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Report criticizes DEA’s poor monitoring for racial bias in ‘cold consent’ stops

Federal drug agents who questioned a black Pentagon attorney for suspicion of drug trafficking as she prepared to board a plane for government business triggered a critical watchdog review of the Drug Enforcement Administration’s “cold consent encounters.”

The practice allows DEA agents at airports and other mass transit facilities to conduct interviews and searches of individuals, but only with the person’s consent. The Justice Department’s inspector general sharply criticized the agency Thursday, however, for its limited collection of demographic data on the practice.

The DEA doesn’t track demographic data on stops that fail to turn up drugs and money or result in arrests, which the IG report said prevents accountability on issues such as racial profiling.

“Without this information, the DEA cannot assess the impartiality with which cold consent encounters and searches are conducted,” the report said. “We believe collecting such data would enhance oversight of DEA’s interdiction activities and assist the DEA in responding to allegations that its special agents or task force officers inappropriately considered race as a basis for encounters.”

The review also found the DEA provides little instruction or oversight for the stops. For instance, only 29 percent of its task force members and 47 percent of supervisors had attended training, and most agents were unaware of reporting requirements that could help determine whether officers use the method improperly.

Nusrat Choudhury, an attorney with the American Civil Liberties Union’s racial-justice program, said the cold-consent program could easily lead to problems.

“This type of highly discretionary law-enforcement technique provides an opening for implicit biases to influence the officers’ decisions and actions,” she said. “All people are vulnerable to biases.”

The IG launched its probe after the Pentagon attorney filed a complaint, saying she faced humiliating and aggressive questioning. She was not identified in Thursday’s report.

A DEA spokesman said the agency concurs with the IG reforms, but the agency also said in a letter that cold-consent encounters are one of many tools it uses to disrupt drug-trafficking networks. It added that  it can’t legally force an individual to provide demographic information without an arrest.

“It would not be in DEA’s best interest to use its best guesstimate in determining the race during an encounter, which may not result in an accurate statistic,” the letter said.

Choudhur called the DEA’s explanation a “terrible excuse for not collecting data,” adding that “there are perception challenges, but those can be addressed with training.”

The IG findings come as the Justice Department intensifies its scrutiny of state and local law-enforcement departments for potential civil-rights abuses in response to incidents in New York City and Ferguson, Mo., where police killings of unarmed black men have led to unrest and questions about proper tactics.

“Cold consent” has been compared to New York’s controversial and significantly reduced  ‘stop-and-frisk’ policing tactics that critics said were used disproportionately in minority communities.

The fact that DEA officers must seek permission before conducting interviews and searches has not eliminated concerns about potential civil rights violations. Choudry said the consent concept is “not reassuring,” adding that “most people who are asked to consent to a search by a DEA agent will consent, uninformed of their right to refuse.”

The program has led to other complaints before the Pentagon attorney’s case.

In 2007, for example, two African American women filed complaints against agents who allegedly boarded an Amtrak train in Dearborn, Mich., and interrogated nine African Americans but no whites among 64 passengers. The agency cleared the officers of racial profiling after they said they spoke with all of the travelers, obtained consent for their searches and ultimately made no arrests.

In the case of the Pentagon attorney, DEA agents found no drugs or vast amounts of cash on her. An investigation of her complaint by the DEA’s Office of Professional Responsibility did not substantiate her reports of aggressive and humiliating questioning.

On Thursday, however, the IG office said the incident “raised concerns because the Justice Department has noted that cold consent encounters are more often associated with racial profiling than law-enforcement contacts based on previously acquired information.”

The recommended that the DEA reconsider collecting demographic data for cold-consent encounters and requiring all agents who use the practice to attend training.

Agency spokesman Patrick Rodenbush said in a statement Thursday that “DEA concurs with the recommendations of the report and is already taking appropriate steps to implement them,” including convening a work group to consider data collection and how to use the information.