Eleanor Finch
Racial profiling is a pervasive issue in the United States, with federal, state, and local law enforcement agencies disproportionately targeting minorities for security detention based on their race or ethnicity. This practice, driven by the belief that certain minority groups are more prone to criminal behaviour, has attracted significant congressional interest and sparked debates about its constitutionality. While the Fourth Amendment's protection against unreasonable searches and seizures and the Fourteenth Amendment's equal protection guarantee are often cited as violated by racial profiling, the complexity of these cases demands consideration of all relevant circumstances. The Supreme Court has provided guidance on this, including examining patterns of strikes against minority jurors and the questions and statements made by law enforcement officers. Despite these considerations, racial profiling persists, impacting communities of colour, immigrants, and various religious groups, and has been perpetuated by policies and practices that undermine the fundamental principles enshrined in the Constitution.
| Characteristics | Values |
|---|---|
| Definition | The practice of targeting individuals for police or security detention based on their race or ethnicity in the belief that certain minority groups are more likely to engage in unlawful behavior |
| Examples | Legal settlements and data collected by governmental agencies and private groups suggest minorities are disproportionately the subject of routine traffic stops and other security-related practices |
| Affected Communities | Arab, Middle Eastern, Muslim, South Asian, Asian American, Latinx, African American |
| Legislation | End Racial Profiling Act of 2011 (H.R. 3618/S. 1670) in the 112th Congress |
| Constitutional Ramifications | Unreasonable search and seizure under the Fourth Amendment; denial of the Fourteenth Amendment's equal protection guarantee |
| ACLU Initiatives | Litigation, public education, advocacy, lobbying for data collection and anti-profiling legislation, litigating on behalf of victims |
| Supreme Court Instructions | Consider "all relevant circumstances", including prosecutor's statements and questions, and police officer's pattern of traffic stops and arrests |
| Evidentiary Standards | Direct evidence of discriminatory intent or purpose is required, statistical evidence of disparate impact is insufficient |
| Case Law | Brown v. City of Oneonta, Marshall v. Columbia Lea Regional Hospital |
| Impact | Ineffective in fighting crime, waste of police resources, destruction of civil liberties, increase in hate crimes |
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What You'll Learn
The US Constitution prohibits racial profiling
Racial profiling is a pervasive issue in the United States, with communities of colour, including Black, Latino, Arab, Middle Eastern, Muslim, and South Asian Americans, being disproportionately targeted by law enforcement. This practice, driven by the belief that certain minority groups are more prone to criminal behaviour, has been deemed racial profiling and is in violation of the US Constitution, federal laws, and guidelines.
The US Constitution guarantees every person the fundamental right to equal protection under the law, regardless of race, ethnicity, religion, or national origin. This principle, rooted in the Declaration of Independence's assertion that "all men are created equal," serves as a cornerstone of American democracy. However, racial profiling directly contradicts this ideal, singling out individuals based on their race or ethnicity for heightened scrutiny and suspicion.
Instances of racial profiling have been documented in various spheres, including during traffic stops, immigration enforcement, and in airports. For example, data from New York City revealed that in 2009, despite comprising only 26% and 27% of the population, Blacks and Latinos accounted for a staggering 84% of stops, clearly illustrating the disproportionate targeting of minorities. Similarly, since 9/11, federal agencies have been criticised for targeting Arab, Middle Eastern, Muslim, and South Asian communities, as well as Chinese American scientists and academics, under the guise of national security.
The Supreme Court has acknowledged the critical need to consider "all relevant circumstances" in constitutional analyses of racial profiling cases. This includes examining patterns of behaviour, such as a prosecutor's history of striking Black jurors or a police officer's pattern of traffic stops targeting specific racial groups. While statistical evidence alone may not suffice to prove racial profiling, direct evidence of discriminatory intent or motive can be pivotal in legal challenges.
To uphold the constitutional guarantee of equal protection, legislative initiatives like the proposed End Racial Profiling Act of 2011 (H.R. 3618/S. 1670) have been introduced. Additionally, organisations like the American Civil Liberties Union (ACLU) actively advocate for anti-profiling legislation and litigate on behalf of victims of racial profiling. These efforts aim to hold law enforcement accountable, challenge discriminatory practices, and ensure that the US Constitution's prohibition of racial profiling is respected and enforced.
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Racial profiling violates equal protection under the law
Racial profiling goes against the principle of equality and the constitutional right to equal protection under the law. It is a discriminatory practice that undermines the basic tenets of a just society. The Declaration of Independence states that "all men are created equal", yet racial profiling by law enforcement contradicts this fundamental value.
Racial profiling involves the discriminatory targeting of individuals or groups based on their race, ethnicity, national origin, or religious beliefs. Since 9/11, Arab, Middle Eastern, Muslim, and South Asian communities have been subjected to discriminatory profiling by federal law enforcement, local police, and border officers. This has also been the case for Asian Americans, particularly Chinese American scientists and academics. Racial profiling is not limited to law enforcement but also occurs in other contexts, such as with airlines. The use of racial profiling by government agencies and local law enforcement has alienated communities, eroded trust in law enforcement, and fostered an environment of fear.
The practice of racial profiling is not only immoral but also ineffective and wasteful. By singling out certain racial or ethnic groups for increased scrutiny, law enforcement diverts resources from pursuing individuals who pose genuine threats to security. It results in little evidence of actual criminal activity and undermines civil liberties for all. Furthermore, racial profiling violates international standards against discrimination and contravenes the United States' human rights obligations under international conventions, such as the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).
The negative consequences of racial profiling extend beyond the direct impact on targeted individuals and communities. It has led to a rise in hate crimes against people of color and contributed to a climate of fear and distrust. This has been particularly evident in immigrant communities that have been targeted by raids from local law enforcement in cooperation with federal agencies. Anti-immigrant rhetoric and the resulting racial profiling have exacerbated tensions and further alienated these communities.
To address racial profiling and uphold equal protection under the law, legislative advocacy, public education, and anti-profiling legislation are necessary. Initiatives such as data collection, lobbying for anti-profiling laws, and litigation on behalf of victims of racial profiling are crucial steps towards ending this discriminatory practice and ensuring equal treatment for all under the law.
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The Fourth Amendment and unlawful search and seizure
The Fourth Amendment to the United States Constitution prohibits the federal government from conducting "unreasonable searches and seizures". This means that, in general, the police cannot search a person without a warrant or probable cause. The Fourth Amendment protects the full enjoyment of the rights of personal security, personal liberty, and private property.
A search occurs when a government agent, such as a police officer, intrudes into a space where someone has a reasonable expectation of privacy. A seizure refers to an arrest of a person or a seizure of property. For a search or seizure to be legal, it must be conducted with consent, a warrant, or probable cause to believe a crime has been committed. To obtain a search warrant, a law enforcement officer must request one from a judge, providing reliable information that shows probable cause.
Several courts have considered racial profiling by law enforcement to be a violation of the Fourth Amendment's prohibition against unreasonable search and seizure. Racial profiling is the practice of targeting individuals for police detention based on their race or ethnicity, with the belief that certain minority groups are more likely to engage in unlawful behaviour. Examples include minorities being disproportionately targeted for routine traffic stops. The Fourth Amendment's consideration of race has been further highlighted in the context of colourblind constitutionalism, where race is considered in seizure analysis. This has been observed in policing immigration crimes and the creation of criminal profiles, with officers allowed to consider the racial characteristics of a neighbourhood when determining reasonable suspicion to stop someone.
The Supreme Court's interpretation of the Fourth Amendment has evolved over time, with the Court grappling with the definition of "reasonable" searches and seizures. The Court's decisions have significant implications for racial profiling practices and the consideration of race in law enforcement activities.
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The Fourteenth Amendment and equal protection
The Fourteenth Amendment to the US Constitution, ratified in 1868 after the Civil War, contains the Equal Protection Clause, which was intended to stop states from discriminating against African Americans. The text of the clause is worded broadly, and it has evolved significantly from its original purpose. Despite its specific reference to "states", the clause has been interpreted to prevent discrimination by the federal government as well, as per the Fifth Amendment.
The Fourteenth Amendment guarantees equal protection under the law, and this has been central to debates about racial equality in the US. The Amendment was initially understood to preclude any state-imposed distinction based on race. However, in the case of Plessy v. Ferguson (1896), the Court ruled that "separate but equal" facilities for blacks and whites, in this case, train cars, did not violate the Equal Protection Clause. This ruling set a precedent for "separate but equal" policies, which were later applied to schools and other public facilities.
The Amendment's application to race has been a subject of debate, with some arguing that race-conscious measures designed to address racial discrimination and inequality violate the Fourteenth Amendment. In Regents of the University of California v. Bakke (1978), the Supreme Court found that such measures were presumptively unconstitutional, equating them with discrimination rooted in racial antipathy and beliefs of racial inferiority or superiority. This decision limited the remedial justification for addressing the lasting effects of historical racial discrimination and subordination to individual cases of proven discrimination.
However, Justice Powell offered an alternative rationale for race-conscious admissions by colleges and universities, recognising ""diversity" as a compelling governmental interest. This rationale was based on the First Amendment's interest in academic freedom rather than the Fourteenth Amendment's interest in equal protection. Despite the Fourteenth Amendment's original purpose, the majority of the Bakke Court held that it had no special meaning for African Americans. In Grutter v. Bollinger (2003), the Court upheld a race-conscious admissions program at a public law school, settling a long-running argument.
The Fourteenth Amendment also applies to electoral practices, and gerrymandering or other practices that dilute minority voting strength can be challenged under this Amendment. Affirmative action and the degree to which government can consider race when formulating remedies for past discrimination are critical issues addressed through equal protection litigation.
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Proposed legislation to end racial profiling
While the US Constitution does not explicitly mention racial profiling, the 14th Amendment's Equal Protection Clause has been used to address claims of racially discriminatory enforcement by law enforcement agencies.
Racial profiling has been a persistent issue in the United States, with police departments and law enforcement agencies using racial or ethnic appearance as an indicator of suspicion, particularly targeting African Americans and Latinos, and, more recently, Arab, Middle Eastern, Muslim, and South Asian communities. While some police departments have made efforts to address racial profiling through internal rules, regulations, and training, it remains a pervasive problem.
To combat this, several pieces of legislation have been proposed to end racial profiling:
- Traffic Stops Statistics Act of 1997 (H.R. 118): Passed unanimously by the US House of Representatives in 1998, this was the first legislative attempt to address racial profiling, specifically targeting the disproportionate stopping of black and brown drivers for traffic infractions as a pretext for investigating other crimes without evidence.
- End Racial Profiling Act (ERPA): Introduced in successive Congresses over a decade, this comprehensive bill aimed to build on the momentum of the Traffic Stops Statistics Act and further address racial profiling.
- End Racial and Religious Profiling Act: Most recently reintroduced in the Senate in 2023, this act aims to prohibit federal, state, and local law enforcement agencies from targeting individuals based on actual or perceived race, ethnicity, national origin, religion, gender, gender identity, or sexual orientation. It also includes provisions for increased data collection, training for law enforcement officials, and the creation of procedures for addressing complaints of profiling.
- Additional Measures: Other proposed measures include strengthening data collection and publication on all police enforcement activities, including demographic information, and authorizing the Department of Justice to provide grants for the development and implementation of best policing practices that discourage profiling.
These proposed legislations reflect a growing recognition of the harmful impacts of racial profiling on communities of color, LGBTQ+ individuals, and other marginalized groups, and a commitment to fostering more trusting and effective relationships between law enforcement and the communities they serve.
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Frequently asked questions
The US Constitution prohibits racial profiling. The Fourth Amendment states that racial profiling is an unreasonable search and seizure. The Fourteenth Amendment guarantees equal protection, which is violated when racial profiling occurs.
Racial profiling is the practice of targeting individuals for police or security detention based on their race or ethnicity, with the belief that certain minority groups are more likely to engage in unlawful behaviour.
Racial profiling violates the constitutional right to equal protection under the law. It goes against the founding principle in the Declaration of Independence that "all men are created equal". Racial profiling also infringes on the Fourth Amendment's protection against unreasonable searches and seizures.
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