Before the Senate Judiciary Committee

Hearing on

S.989, The End Racial Profiling Act of 2001

Thank you Mr. Chairman for allowing me to make some opening remarks and for convening this important hearing. Racial profiling is an issue that has generated widespread public concern. Fortunately, unlike many of the issues we confront here in Washington, there has emerged a consensus concerning the fundamental point of the debate: racial profiling, also known as biased-based policing, is wrong, it is unconstitutional, and it must not be practiced or tolerated. Mr. Chairman, you and I, the President, the Attorney General, indeed every member of the Congress, would agree that law enforcement activity must never be undertaken because of one’s race.

Many have strong and diverging views, however, concerning how best to address the problem at this time. And today, we will hear some of those views from our witnesses. Given this lack of consensus, political and community leaders must act prudently and responsibly in addressing this issue, for the stakes are quite high. Under no circumstance should we allow this to become a political issue mired in partisan politics. The policy decisions we make in this area could well have a profound effect on policing in America. And, as many of us know, the resulting costs to public safety are all too often felt in those communities that can least afford the carnage. Witness, for example, what has happened in Cincinnati, Ohio over the past few months as the police have retreated from minority neighborhoods in the face of accusations of racism: 59 shooting incidents in the city with 77 gunshot victims, compared with 9 shootings and 11 victims in the comparable three months last year. All but one of the victims has been African-American.
In my view, S.989, "The End Racial Profiling Act of 2001," though well-intentioned, is the wrong approach at this time. The provisions of the legislation suffer three flaws: they are unnecessarily controversial, they are unjustifiably punitive to state and local authorities, and above all, they are premature.

First, the legislation plunges into a hornet’s nest of controversy with, among other things, its definition of "racial profiling." As will become abundantly clear when our second panel begins testifying, there is no widely accepted definition of this term, and police organizations, community leaders, and academics disagree even among themselves about what is permissible police activity. Before stamping a label on certain police activity, we ought to at least identify the activity in question.

Compounding the problem concerning the definition of racial profiling, the legislation provides for lawsuits by persons who believe they have been profiled. To bring such a lawsuit, a plaintiff need only show "[p]roof that the routine investigatory activities of law enforcement agents in a jurisdiction have had a disparate impact on racial or ethnic minorities." Thus, mere evidence of a disparate impact is evidence of a violation of this act. Yet, there is no definition of disparate impact. Is 51% to 49% sufficiently disparate, or must it be something more substantial? Does it mean that any policy that happens to impact adversely must be eliminated? While the bill allows a plaintiff to sue only for declaratory or injunctive relief, not damages, entire police departments could be tied up in litigation even when there is no proof of intentional discrimination. Creating a litigation nightmare for law enforcement will unfairly drain community resources, divert manpower and further foster an 'Us vs. Them' mentality. Instead, we should focus on encouraging positive relationships between law enforcement and the communities they serve.

Finally, supporters of the legislation fail to justify the need for these types of measures. Indeed, just last year we were exploring ways to encourage the federal, state and local authorities to gather and study data to determine the prevalence of racial profiling. And yet, here we are today, a little more than one year later, considering legislation that in effect assumes that racial profiling has infected every police agency in this country. Out of fairness to our nation’s police officers, and out of concern for our citizens’ safety, we should be cautious about proceeding in this manner.

Let me suggest, then, that at this point in the debate, we focus on identifying the scope of the problem. Let us follow the lead of the Attorney General, who has committed the Department of Justice to gathering and analyzing data, and his civil rights chief, Ralph Boyd Jr., who has publicly pledged to examine that data, train and monitor local police, and bring lawsuits when appropriate.

For our part here in the Congress, let me also suggest that we return to the legislation that you, Mr. Chairman, cosponsored last Congress, the "Traffic Stops Statistics Study Act." That, in the view of many, including the American Bar Association, constitutes the appropriate point of departure in this debate. And as Professor Harris, one of today’s witnesses testified before this subcommittee last year, "[d]ata collection . . . is surely the first step on [the] long road" to addressing this issue.

That approach has the added virtue of having been endorsed by Attorney General Ashcroft. He has on several occasions indicated his strong support for the Traffic Stops Statistics Study Act, and he has informed us he is prepared to move forward in gathering and studying such data. You may recall that in February of this year, the Attorney General wrote me and urged the Judiciary Committee to promptly consider moving legislation along the lines of the statistics study act. I would hope that as we continue to debate the necessity of S.989, we at least move forward on legislation that will assist the Attorney General’s efforts.

Thus, Mr. Chairman, while I cannot support the legislation that is the subject of today’s hearing, I pledge to work with you to ensure that the Department of Justice obtains the data we need for a thorough, fair-minded examination of police practices in this country. In the meantime, let us be careful not to impugn the men and women who daily put their lives on the line for us. We must never forget that the vast majority of them serve their communities with distinction and honor.

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