issue. The issue is how we deploy our law enforcement officers in ways that are effective, fair, and carry out the most important ideals of our society. So for those reasons, I would support any efforts to pass S. 1670, the End Racial Profiling Act, and to revise the Department of Justice's profiling guidance. I thank you very much for the opportunity to talk to you, and I look forward to the Committee's questions. Thank you. [The prepared statement of Prof. David A. Harris appears as a submission for the record.] Chairman Durbin. Thank you very much, Professor Harris. Chief Davis, you have spent your lifetime in law enforcement, and you have heard the testimony of Officer Gale that suggested in very strong and pointed language that raising this question of racial profiling really, he says, unless you believe police are racist, he suggests this is unnecessary. So what is your answer to that? As I said at the outset, you trust, we trust, these men in uniform--women as well--who risk their lives every day for us. And the question he has raised is if we cannot trust their judgment and assume that they are going to violate the Constitution and the law, then we are suspicious of them when we should be more trusting. Chief Davis. Thank you, Mr. Chairman, for the question. I completely disagree with my colleague. The idea that a police officer or a police department should not be held accountable is counter to the idea of democracy. If any group should be held accountable, it must be the police. We have awesome powers and responsibility, the power to take a life and the power to take freedom. The idea that we could not collect data to ensure that that power is used judiciously and prudently would be counter to sound managerial principles. We collect data every day. We collect data on crime. We collect data for budget purposes. We collect data for our very justification and existence. We use it to tell you that you need to increase budgets to the State. We use crime to justify why we deploy resources. The idea of using data means that you are using intelligence, and intelligence-led policing prevents the need to do guess work or bias-based policing. And so while I do appreciate the notion that we should respect law enforcement, as a law enforcement officer I think there is no more noble profession. But the idea that I am exempt from the Constitution or exempt from accountability is counter to why I got into the job. And I do not think it is insulting. I think what is insulting is to allow police officers to come under the perception, under the threats of accusations of racial profiling and not be in a position to counter it, not be in a position to make sure that your own policies and practices do not make them unintentionally engage in this practice. Laws are designed to set standards, to hold us accountable, and to really send a clear message. And I think that is what we're doing. Chairman Durbin. Before I turn to Officer Gale, I would like to also note that this celebrated case, notorious case involving Trayvon Martin involved a person being accused who was not a law enforcement official per se. He was an individual citizen as part of a Neighborhood Watch. Forty-nine States now, my own State being the only exception, have a concealed-carry law which allows individuals under some circumstances to legally carry a firearm. In this case, I do not know if Mr. Zimmerman complied with Florida law. That will come out, I am sure, in terms of what it took to have a concealed weapon. But it certainly raises a question that was not before us as much 10 years ago. We are not just talking about professionalizing law enforcement and holding them accountable. We are talking about a new group of Americans who are being empowered to carry deadly weapons and to make decisions on the spot about the protection of their homes and communities, which I think makes this a far more complex challenge than it was 10 years ago. I would like your response. Chief Davis. Yes, sir, I agree. The issue for California, we have the issue of open-carry, the carrying of loaded firearms, with very minimal requirements. So I think the idea that people should be held accountable, including our community, is very real. The issue of racial profiling, why it is also important, why we need the data, is in many cases--and maybe the Trayvon Martin case may bring this out later--gets into also what role law enforcement plays with its own community's bias. And so when people call the police and say, ``There is a suspicious person walking in my neighborhood,'' what makes that person suspicious? And the police must ask those questions. And the idea that we simply respond and stop without inquiring why the person is suspicious--is it their behavior? Is it the fact that they were basically engaged in criminal activity? Or is it because they are wearing a hoodie and because they are black? And at some point, the law enforcement must stand firm. Now, this is where we need the justification with the law to stand firm and even tell community members, ``No, I am not going to stop this person because he or she has done nothing.'' So we do have to look at the idea that law enforcement not enforces the law, they also set in many ways the moral authority of its community on how to interact with each other. Chairman Durbin. Officer Gale, your statement was very strong, but the conclusion of it raised a question. And I do not have it in front of me, but as I recall--and tell me if I am stating this correctly--you said that many members of the law enforcement community were not trusted in the minority communities. Can you explain that? Mr. Gale. Well, I think it is---- Chairman Durbin. You need to turn the microphone on, please. Mr. Gale. I apologize. I think it is pretty clear from what we have seen in media reports, especially recently. But, you know, over the course of several years, there is work to be done by law enforcement in the minority community to rebuild trust. And I say that openly. I think the FOP acknowledges that and, in fact, we are engaged in activities in which we are attempting to help law enforcement officers and agencies do just that through community work. So I think that is an important piece. I think the professor talked about the fact that a lot of times in minority communities you have people in those communities that are a valuable resource to law enforcement. I agree with that, and the aspect of law enforcement and the professional law enforcement, it is necessary to have people in communities where crime is occurring assist you with the enforcement activities. And so I think the problem has become that we seem to want to blame the enforcers for everything that goes wrong. And the problem with that is that the enforcers show up on the scene to deal with a situation with the information that they have available to them at the time. And our job, when we show up, is to stabilize the situation. Chairman Durbin. But you do not quarrel with--I hope you do not quarrel with Chief Davis' premise that the law enforcement community has extraordinary power in the moment--the power to arrest, the power to detain, the power to embarrass. And holding them accountable to use that power in a responsible, legal, constitutional way, you do not quarrel with that premise, do you? Mr. Gale. I do not think the FOP quarrels with the fact that law enforcement officers have that power, nor do we quarrel with the fact that law enforcement officers should be held accountable. In fact, we are accountable. I think my testimony illustrated situations where the court had ruled that officers had to be accountable in issues of race, and we accept that and embrace it because we believe it is proper, we believe it is appropriate. Chairman Durbin. Mr. Clegg, you said a number of things which caught my attention, and you said that you thought the war on terror justified some measure of profiling. Mr. Clegg. Well---- Chairman Durbin. Let me come to a question, and then you can certainly explain your position. And I wrote notes as quickly as I could. ``We need to look at organizations with geopolitical and political ties,'' I think is something that you said in the course of that. You have heard testimony here from Congressman Ellison and others about what is happening to Muslim Americans across the board, and many of them are not affiliated with any specific organization. They are affiliated with a faith, and it appears that that has become a premise for surveillance and investigation. I worry, as an amateur student of history, how you could distinguish what you just from what happened to Japanese Americans in World War II, where 120,000 were rounded up with no suspicion of any danger to the United States and their property taken from them, detained and confined because they happened to be part of an ethnic group which had just attacked the United States--the Japanese, I should say, attacked the United States and, therefore, they were branded as possibly being a danger in the Second World War because of some connection they might have with a geopolitical or political group. How would you make that distinction? Or do you happen to think Japanese internment camps were justifiable? Mr. Clegg. No, I do not, and when I say that in some limited circumstances some consideration of individuals' or organizations' geography and religion can be justified in the war on terror, I am not saying that that means that any consideration under any circumstances of ethnic profiling and religious profiling is okay. All I am saying is that I am unwilling to say that it can never be used. And I give examples in my testimony. For instance, suppose that on 9/11 the FBI had gotten reliable information that an individual on one of the grounded airplanes, one of the grounded jetliners, had a backup plan and that he was going to fly a private plane filled with explosives into a skyscraper. Would---- Chairman Durbin. But there is a clear distinction. There is a clear distinction, and let us make it for the record: a predictor and a descriptor. Mr. Clegg. No, no, no---- Chairman Durbin. When you talk about the class of people guilty for 9/11 and say, ``Why wouldn't we go after that class of people in training to fly,'' and so forth and so on, that is a descriptor that law enforcement can use. But when you conclude that because they were all Muslim we should take a look at all Muslims in America---- Mr. Clegg. I did not say that. Chairman Durbin [continuing]. You have crossed the line. Mr. Clegg. Well, I did not say that. And I think that the line that you are drawing between predictor and descriptor is inevitably a gray one, and this is one reason why I think that legislation in this area is a bad idea. Isn't it predictive when the FBI in my hypothetical says, you know, the individual who is going to fly this plane into a skyscraper is not somebody identified--it has not already been done. We are trying to predict who it is going to be, and we are going to look at the passenger lists on the grounded airplanes, and we have only limited resources and limited time--we are working against the clock here--and we are going to start by looking at individuals with Arabic names. Now, that is racial profiling, according to your bill, but I think it would be eminently reasonable. Chairman Durbin. I certainly disagree, and that is why I am---- Mr. Clegg. You do not think that that would be reasonable? Chairman Durbin. No, I do not. I really think that when you start going that far afield, why do you stop with Arabic names? Why wouldn't you include all of Muslim religion then? I mean, that just strikes me as the very core of the reason we are gathering today, that if we are going to say to people across America, ``You have certain rights and freedoms because you live in America and we have certain values,'' it does create perhaps more of a challenge to law enforcement. A police state may be much more efficient in many respects. But it is not America. Mr. Clegg. Well, listen, in my testimony, I and my whole organization's whole focus is on the principle of ``E pluribus unum.'' I take that very seriously, Mr. Chairman. But what I am saying is that there are going to be some circumstances where I think it would be very unwise for Congress to say that law enforcement agencies cannot give some limited consideration to an individual's or an organization's geopolitical and religious background. Chairman Durbin. I would like to defer now to Senator Graham, who has patiently waited for his opportunity. Senator Graham. Thank you all. Well, I guess what we are trying to highlight is how complicated this issue is. Mr. Gale, do you think you have ever been racially profiled? Mr. Gale. Probably. Senator Graham. I cannot say I understand, because I do not. I have never been in that situation. But the fact that you are a law enforcement officer and you probably some time in your life have been viewed with suspicion by police makes your testimony pretty persuasive to me in the sense that you are now sitting in the role of a law enforcement official trying to protect a community. And the Zimmerman case is a private individual, not a law enforcement organization. And I just really--I think I understand the problem. I just do not know where the line between good law enforcement and racial profiling ends and begins, because let me tell you one thing about Congress. We will be the first one to jump on you when you are wrong. When you get a phone call that somebody looks suspicious in a neighborhood and you ask a bunch of questions, well, that does not seem to justify us going in, and that persons winds up killing somebody or robbing or raping somebody, we will be the first ones to blame you. So you are in an untenable situation. And when it comes to the war on terror, Mr. Clegg, I could not agree with you more. The reality of the fact is that I wish we had done more with Major Hasan and not less. There are some websites out there that I am glad we are monitoring. There are some groups within America that are saying some pretty radical things, and I hope we follow the leaders of these groups to find out what they are up to, because homegrown terrorism is on the rise. How do you fight it without fighting a religion? How do you fight homegrown terrorism without fighting people who are very loyal to America who belong to a particular faith? I do not know, but I know this: that if the law enforcement community in this country fails to find out about the Major Hasans, we are the first one to be on your case. Why didn't you follow this website? He said these things in these meetings, and why didn't the supervisor tell the wing commander you have got somebody who is really out of sorts here? And as a Air Force officer, when do you go to your wing commander and say this person said something that makes me feel uncomfortable and you do so at your own peril? So I just do not know what the answer is. I know what the problem is. And I think in the last decade we have made some progress, Chief Davis, and maybe having legislation that makes us focus on this problem more might make some sense, quite frankly. Maybe we would look at redefining it, but just collecting information to show exactly what happens day in and day out in America so we can act logically on it. I know you want to say something, Mr. Clegg, but when it comes to fighting the war on terror, the fact of the matter is that Great Britain and France are going through this very similar situation right now where they have groups within the country that are espousing some pretty radical ideas, and they just expelled someone, I think, from Great Britain just today or yesterday, an imam who was saying some pretty radical things. So I do not know when national security starts and individual liberties begin. What is your thought? Mr. Clegg. Well, I want to endorse what some of my co- panelists have said, that it is very important in the war on terror that we have the cooperation of the overwhelming majority of individual Americans, Arab Americans and Muslim Americans, who---- Senator Graham. Don't you think one of the great strengths of our country is that even though homegrown terrorism is on the rise, generally speaking American Muslims have assimilated in our society and our culture; thousands serve in the military; and that we are actually the example to the world of how you assimilate? Mr. Clegg. That is right, and I think that stereotyping is very dangerous in this area. You know, most Arab Americans are not Muslims, for instance. I believe they are Christian. You cannot just look at somebody's name and conclude things about them. And as my co-panelists said, it is very important to have the cooperation and the trust of Arab American communities. So I do not want to give the impression that I think that it should be open season on anyone on account of their ethnicity or their religion. I am simply saying---- Senator Graham. Do you agree that---- Mr. Clegg [continuing]. That there are going to be circumstances where---- Senator Graham. Well, what we should be looking for is actions by individuals within groups, statements made that send signals that this is not where, you know, practicing religion should be taking one, it is the activity on the Internet. Mr. Clegg. Well, as Professor Harris has said, it is---- Senator Graham. That is what you were talking about. That is what I want us to---- Mr. Clegg [continuing]. We are looking at---- Senator Graham [continuing]. And how we do that I think is very complicated because when you monitor these websites, maybe you capture some innocent conversation. So having judicial oversight I think is important. But I guess that is what I am looking for, is sort of objective indicators of, you know, this is getting out of bounds here. Professor Harris. Senator Graham, you are absolutely right. It is about behavior. That is the key to everything. And making statements, whether out loud or on the Internet, that is action, that is behavior. Senator Graham. And here is the problem we have. If you are an Air Force member and you have an American Muslim in the group and they say something that alarms you, you have to think, ``Well, if I say something, am I going to get myself in trouble?'' Mr. Romero. But, Senator, if I may interject--and it is nice to see you again, Senator. Thank you for yielding to me. I think part of the challenge we have in a country that is dedicated to free speech is how you draw that line well in a way that does not quell speech we want to protect. I know that perhaps my organization and you have different points of view on abortion, for instance, and yet I think you and I would completely coincide--from the moments I have shared with you, I know you and I would completely coincide that anyone who dares to blow up an abortion clinic is a criminal. Senator Graham. That is not speech. Mr. Romero. And yet then would you feel comfortable surveilling the antiabortion websites for individuals who perhaps would be willing to blow up an abortion clinic just because they may share the points of view of the radicals who would blow up a clinic? I know you would not feel comfortable, if I could put words in your mouth. Senator Graham. I know exactly what you are saying. Mr. Romero. And so the context is not that different in the context of speech that perhaps we find odious, perhaps we find difficult, but that is what America is about. Democracy is a great many things, but it should never be quiet. But we all agree that it is not the America we know and love, sir. Senator Graham. I guess here is maybe where legislation can help, and my time is up. You know, having thoughts the Government or expressing yourself in an aggressive way, you can be radically pro-choice, radically against abortion; you can feel the way you would like to feel; you can speak your mind. But there comes a point in time when the rest of us have to defend ourselves and our way of life. And what I hope we will do in this discussion is not ignore the threats that do exist. There is a lurking, looming threat against this country and against our way of life, and I hope we will not get so sensitive to this dilemma that we will basically unilaterally disarm ourselves. And when it comes to basically, you know, the immigration issue, if there was ever a reason to fix our immigration system, this hearing highlights it. You have got millions of people here who are undocumented, illegal, and I would just be greatly offended if I were a corporal coming back from Afghanistan who happened to have a Hispanic last name and got stopped because somebody thinks I am here illegally. I could be greatly offended, but the fact of the matter is that, you know, there is a downside of illegal immigration in terms of crime, and the way to solve that problem, it is clear to me, is comprehensive immigration reform. Thank you all. This has been a very good hearing, and we will see if we can work with Senator Cardin to find something maybe more bipartisan. Chief Davis. Mr. Chairman, could I just answer one question the Senator asked? You asked Captain Gale had he ever been profiled, and I will take a shot at that. Unequivocally yes. But I think it was telling not only have I been profiled, but as a law enforcement officer, I have profiled. And I think that is the part that we bring to the table, that in many cases it may be implicit bias, it may be no malice intended; but at the end of the day, the result is that you have a disparate effect on people of color that you need most to help address some of the issues that are at the table. So I think for us not to acknowledge that it exists, to acknowledge that implicit bias is a human behavior that no one is exempt from, for us to require that we are trained in it, that we hold ourselves accountable so that we do not have these disparate outcomes is really what we are talking about. And it is easy to focus on the small percentage. I agree with the opening statement. Only a small percentage of our profession I believe are racists. But if the issue was as simple as racism, it would be an easy problem to fix. This is a much bigger issue, and I think we have to tackle it at that level. Senator Graham. Well said. Chairman Durbin. Thank you, Senator Graham. And I am going to take an extraordinary risk here and put this Committee in the hands of Senator Franken. [Laughter.] Chairman Durbin. In all seriousness, we are in a roll call vote, and Senator Graham and I have to vote. Senator Franken, I am going to recognize you, and I will let you monitor your own time used and watch Senator Blumenthal proceed, and then I will return. Thank you. Senator Franken [presiding]. You may regret this. [Laughter.] Senator Franken. I have the gavel now. In that case, I will turn it over to Senator Blumenthal. Senator Blumenthal. If I may, I have a question, Chief, to followup on the remark that you made at the close of Senator Graham's questions. Under what circumstances have you profiled? And if you could talk a little bit more about what limiting principles you think should apply to profiling when it is used legitimately, if it can be used legitimately, in your view. Chief Davis. Yes, the example that stands out for me when I was a police officer in Oakland, and you would have an area that we would identify as high crime, and this area was actually--it was very accessible to the freeway, so we had customers from out of town coming in to buy narcotics, and quite often they were actually white, and so the presumption on my part and many others is that any white person in that neighborhood would then be buying narcotics. The problem with that assessment, one, it attaches criminality to the entire neighborhood so that the only way that neighborhood could be judged is based on the actions of a few, which means you are criminalizing everyone that lives there; and, two, that also suggests that the only reason why a white person would visit someone black is to buy drugs. So besides being ineffective, besides being insulting to the neighborhood, it was not very--it just did not work. So as we got better and moved on, we learned how to watch behaviors. So now someone leaning in a car, someone basically exchanging money, somebody yelling signals that a drug buy was about to take place or that the police officers are coming works a lot better, doing proper investigations. The circumstances in which I think profiling could work would be probably under the category of criminal profiling when you are looking at behavioral aspects of what a person is doing. In other words, people when they are selling drugs, they engage in certain behaviors, whether it is how they drive, whether it is furtive movements in a car, something that would be specific to their actions. I cannot think of any context in which race is appropriate other than when you are describing someone who has committed a crime. And, in fact, Senator, I would say that what race ends up doing is being a huge distractor. So now we have seen this time and time again. We did Operation Pipeline in California where we targeted so- called drug carriers, and we basically did not get what we were looking for because we were so buy looking for black or brown people driving on a freeway. And we were proven wrong time and time again, and then we lose the support of our community. Senator Blumenthal. And added to that problem is the difficulty often of using eyewitness testimony where somebody supposedly identifying a potential defendant in a lineup can be just plain wrong because of race being a factor. Would you agree to that? Chief Davis. Yes, and, in fact, there is much work in science now into looking at some of the dangers of basing convictions and even arrests merely on lineups because they can be inaccurate. And if I may, I guess one of the questions that came up earlier was also about officers guessing on race. And if I can say, it is really interesting because we are supposed to assess race. And so the idea--I do not think we are suggesting that race has no place. So if something comes out on a radio that you are looking for a black male, six-foot tall, 225 pounds, and very handsome that did a robbery, then it would make sense why you would stop me. I can understand that. [Laughter.] Senator Franken. Objection. [Laughter.] Chief Davis. But the officer has to make an assessment at the time, so there is a time and place to, just not when you are trying to predict criminal behavior. Senator Blumenthal. Mr. Gale, if I may ask you to comment on the general principle that race or other similar characteristics alone, if used for identifying or profiling individuals, can be either distracting or undermining to credibility, and really should be used in combination--if anything, in combination with other, if at all, characteristics, mainly conduct, behavior, and so forth, what would you think about that? Mr. Gale. Conduct is what drives it all. You know, I am the commander of the training academy in my department, and we are training officers all the time. One of the things we talk about is, you know, the stop-and-frisk Terry stop type of situations. It is all driven by conduct. If you are going to properly teach that, you teach that it is driven by the conduct of the person and you are determining that their conduct indicates that they are involved in criminal activity. Race has no place in that. I think the distraction is that now you would have criminals who are involved in criminal activity who will now use, you know, the racial profiling as a distraction as they complain of being arrested or stopped because of their criminal conduct. And I think there is a presumption by some, and wrongly so, I believe, that, you know, no criminals ever complain against police officers and that no criminals ever, you know, do not just acknowledge that they do crime. My experience in 23 years is that it is very rare to roll up on someone engaged in criminal conduct and have them say, ``Ah, you got me, copper. I am guilty.'' They do not do that. They look for any way they can to try to get out of that process. Conduct is what drives all of it. The distraction is now that if you pass a bill like this, you are going to now say here is something you can use in addition. I think the courts already addressed it. The courts have already told law enforcement agencies very clearly, ``You cannot use race as the basis for how you do this.'' So conduct is it. The bulk of my testimony is really that I think we are trying to fix something that does not need to be fixed because you are trying to fix it with a law as opposed to just saying, hey, there is a problem, and the problem is bad police work. Senator Blumenthal. And I am sympathetic as one who has been involved in law enforcement for actually more than 23 years, combining both Federal and State, as U.S. Attorney and then as Attorney General of my State in Connecticut, and I would be very loath to create what you have charitably called ``distractions,'' ``defenses,'' ``impediments'' to effective law enforcement. But I think that one of the roles of legislation is also to provide guidance, raise awareness, and perhaps provide direction to police or their departments who may not be as aware as you are or even other witnesses here. Mr. Romero. Mr. Romero. Yes, thank you, Senator Blumenthal. Officer Gale, I guess I must take some time to visit your fair city of Denver because it does not look like any of the major cities that I visited in my 11 years' tenure as director of the ACLU. And with all due respect, you will forgive me for having to point out that your very optimistic assertion that all is well is just not borne out by the data that we already have. Let me give you data that I know quite well in New York City, the country's large police department. From 2002 to 2011, there were more than 4.3 million street stops--4.3 million. Eighty-eight percent of those--that is nearly 3.8 million--were of innocent New Yorkers. That means they were neither arrested for a summons or--neither issued a summons or arrested. Now, let us break it down by race because, obviously, it is a much better place, if you are Puerto Rican like me and maybe live in Denver, but in New York it is not a very good place for people who are African American or Latino. In 2011, a record 685,000 New Yorkers were stopped by the New York City Police Department. Eighty-eight percent were totally innocent of any crime; 53 percent of those were black, 34 percent were Latino, 9 percent white. And a remarkable number of guns was found on 0.2 percent of all stops. Now, with all due respect, Officer Gale, I must demur when you say that this is all conduct-driven, because clearly these facts beg otherwise. The fact is that there is a problem, and I would assert that the reason why--and I think one point where we agree is that the Fraternal Order of Police nationwide lacked the trust from communities of color. I think you have said as much, that you have a PR problem, if you will, with communities of color. And I would assert that the reason why you might have that difficulty with the communities of color you are there to serve is because they know these facts. They may not know them the way I know them, but they experience it. And that is precisely why the End Racial Profiling Act is essential. The data we have already tells us there is a problem. Let us collect more data, and let us put in place some remedies. Your point about the Supreme Court and the Equal Protection Clause giving sufficient comfort to those who have been wronged by the police, that is just simply not true. The Supreme Court case, lamentably, in the case of Whren, which I can cite for you, basically allows police officers to make pretextual stops based on race, ethnicity, and national origin. It is the law of the land, according to our Supreme Court. At times our Supreme Court gets it wrong, which is why we exhort this Congress and this Senate to step in and to enact a law when we know that there is a problem that has yet not come to the attention of our Supreme Court. So with all, I thank you for---- Senator Blumenthal. Thank you. My time is up, but I want to thank all of the witnesses. This has been a very, very important and useful hearing, and we have some areas of disagreement which I think we need to explore further. But I want to thank particularly Mr. Gale and Chief Davis for your excellent work over the years in law enforcement, and I thank the Chairman and substituting Chairman for their tolerance and patience. Senator Franken. I think you actually call me ``Chairman.'' [Laughter.] Senator Franken. That is the protocol. Senator Blumenthal. You know, I think I need the advice--I have a right to remain silent. [Laughter.] Senator Franken. Unfortunately, I do have an appointment, so I am going to ask my questions, and then you will get the gavel. Then you will be the Chairman and get every due respect being called ``Chairman.'' Thank you, Senator Blumenthal. Everyone here has talked about the importance of cooperation between law enforcement officers and the communities they serve, and it seems that everyone agrees that racial profiling can undermine trust in the authorities and can cause resentments among the targeted groups. Minnesota is home to a large population of Somali Americans. In my experience, no community was more upset than the Somali community when we learned that a few Somali Americans had gone back to Somalia and become involved with Al-Shabaab. When I talked to both FBI Director Mueller and, maybe more importantly, when I went back to the Twin Cities and talked to the special agent in charge there, both said that the Somali community had been cooperative in FBI investigations, and I think it was because of actually very good police work and very good work by the FBI in making sure that they earned the trust of the Somali community there. My questions are to Chief Davis and to Officer Gale. Both of you have served as law enforcement officers. How do you earn the trust of the diverse communities that you serve, some of whom may be initially skeptical of the police? Chief Davis. Thank you, Senator. One stop at a time, 1 day at a time, one interaction at a time. I think when people--I think we have to, one, acknowledge the history that police have played, the role of law enforcement with regards to race in this country. I think we still have generations of people that remember desegregation. We have generations of people that are still here that remember when the police were the enforcement tool and the rule of law with regards to Jim Crow laws and Black Codes. And so we have to acknowledge that we may start off with this lack of trust and confidence. So it is one interaction at a time. I think the first thing law enforcement can do is acknowledgment, to take our heads out of the sand and acknowledge that we have this horrific history. We should acknowledge that we, whether intentionally or not, still are engaging in practices that have a very disparate result with regards to people of color, whether intended or not. We should put our defensiveness down and realize we are here to serve, not to be served. And we have to realize that we are only going to be successful if the community engages with us. And the more we engage in that, the safer we make them. And the safer we make our communities, the more they will then partner with us. With the evidence showing time and time again in each major city and community the stronger the relationship between the police and minority communities, the greater the crime reduction is going to be. So we do it one interaction at a time, and we do it by holding officers accountable, but we also do it by acknowledging that which is in front of us. I think there is no greater insult as a minority than for someone to look me in my eyes and insult my intelligence by telling me that there is not profiling, when everything about me knows that it is. And I think that is what happens with our communities, and we need to stop doing that. Senator Franken. Officer Gale. Mr. Gale. I think I agree with the chief that you have to do it one person at a time, but I think you have to be more global. You have to look at the community you serve and the different populations in that community, and you have to make a concerted effort to be in those communities and having dialogue with those people, and you have to listen. And it does not matter that you might not agree with the things that they say. Years ago, I was in the military, and I went to a leadership school, and they had a manual that said, ``Any problem, whether real or perceived, is still a problem.'' And I agree with that, and I have held to that. It does not matter if it is not the actual problem. If it is perceived to be a problem by someone or by a group of someones, then we have to listen, we have to validate it, and we have to dialogue through it. And I think we have to take agencies and train agencies to understand who these populations are that they are serving and what the concerns of those agencies are. I agree also with Chief Davis that, you know, we have to acknowledge the history of law enforcement has not always been one of stellar conduct, and I think that that is being done in a lot of organizations. I think in the Fraternal Order of Police we talk about it very honestly and very candidly with our membership and say this is the way you need to go to improve your relations with the communities that you serve. And so it is important to do those things, to hear what they have to say, but it is also important to explain to them what the challenges are, what we have to do if we are going to protect people, you know, what we are faced with as the challenges when we are protecting communities. And it is important for us to illustrate that to individuals in the community because, you know, no one is perfect, but if we understand each other better and we dialogue more, I think when there are these honest misunderstandings, we can move past them. Senator Franken. Thank you. Mr. Romero, in your written testimony on behalf of the ACLU, you wrote about recently uncovered FBI training materials that rely on bigoted stereotypes of Muslims. I think we can all agree that those materials are not acceptable. FBI Director Mueller acknowledged that those materials damaged the FBI's relationship with Muslim communities, and I commend Chairman Durbin for his recent letter to the FBI on this subject, and I am working on a letter to express my concerns as well. Mr. Romero, what actions should the FBI take to show that it is serious about reforming its training programs? Mr. Romero. Thank you for the question, Senator Franken, and, yes, what I would first point out is, of course, those memos and files and training manuals surprised us. When we use the Freedom of Information Act, we go asking for documents that we do not know exist. And so we use the Freedom of Information Act as democracy's X-ray, how to get documents that we need, questions, hunches based on conduct of what we have seen already, when the FBI has been tracking young Muslim men between the ages of 18 and 33 asking them to come in for voluntary fingerprinting and photographing, mapping out mosques, we had a hunch that they had to have some training materials that were going to be troubling and problematic. And, lamentably, our hunches were borne out. I think, frankly, one thing that the FBI needs to do that I would encourage--and Director Mueller is a man with whom we have great disagreements. We have sued him dozens of times. [Laughter.] Mr. Romero. But, for the record, he is a man of enormous credibility. He is probably the man in the Justice Department both under the Bush and the Obama teams in whom I have the greatest personal regard and respect sine qua non. And with all that, I would encourage you to encourage him to take a much more active position on these threat assessments, which I fear are only the tip of the iceberg. The Attorney General guidelines allow now them to begin investigations on anyone they choose so long as they can claim they are doing it to gain information on criminal activities, national security, or foreign intelligence. And the amount of reporting on those threat assessments is rather limited, as we all know. Asking those tough questions, how many of these threat assessments have been opened, how many of them are going, they allow them to collect unlimited physical surveillance, we encourage the Attorney General to retire the use of these threat assessments. But at least at the very first step, you can ask the FBI to do more vigorous reporting to you, even if it is in camera. Retraining is essential because, remember, all the folks who got that lovely little chart showing how the Arab mind is a cluster mind, and I am quoting verbatim, ``is a clustered thinker, while the Western mind tends to be a linear thinker,'' they were trained on this. So until we retrain them and tell them that that is not the case, was never the case, they are going to continue to do those activities. And so I think retraining is essential, and probing into the assessments and how those assessments have been used, particularly in the Muslim context, I think would be a place of important focus. Senator Franken. Thank you, Mr. Romero. And thank you, Mr. Chairman. I noticed you are back, so I will--you already took the gavel, didn't you? [Laughter.] Senator Franken. Thank you all. Chairman Durbin [presiding]. Senator Coons. Senator Coons. Thank you, Chairman Durbin. Thank you for calling this hearing and for your long and passionate and vigilant advocacy for civil rights and for your real leadership in this area, for this legislation and for this hearing. In my own role prior to becoming a Senator as a county executive, I worked hard in supervision of about a 380-sworn- officer department to ensure that we had effective and strong outreach, not just to traditionally subject to harassment or questioning, communities like the African American or Latino communities, but also post-9/11 making sure there was better training and outreach and relationships with our Muslim community, given some incidents that occurred with our LGBT community, and just making sure that we stayed as a policing organization engaged and accountable. I just wanted to start, Officer Gale and Chief Davis, but thanking you for your leadership in the policing community and for your service to the public. I would appreciate your starting by just helping me understand what is the impact on a police force that practices racial profiling, where it is either part of policy or training, part of history, or part of current practice. What is the impact on professionalism, promotion advancement, and cooperation with communities? That has been touched on, but as you have noticed, because of votes a number of us have had to step in and out, and I would be interested in your response to that. Chief Davis. Thank you, Senator. I think it is multiple parts, if I may. Inside the organization, which we did not talk about, an agency that does engage in systemic racial profiling usually has very low morale because now you have officers inside the organization that are opposed to it, those that are engaging in it, and it causes a conflict within itself. Within a community I would also probably argue that the community is suffering because now you have a practice in which they are losing touch with their community, which makes them very ineffective, and, quite frankly, in today's society it makes them much more expensive because now you have the cost of crime going up, you have the cost of litigation because people are now seeking some type of redress through the court system, and you have low morale issues, which means you have increases in sick leave and workers' comp claims. So it is a very expensive venture when you engage in systemic racial profiling. And, most importantly, you have a community that is denied some of their basic rights. So as you know as a county executive, you cannot serve the community effectively if they do not trust you. So there is some historic trust. There is always going to be some challenges and strains. But to the extent that there is a legitimate outreach, to the extent which we are trying to-- and I agree with Captain Gale--listen and respond and respect, I think we have a better chance of being successful. So the issue of racial profiling, although we are talking about race, from a chief's perspective, from an executive's perspective, is poor managerial practice. It results in loss of revenues, support, causes internal strife. It just is not an effective strategy. Senator Coons. Thank you. Captain Gale, would you agree? Is this bad policing? Does it have consequences internally? Mr. Gale. Absolutely. I mean, the consequences of bad management in any agency result in these perceptions in the community that the police are not responsive and that they are victimizing citizens and that they are somehow or another a rogue force. That is where it all derives from. It all derives from the management philosophy of the organization. And the chief is right. It does result in low morale. But it also results in low morale not just because you are going to have people in the agency that would disagree with the practice or the fact that there is no appropriate accountability for officers who are clearly operating outside the code of professional conduct. It has low morale when the community that we serve then becomes, you know, complaining about us being unprofessional or about the reputation of the agency being, you know, that of a victimizer as opposed to a protector. And the chief is absolutely right. It starts with the management. It starts with the very top person and the top- level people allowing these things to occur in individuals that they won't hold accountable. As a captain in my agency, I believe it is my charge to hold people accountable when they conduct themselves unprofessionally, and I do so. You know, I think some people have said here that, well, you know, there seems to be some kind of great thing going on in Denver or what have you. I am just going to tell you--and I love my city, and it is a great city, and please feel free to visit anytime. [Laughter.] Mr. Gale. But I am just going to tell you, we hold people accountable in my agency. We hold them accountable, and that is expected. You know, we do not have to have specific rules that say you cannot do this, because we all know what bad behavior is when we see it. And if you challenge people and you hold them accountable, then there will not be a problem. But the end result is that officers will just shut down and not conduct any type of police work, and then the city does not get protected. Chief Davis. Senator, if I may add one point, there is a phrase we have, especially for chiefs, and it talks about a moment of pause. And what happens is when an agency does not have the type of trust and confidence that we are alluding to, that we are discussing, in many cases you have racial powder kegs that are sitting there. And if you look at our history, there has usually been some type of incident. And it gets confusing because quite often the incident may not be--it may be a legal incident. It may be something that really by itself would not make sense to call such a response. But it reflects years of abuse and neglect; it reflects the kind of--I think one of the Congresspersons said earlier, ``Enough is enough.'' And so when agencies are blind to this or systematically engaging in it, they are sitting on these powder kegs that an incident like a Trayvon Martin or an Oscar Grant in Oakland can ignite. And then that is when we see large demonstrations and you start having race riots, because it is not the incident by itself as much as it the buildup to that incident, the lack of acknowledgment of where we were before. Senator Coons. And, Chief, if I have heard all the members of the panel right who have said that racial profiling is bad policy, it is not just those powder keg moments; it is also the simmering distrust, the disconnect from the community you seek to protect and to serve that can also have a negative impact on your effectiveness, on your ability to effectively police. That is something we have heard across the whole panel. I wanted to move, if I could, Professor Harris, to a question about standards. If you look at the reasonable suspicion standard that controls the ability of law enforcement to stop and question an individual as opposed to probable cause, which covers the rest, profiling appears to me just at first blush to be a much larger problem potentially in the area of reasonable suspicion. How have you seen that play out? What do you think is important in fighting that standard? And then I am going to want to move to this bill and why it might be necessary. Professor? Professor Harris. Thank you for the question, Senator. You are absolutely right. You put your finger on something very important. The reasonable suspicion standard arises in Terry v. Ohio, the case that allows police officers to use stop-and- frisk when there is reasonable fact-based suspicion. The problem is and where this can intertwine with profiling is that reasonable suspicion is a very low legal standard. It is lower than probable cause. When I am in class, I like to say probable cause is somewhere near my waist, reasonable suspicion is below my knees. And you have a standard where you can use very little evidence to take significant police action, and where we see this showing up in the context of profiling, to give you one example, is in the stop-and-frisk activity in New York City over many years, and it is a good example because there is a very significant amount of data on this. We often find that even though the standard is reasonable suspicion, there is hardly anything recorded and sometimes nothing at all recorded reflecting reasonable suspicion or the idea is simply thought of as boilerplate. So with that low a standard, profiling and other ineffective approaches to law enforcement run rampant, and we have the kind of statistics that Mr. Romero cited just a minute ago. Senator Coons. Thank you. Mr. Romero, if I might, if racial profiling can be a violation of civil rights, as I believe it is under a whole line of cases--Martinez, Forte, Brignoni-Ponce, Montero, Camargo--these are not cases I am familiar with personally, but that is the line of analysis, I think, by the Supreme Court that has laid this out. Why do we not see more enforcement actions for racial profiling by the Department of Justice? And if you would just followup on Professor Harris' comment, how do we, in the gap between the formal policies, create police entities that, as Captain Gale describes it, are accountable, are professional, and where at all levels are engaged in moving us forward toward a more just and effective policing community? Mr. Romero. Thank you for the question, Senator Coons. When you look at the testimony we submitted, you will see that we detail a number of the seminal racial profiling cases, in fact, some of them brought by David Harris. What might be instructive for why this piece of legislation is essential is to track when the incident occurred and when the case was decided, because you will note that in many instances--and the one I am looking at now--you are looking at a span of several years of time between when you will get pulled over by a police officer on a highway in the case of Robert Wilkins and ultimately when that case was decided by a court. And for many minority group members, especially those in our communities and families who lack resources to hire private attorneys, it is not simple or economic to retain private counsel, even when you have been wronged. We turn away many, many cases and individuals who write to us every day simply because we lack the resources to take on every single case. We take on cases where we think we have an ability to have a high impact and change systemically at the highest levels. The number of heart-breaking letters I send back saying, ``I understand you were profiled by the police, but we have them under a consent decree and so we will throw your fact scenario into the consent decree,'' does not really give the individual who has often been aggrieved, even if they are willing to step forward, much comfort. I think that is really what is at stake here. I think the burden on hundreds of thousands of New Yorkers, let us say the 400,000-plus that I cited that have been wrongfully stopped by the police, the idea that you would ask 400,000 New Yorkers who were innocent and yet stopped by the police to file all individual lawsuits, I cannot believe that any Member of this chamber would believe that would be an efficient use of our resources. This is one of the times when by the Senate taking action and putting in place a legal regime and being able to stop the type of rush to the courthouse steps you do both the economy and our civil liberties a service. Chief Davis. Senator, if I may, the one area going to the question you had about the lawsuits or why people cannot file the complaint is in many cases I think the bigger challenge is that it may actually follow a legal stop. This is why the legislation is critical, why data collection is critical. I think when you think of profiling, people sometimes, unfortunately, think that the stop itself may not have legal cause. So we have a phrase in policing, ``Give me a car, 2 minutes, and a vehicle code, and I will find a reason to stop you.'' And so the stop may be justified--cracked windshield, bald tires--you know, you will see those low discretionary stops being used quite often to get to, as the Whren decision talked about, a pretext for other things. So where it makes it hard on an individual basis is a person is complaining about being stopped, but, in fact, they did have a cracked tail light, and it makes it hard for that individual case, which then what you do is track holistically to see that that is the 10,000th cracked windshield and 90 percent of them may be all of one group of color. Senator Coons. I see that I am well past my time, and I appreciate the concerns that have been raised by this conversation in this hearing today about the definition of racial profiling, about the importance of being narrowly targeted in a legislative response, but I am grateful, Chairman Durbin, for your crafting a bill that insists on training, on data collection, and on a narrowly crafted response to a significant problem. Thank you very much. Chairman Durbin. Thanks, Senator Coons. And following up on your question, I think one of the obstacles--and Mr. Romero probably can back this up--is that when you are dealing with the question of whether or not race or ethnicity or profiling was the sole cause for the stop, you run into a real obstacle. Our staff did a little research on this, and it turns out this is not the first time that Congress has talked about this. Arguing that discrimination should only be prohibited if it is based solely on race and ethnicity has an unfortunate congressional lineage. Segregation has attempted to gut the Civil Rights Act of 1964 by offering an amendment that would have limited the Act's reach to discrimination based solely on race. Senator Clifford Case of New Jersey argued in opposition. He said, ``This amendment would place upon persons attempting to prove a violation of this section, no matter how clear the violation was, an obstacle so great as to make the title completely worthless.'' And Senator Warren Magnuson of Washington said limiting the Civil Rights Act to discrimination based solely on race would ``negate the entire purpose of what we are trying to do.'' So the courts have set a standard which makes it extremely difficult, and, Chief Davis, your examples--and it might be a cracked tail light was the reason they are being pulled over. What we found in Illinois, incidentally, to go to my own State, consent searches by the Illinois State Police between 2004 and 2010, Hispanic motorists in my State were 2 to 4 times more likely to be searched, African American motorists 2 to 3 times more likely to be subject to consent searches than white motorists. However, white motorists were 89 percent more likely than Hispanic motorists and 26 percent more like than African American motorists to have contraband in their vehicles. So it made no sense from a law enforcement viewpoint to do this, and yet it is done. I thank you for this hearing, and I am sorry it took 10 years to get back together, and I am sorry that we need to get back together. But to put it in historic perspective, if you go back to our Nation's very beginning, our Founding Fathers started wrestling with issues of race and gender and religion, and this year's Presidential campaign wrestles with issues of race and gender and religion. It is an ongoing debate in this Nation. There have been moments of great leadership, and there have been moments of ignominious conduct. As far as accountability is concerned, yes, this would hold law enforcement accountable. But I hope we hold every person in our Government accountable, including Members of Congress. And let me concede I came to this job saying--remembering what Bill Clinton once said when he was being interviewed before he became President: ``Is there any issue you will not compromise on?'' He said, ``I will never compromise on race.'' He said that as a man who grew up in Arkansas and saw segregation. I thought, ``That is a good standard, Durbin. You saw it, too, in your hometown. Hold to that standard.'' And I look back and remember in my time in the House of Representatives voting for a measure that turned out to have a dramatically negative racial impact: the establishment of the crack cocaine standard in sentencing of 100:1. Years later, I was given an opportunity on this Committee to try to make that right and bring it back to 1:1. I could not get the job done. Because of the nature of compromise, it has been reduced to 18:1--still a terrible disparity, but a dramatic improvement. What happened as a result of that bad vote by black and white Congressmen? We lost trust in the African American community. Many people serving on juries said, ``I am not going to do this. I am just not going to send that woman, that person, away for 10 or 20 years because of a crack cocaine violation.'' We lost their trust, Office Gale, and I could see it when the judges came and talked to us about it. We have moved back to try to establish some trust in that community by doing the right thing, but we need to be held accountable, this Senator and all of us. Whether we are in elected or appointed office in our Government, we serve. We serve the public. And that accountability has to be part of that service. This is not going to resolve the issue. I think it is, as I mentioned earlier, more complicated today because of concealed- carry and some of the standards being established in States, more complicated today, as Mr. Clegg has said, because the war on terror raises legitimate concerns about the safety of our Nation and how far will we go to respect our national security without violating our basic values under the Constitution. I thank you all for your testimony. It has been a very positive part of this conversation, which we need to engage in even further. There is a lot of interest in today's hearings: 225 organizations submitted testimony. Thank goodness they did not come here to speak, but we are glad to have their testimony, and we will put it in the record, without objection. It will include the Episcopal Church, the Illinois Association Chiefs of Police, the Illinois Coalition for Immigrant and Refugee Rights, the Japanese American Citizens League, the Leadership Conference for Civil and Human Rights, Muslim Advocates, NAACP, National Council of La Raza, National Integration Forum, the Rights Working Group, the Sikh Coalition, the South Asian Americans Leading Together, and the Southern Poverty Law Center. These statements will be made of the record, which will be kept open for a week for additional statements. [The information appears as a submission for the record.] Chairman Durbin. It is possible someone will send you a written question. It does not happen very often, but if they do, I hope you will respond in a timely way. Without further comment, I thank all of my witnesses for their patience and for attending this hearing, and I look forward to working with all of you. [Whereupon, at 12:20 p.m., the Subcommittee was adjourned.] [Additional material submitted for the record follows.] A P P E N D I X Additional Material Submitted for the Record [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] [all]