US: Updated Racial Profiling Rules Fall Short

Source: Human Rights Watch

(Washington, DC) – The US Department of Justice long-awaited reforms to its rules on racial profiling still permit discriminatory practices against minority groups and migrants, Human Rights Watch said today.

The revisions to the Justice Department’s 2003 Guidance Regarding the Use of Race by Federal Law Enforcement Agencies (the “Guidance”), released on December 8, 2014, include modest improvements, such as adding religion as a prohibited basis for profiling. However, the Guidance allows community profiling and profiling in US border areas. The Guidance only applies to federal agencies, not state law enforcement officers unless they are collaborating in an investigation.

“Attorney General Eric Holder is trying to have it both ways, criticizing profiling while embracing it at the same time,” said Antonio Ginatta, US advocacy director at Human Rights Watch. “Bottom line: there’s no right way to profile.”

The 2003 Guidance prohibited the use of race or ethnicity during traditional law enforcement activities by federal agencies, but allowed for profiling under several exemptions and omissions. Those included profiling to protect national security and maintain border integrity. The Guidance also did not specifically prohibit profiling on the basis of religion.

The announced reforms explicitly prohibit profiling on the basis of religion during traditional law enforcement, as well as on national origin, gender, sexual orientation, and gender identity. The updated Guidance eliminates a national security exemption, but still allows community profiling programs. And the 2014 Guidance specifically does not apply to “interdiction activities in the vicinity of the border, or to protective, inspection, or screening activities” at the border.

Human Rights Watch has been monitoring reports of alleged profiling at US borders – which under a 1950s regulatory interpretation means anywhere within a 100 air miles of the actual border. A recent Human Rights Watch letter to Holder documented the case of a US citizen of Mexican origin living 22 miles from the US border with Canada who was interrogated by US Border Patrol agents while serving as a translator for a Mexican woman at the request of local police. A number of lawsuits have alleged that Customs and Border Protection agents have been racially profiling residents of border regions.

Though the Guidance purports to eliminate the national security exemption, it effectively creates a new one by allowing the Federal Bureau of Investigation (FBI) to continue community mapping programs, through which the FBI collects information on where ethnic and religious communities are located. The danger of community mapping is that it serves as a pretext for heightened law enforcement in those communities, causing mistrust of law enforcement in precisely the communities where law enforcement officials need to build trust, Human Rights Watch said in a separate letter to Holder.

The Justice Department first began reviewing the Guidance in 2009. Holder announced his resignation as attorney general in September but agreed to stay on until his successor is confirmed.

“Half-hearted reforms are a sorry legacy,” Ginatta said. “Congress should step in and put an end to profiling once and for all.”