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Where's the Line Between Profiling, Policing?


I'm Michel Martin and this is TELL ME MORE from NPR News. Coming up, we'll check in with Boston Globe film critic Wesley Morris, one of our regular contributors. He just won a Pulitzer Prize and we hope he's still taking our calls to tell us about the new films coming out this summer. That's in just a few minutes.

But first we want to talk about a question that has challenged this nation's justice system for decades, if not centuries. Are our police and courts really colorblind, or does racial profiling, conscious or unconscious, play too great a role in who is arrested, who's prosecuted, and who is jailed?

On Tuesday, the Senate Judiciary Committee held that body's first hearings on racial profiling in a decade. Some lawmakers involved are hoping that a new bill called the End Racial Profiling Act of 2011 will take racial bias out of the justice system, especially law enforcement. In a minute we'll hear more about the hearings from NPR's Carrie Johnson, who covered them.

But with us now is the man who presided over them, Illinois Senator Dick Durbin. He chaired the hearing. He's also majority rep of the Senate. That's the number two leadership post. And he joins us now from his office at the Capitol. Senator Durbin, thanks so much for speaking with us.

SEN. RICHARD DURBIN: Good to be with you, Michel.

MARTIN: Why do you think this was a good time to hold these hearings?

DURBIN: Take a look at what's happened in 10 years since the last hearing. You are so right in saying that we still wrestle with the issue of race. We have since the beginning of our nation. We know that from the Trayvon Martin circumstance in Sanford, Florida. But add to that concerns about profiling based on national origin, where laws in states like Arizona invite the law enforcement community, if they have reasonable suspicion that a person may have violated the immigration laws, to detain or arrest them.

That's an invitation to go after those who appear to be Hispanic or sound Hispanic. And then, of course, is the 9/11 aftermath. We know that what's happened in many instances is abusive to people of Islamic faith, Arabic surnames, and it's gone too far. It's a reminder that we can be safe as a nation and we need to work to be safe, but consistent with our constitutional values.

MARTIN: The bill would require data collection and training, specific training around this issue. That's in fact the protocol now with a number of large police departments. But if departments don't comply, they could lose federal funding. There was some testimony from Frank Gale. He's with the Fraternal Order of Police.

That's the country's biggest law enforcement association. In some jurisdictions it's also the police union. He was opposing this measure. Here's what he had to say.


FRANK GALE: This bill provides a solution to a problem that does not exist, unless one believes that the problem to be solved is that our nation's law enforcement officers are patently racist and that their universal training is based in practicing racism.

MARTIN: This might be a good place to disclose that I come from a policing background. Six members of my family are career law enforcement officers in New York. So I would venture to say that there's probably different opinions about that. But having said all that, what's your response to Mr. Gale's assertion?

DURBIN: Well, of course we had the police chief of East Palo Alto, Chief Davis, who was there, and he's had a career in law enforcement and sees the issue completely differently. But let me say at the outset, I've stipulated at the hearing - I want to say here - I have the highest respect for the men and women in law enforcement.

They literally put their lives on the line every minute of every day to protect my family and our communities, and I think they are extraordinary professionals and great public servants. But we also know, and the vast majority of Americans acknowledge, that sometimes bias gets into the process and bias is not a good way to solve a crime or to deter violent criminals.

We need to be thoughtful in our approach, and when you start profiling all people of a certain racial group or ethnic group or of a certain background, you end up really missing those who are most likely to be guilty of the crime. I listened to Officer Gale and I want to make it clear I don't believe that law enforcement personnel are by their nature racist.

There may be some among them. You could say the same of politicians, incidentally. But what we want to do is try through training and through efforts in this bill to root out any elements of bias or prejudice when it comes to the enforcement of the law.

MARTIN: How do you address something that might be subconscious? Like, for example, this case that's so much in the news, the Trayvon Martin case - George Zimmerman, the person who we know shot the young man who was unarmed, we know that's the question at issue here, is what was his motivation.

He was not trained by law enforcement. He was not a law enforcement, you know, person, but it's no longer the case - it's very rarely, let's say, the case that there is some person issuing an edict saying...

DURBIN: Right.

MARTIN: ...go look at these people or give blacks and Latinos or Muslims an extra, you know, dose of suspicion. So how do you address something that may be subconscious, people reacting to sort of their whole life's worth of social cues? What do you do about that?

DURBIN: One of the more interesting moments at the hearing is when Chief Davis of East Palo Alto, California, who is African-American, said: I've been guilty of profiling. I thought back at some of my own activities on the police force and thought to myself the only reason you stopped that person was because of a conception in your mind that that group of people is more likely to be criminal.

And he said: I have to be reminded and trained and basically alerted to the fact that that's not good law enforcement. It is a prejudice which is built into many people and although they spend most of their lives trying to defeat that prejudice, as they should, it is something which we have to acknowledge, it is part of the human condition, part of the human weakness.

MARTIN: What about - there was some testimony yesterday about New York City police monitoring Muslim groups within and outside of the city because of concerns about terrorism, but you've supported legislation like the Patriot Act that greatly expands government surveillance. Some civil libertarians say there's not much - that's not much difference from profiling.

But other people say that's just common sense when there are criminal networks, just like street gangs, that have been organized around ethnic lines. So where's the line between profiling and kind of common sense steps to ensure our national and domestic security?

DURBIN: First, we expect law enforcement to keep us safe, particularly in the age of terrorism. And I understand this is a delicate definition here, that on one hand we want to go after and investigate, gather intelligence on those who could be harmful to us. But at the same time we cannot, should not, I hope we never will, categorize all people of a certain religion or ethnic background as being a danger to the United States.

I had many differences with President George W. Bush, but I thought after 9/11 he was very explicit when he talked about the fact that ours is not a war against the Islamic faith. I think he referred to it as one of the world's great religions. And it is. Our war is against those who would distort it and use the Islamic faith as some excuse for terrorism and extremism.

Drawing that line is critically important if we're going to keep ourselves safe and not discriminate against peace-loving, patriotic Muslim Americans.

MARTIN: Before we let you go, do you envision that this is something we will not be talking about in our lifetimes, your and mine?

DURBIN: You know, when the founding fathers set down to write the Constitution, they struggled with a number of issues: race, gender, religion. We struggle with them today. It is part of the challenge of government in a diverse society, a democratic society like America. But each generation has to do its part to recommit to those basic constitutional values of equal opportunity and due process. I hope the hearing yesterday will move us forward in that conversation.

MARTIN: Senator Dick Durbin of Illinois chaired a hearing in the Senate yesterday on racial profiling. He also is the second-ranking Democrat in the U.S. Senate and he was kind enough to join us by phone from his office on Capitol Hill. Senator Durbin, thank you so much for speaking with us.

DURBIN: Thanks, Michel.

MARTIN: We're joined now by NPR's justice correspondent Carrie Johnson for additional insight. She covered those hearings for NPR. Carrie, thanks so much joining us once again.


MARTIN: A number of the people who testified yesterday are people we've heard from previously. They've been in the news on whatever side of the question they were on, but were there any surprises at the hearing?

JOHNSON: To me, Michel, the most surprising thing was hearing people, including lawmakers and people in law enforcement, talking about their personal experience with profiling. Some of these stories came as a shock to me. When I heard Congressman Keith Ellison of Minnesota talking about his fear that his son, who's active in a Muslim students' association in college, might be winding up in the NYPD's files and surveillance; when I heard - when I heard Ronald Davis, the police chief in East Palo Alto, California, talk about that, after 27 years in law enforcement as an African-American, he still feels he's been profiled and treated differently because of his race, even in law enforcement. Those kinds of things were not what you hear every day, covering Justice Department issues.

MARTIN: Did this hearing - or did this seem to break down along party lines, as so many issues do these days?

JOHNSON: Not entirely. Lindsey Graham, a Republican senator from South Carolina, was present at the Senate judiciary hearing. He said he may be inclined to support a bill to end racial profiling. But for him, the key question is where the line between effective law enforcement, good policing and racial profiling is. It's hard for him to tell, he said, where that line begins, and where it ends.

MARTIN: We heard from Frank Gale, the head of the FOP, which is, as we said, the largest law enforcement association in the United States - in some jurisdictions, it also is the police union - expressing opposition to the bill, saying that he doesn't think that this is something that is needed. Were there other voices in law enforcement that had a different view?

JOHNSON: Chief Davis from California certainly expressed a different view. He said, in his mind, the distinction here is between describing somebody who's running away from a scene by his or her race or ethnicity and predicting somebody's going to commit a crime on the basis of their race and ethnicity.

There was also some really good testimony from a law professor named David Harris from Pittsburgh who studied racial profiling over the years. He says this just doesn't work. In fact, police who use profiling are less effective, and much less effective than those who don't.

MARTIN: That was going to be my last question to you. Was there any testimony presented or data presented to suggest that this is a fixable issue? Because there are those who would argue that you really can't legislate beliefs and opinions, that this is just something that has to evolve, you know, over time, however long. Was there anything to suggest that this is something you actually can train people out of in a way that makes them more effective?

JOHNSON: Michel, I think the key is awareness, and so what this bill is trying to do and what people in law enforcement - people of color and white people in law enforcement who support this idea - are trying to do is get it on people's minds, on people's radar screens, in their heads.

What Chief Davis from California said was, listen. When somebody calls up the 911 line in his area and says, there's a suspicious guy in my neighborhood, we've got to go after him. The police obligation is to say: Why is he suspicious? Why do you have suspicion about him? Asking that question before law enforcement responds is important.

MARTIN: Carrie Johnson covers the Justice Department for NPR. She joined us here in our Washington, D.C. studios. Carrie, thank you.

JOHNSON: Thank you.

MARTIN: Earlier, we spoke with Senator Dick Durbin of Illinois, who chaired the hearings on racial profiling on Capitol Hill on Tuesday. If you missed any or all of my conversation with him, you can catch up by going to our website. Go to npr.org, click on the Programs menu and then on TELL ME MORE. Transcript provided by NPR, Copyright NPR.