In his very first address to Congress — in the speech where new presidents first detail their priorities for the nation — George W. Bush devoted a few moments to an unlikely topic: racial profiling.
"Too many of our citizens have cause to doubt our nation's justice," he said, "when the law points a finger of suspicion at groups instead of individuals."
The issue had, in fact, played into the 2000 election. The national news was full of stories of doctors and lawyers and NFL players stopped for "driving while black," in seemingly every state from California to Massachusetts. Both candidates that year were asked in a presidential debate if they would support a federal law banning racial profiling, and they said they would. Before Congress, Bush was unequivocal.
"Earlier today, I asked John Ashcroft, the attorney general, to develop specific recommendations to end racial profiling," he announced. "It's wrong, and we will end it in America."
More than a decade later, with a rare moment of bipartisan momentum long past, Bush's promise remains unfulfilled. Communities across the country still chafe at the profiling they perceive in state immigration laws that allow police to disproportionately challenge the status of Hispanics, in surveillance of local Muslim communities, and in statistics showing that blacks are still interrogated by police on the street at a far higher rate than other groups. Black drivers, nationwide, are twice as likely as whites to be arrested during a traffic stop.
The consequences of this racial profiling are as evident as ever: in the frayed relationships between police and minorities, in the deep distrust among minorities of the justice system, and in the racial tension in Ferguson, Mo.
The year Bush declared that profiling was wrong, a bill was introduced in Congress, the End Racial Profiling Act, that attempted to make good on his promise. It required federal agencies to stop the practice, and local agencies that wanted federal money to do the same. By the fall of 2001, though — after the terrorist attacks of Sept. 11 — the will to tackle the issue waned. People who opposed profiling black drivers on New Jersey highways found they felt differently about profiling Muslim passengers at airports.
When he came to office, Barack Obama inherited much of the same problems that Bush described. And his attorney general, Eric Holder, vowed early in the new administration to pick up where Ashcroft left off, putting the weight of the federal government more firmly behind a policy to eradicate racial profiling.
Holder's promise, though, has lingered for the last four years, the review of federal policy dragging on, the new guidance still unreleased as the final days of Holder's tenure wind down. Civil-rights groups have grown anxious waiting for it, as several incidents — from the arrest of Henry Louis Gates Jr., to the shooting of Michael Brown, to the death of Eric Garner — have fanned racial tensions across the country.
On Monday, speaking in Atlanta about the tension that erupted in Ferguson, Holder hinted that he would finally announce such changes in the coming days, unveiling "rigorous new standards" on the use of race by law enforcement — "to help end racial profiling," he said, "once and for all."
The new policy would be one of the last major accomplishments of Holder's tenure, a central pillar of his civil-rights legacy.
Civil-rights advocates did not get the federal law they sought under the Bush administration. (The End Racial Profiling Act has been introduced, to no effect, in every Congress since). They did, however, eventually get an important document from the Department of Justice -- an 11-page "guidance regarding the use of race by federal law enforcement agencies."
In that 2003 decree by Ashcroft, the federal government for the first time defined racial profiling, and in stark terms:
'Racial profiling' at its core concerns the invidious use of race or ethnicity as a criterion in conducting stops, searches and other law enforcement investigative procedures. It is premised on the erroneous assumption that any particular individual of one race or ethnicity is more likely to engage in misconduct than any particular individual of another race or ethnicity.
Racial profiling in law enforcement is not merely wrong, but also ineffective.
Its use by law enforcement, the document said, also "has a terrible cost" to individuals and the nation's values.
"I think people were surprised that something like this could come out of John Ashcroft and the Bush Administration — pleasantly surprised," says Laura Murphy, director of the Washington Legislative Office of the American Civil Liberties Union.
But the guidance, which prohibited racial profiling by federal law enforcement agencies, also contained some gaping loopholes, making it a valuable statement of principles but a hollow tool for enforcing them.
First, the principles: The DOJ acknowledged that racial profiling is actually ineffective. This is especially noteworthy, since even today prominent officials have continued to dispute the idea, even if they don't use the word "profiling." Up until the end of his tenure last year, New York City Mayor Michael Bloomberg defended the city's aggressive stop-and-frisk program for disproportionately targeting the groups that he said commit disproportionate amounts of crime.
Neither opponents of racial profiling nor the 2003 federal guidance deny the right of law enforcement officers to use race in responding to specific descriptions of criminals. Officers don't have to ignore the race of a suspect if he's described as "black, 5'10", wearing a gray sweater."
Racial profiling, rather, refers more broadly to the kind of calculation Bloomberg was describing: That if officers stop more blacks, they will increase their chances of finding criminals, because criminals are more likely to be black.
That "profiling hypothesis," as law professor David A. Harris puts it, has repeatedly been proven wrong. Harris' analyses have found that racial profiling actually makes police less accurate, not more so, in catching criminal activity. That's because it wastes resources on false positives among people police would never otherwise stop (black lawyers on their way to work), and because the focus on race diverts attention from the clues that actually do hint at criminal activity.
"If you want to know if somebody is involved in, say, transporting drugs on a highway, if you want to know whether somebody might be up to no good in an airport, you should watch with unrelenting intensity what they are doing, not what they look like — because that’s the only good predictor," says Harris, a professor at the University of Pittsburgh School of Law.
Harris often hears people justify profiling Arabs at airports as "better safe than sorry." But, in fact, by making law enforcement less accurate, Harris argues that profiling potentially makes communities less safe. And this effect is further compounded by the mistrust that arises in heavily profiled communities, where residents are wary of reporting crime or of cooperating with law enforcement.
Ashcroft's 2003 guidance, however, also included important loopholes. The document applied only to federal law enforcement agencies, not local ones. And it carved out exceptions for the two broad cases where profiling is most relevant to federal work: in national security and border integrity.
DOJ's piercing language on the costs of racial profiling did not apply, in other words, to terrorism investigations, airport screenings or border patrol. They left open the ability for federal agencies like the FBI to map Muslim Americans living in Michigan, for example, to track potential terrorist threats. They granted wide latitude to Customs and Border Protection, which operates well inside the U.S. border.
"The exceptions were written so broadly that they basically swallowed the rule," says Farhana Khera, the executive director of the legal advocacy organization Muslim Advocates.
Shortly after protests began this summer in Ferguson, decrying unequal treatment of blacks by local police, numbers came out that seemed to support the protesters' point. Racial profiling data compiled by the Missouri attorney general found that black drivers were the target of 86 percent of traffic stops in the city last year, and 93 percent of traffic stops that ended in an arrest. By contrast, blacks make up 63 percent of the local population over 16.
Those numbers are not so different from data the ACLU compiled in the 1990s for a series of lawsuits that helped turn racial profiling into a national story and a subject of presidential debate. In one suit against the Illinois State Police, the ACLU found that Hispanics, who made up less than 1 percent of the driving-age population in several counties outside of St. Louis, made up nearly a third of stops there for speeding less than five miles over the speed limit.
Similar disparities occur today far from St. Louis: In New York City, young black men in 2011 were involved in a quarter of stop-and-frisk cases, while making up less than 2 percent of the city's population. In Boston, police data show that blacks, who make up about a quarter of the city's population, were involved in 63 percent of encounters with police from 2007-2010.
This critique doesn't necessarily imply that law enforcement should interact with each demographic group in exact proportion to its share of the population. But such extreme disparities reveal that police are stopping many minorities who've committed no crime, and leaving young black men in particular at risk when police stops escalate into deadly encounters.
The numbers on continuing racial disparities in police profiling reflect the environment — and the anger — Holder inherited when he announced, in 2010, that the DOJ would review and update Ashcroft's original guidance. In the years since then, civil-rights advocates have lobbied intensely. They have pushed Holder to eliminate the national and border security loopholes. They have pushed him to add religious protections, too, to cover Muslims and Sikhs who've felt particularly targeted, often because of their appearance, since Sept. 11.
They also want Holder to extend his reach to local law enforcement agencies, by insisting on the same anti-racial profiling standards for departments that receive federal resources (like free hand-me-down military equipment, community-policing grants, or those body-camera funds Obama also announced this week). In many contexts, after all, Washington has used federal resources as leverage to influence local policy. As attorney general, Holder otherwise has no control over policies set by local police departments.
Advocates have been repeating these requests for several years now, in new reports and open letters and public pleas. Now, as Holder prepares to finally announce the new standards, they are anxious about what he will say.
"They can repeat back to us everything that we’ve asked for, but they have not shared a draft, they have not said 'we can do this, but we can’t do that,'" says Murphy of the ACLU. "They have been more tight-lipped about this policy than George Bush’s Administration was when the guidance came out in 2003."
That reality suggests, ironically, that it may have been easier for John Ashcroft to denounce racial profiling in 2003 — to declare that the American "goal of 'liberty and justice for all' recedes with every act of such discrimination" — than for the nation's first black attorney general, and first black president, to say so today.
"Every time this administration tries to have a conversation about addressing racial problems in this society, they’ve gotten slammed," Murphy says. "Everything from the beer summit to Holder’s speech on ‘we're cowards’ on issues of race — they just have been treated like no other administration. And I think it’s totally unfair, and it’s had the effect of chilling certain actions on their part."