Written statement to the Subcommittee on the Constitution, Civil Rights, and Human Rights of the Senate Committee on the Judiciary
April 17, 2012

Mr. Chairman and members of the Committee, thank you for the opportunity to submit a statement for today’s hearing on “Ending Racial Profiling in America.”

Human Rights Watch is an independent organization dedicated to promoting and protecting human rights around the globe. In the United States, we work to secure increased recognition of and respect for internationally recognized human rights, focusing on issues arising from excessive punishment and detention, insufficient access to due process, and discrimination.

Equality under the law is a cornerstone of human rights. The preamble to the Universal Declaration of Human Rights begins by stating that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation for freedom, justice and peace in the world.”[1] Two centuries earlier, the founders of the United States recognized a similar principle in the Declaration of Independence, acknowledging the self-evident truth that “all men are created equal.”

Profiling by law enforcement and other government agencies undermines the promise of equal treatment. Investigating, surveilling, or otherwise targeting people solely on the basis of their race, ethnicity, religion, or national origin is a clear form of discrimination and goes against the protections of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which the US ratified in 1994.[2]

Human Rights Watch has recently raised concerns about the problem of profiling in two separate contexts: Alabama’s recent immigrant law and the New York City Police Department’s surveillance of Muslim communities. Both forms of profiling are impermissible under ICERD.[3]

While affecting different communities, these two forms of profiling have similar poisonous consequences. First, profiling drives a wedge between law enforcement and the targeted community members, making them less likely to trust and engage law enforcement, thereby making the whole community less safe. Relying on profiling also gives law enforcement agencies the disincentive to engage in effective investigative techniques. Finally, and most troublingly, profiling results in further discrimination. By engaging in racial profiling, law enforcement legitimizes the marginalization of targeted racial, ethnic, and religious minorities and legitimizes the distrust of those communities.

 

Profiling resulting from Alabama’s immigrant law

In our December 2011 report No Way to Live, Human Rights Watch documented some of the consequences stemming from the passage of the Beason-Hammon Taxpayer and Citizen Protection Act, Alabama’s immigrant law.[4] One section of the act requires police to verify a person’s immigration status during a stop if they have reasonable suspicion that the person is not authorized to be in the country. Community members expressed concern that the law would lead police to profile people who “looked” undocumented. Several persons of Latino descent, including US citizens and legal residents, reported to us that since the law went into effect, the police stopped or arrested them for no reason or on pretext.

Fernando Rodriguez, a legal permanent resident and the minister of a church in Albertville, reported that he and his friend, another pastor, were given no reason for being stopped in the town of Warrior, soon after pulling out of a gas station. According to Rev. Rodriguez, the officer made abusive and derogatory statements like, “Why are you in the US?” and “Go back to Mexico.”

A Latino doctor who is a legal permanent resident reported that a few weeks after the law went into effect, a state trooper stopped his car but did not offer a reason for doing so. According to the doctor, the trooper, who was standing in the street, merely put out his hand, arm extended, after “look[ing] at the color of my skin.” After the officer saw the doctor had a driver’s license, he gave it back and let him go.

Stephen McGowan, an attorney in Dothan, reported that a client of his had been deported after he was pulled over, allegedly for having his radio on too loud. According to McGowan, however, the radio was broken and could not have been turned on.

One woman, who was born in the US and whose family is from the Dominican Republic, wondered if she had been the victim of racial profiling when she was pulled over soon after the immigrant law went into effect. The officer said he thought she had not been wearing her seatbelt. She admitted it was possible the seatbelt had not been visible against her dark clothing, but at the same time, in all the years she had lived in the area, she had never been stopped for not wearing a seatbelt before.

We documented several other questionable stops by police in our report. We cannot establish that these stops were directly motivated by passage of the law. Yet we were able to document a pervasive fear among persons of Latino origin that the Beason-Hammon Act was enabling profiling and that they were being treated differently by police after the law went into effect.

 

Profiling of Muslims by the New York City Police Department

Since August 2011, the Associated Press has published several reports detailing the New York City police department’s surveillance and intelligence-gathering efforts in Muslim communities, both inside and outside the city, from 2006 to 2008. The intelligence-gathering was carried out solely based on the communities’ religious or ethnic profile and not on suspicion of criminal activity.

One NYPD report detailed a 2007 surveillance operation focusing on Muslims in Long Island, New York and Newark, New Jersey. Plainclothes officers from the NYPD Demographics Unit infiltrated and photographed dozens of areas identified as “locations of concern,” including mosques, Muslim student organizations, and businesses owned or frequented by Muslims.

Using this information, the police department built databases showing where Muslims live, pray, buy groceries, and use internet cafes. The report acknowledged that the intelligence-gathering efforts went beyond the department’s jurisdiction and cited no evidence of terrorism or other criminal activity prompting the operation.

The Associated Press also reported that New York City police monitored Muslim college students throughout the northeastern United States, including at Syracuse University, Yale University, and the University of Pennsylvania.

This surveillance has had a chilling effect on the relationship between Muslims and law enforcement in the region. Michael Ward, director of the FBI’s Newark division, stated in the Washington Post, “What we have now is [Muslim communities] ... that they’re not sure they trust law enforcement in general, they're fearing being watched, they’re starting to withdraw their activities.”[5] The operation also hindered the effectiveness of other surveillance efforts that are not based on profiling. According to Ward, “the impact of that sinking tide of cooperation means that we don’t have our finger on the pulse of what’s going on in the community … we’re less knowledgeable, we have blind spots, and there’s more risk.”[6]

The cases of Alabama and New York show that the use of profiling is pernicious. Not only is it unlawful, profiling is ineffective and counterproductive as a public safety measure. 

Human Rights Watch urges all states to pass enforceable laws that bar profiling by law enforcement. The US Senate should take up the End Racial Profiling Act (ERPA) this year. ERPA, which prohibits law enforcement agencies from profiling on the basis ofrace, ethnicity, national origin, or religion, has languished in Congress for a decade.  Finally, the US Department of Justice should improve its Guidance Regarding the Use of Race by Federal Law Enforcement Agencies by prohibiting profiling based on religion, religious appearance, or national origin.

We thank you for the opportunity to submit this statement.

 



[1]Universal Declaration of Human Rights, adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948).

[2]International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106 (XX), annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force January 4, 1969, ratified by the United States on November 20, 1994. See article 2: “States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law.” See also article 5: “In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law.”

[3]The Committee on the Elimination of Racial Discrimination has recommended that states “[e]nsure that immigration policies do not have the effect of discriminating against persons on the basis of race, colour, descent, or national or ethnic origin” and “[e]nsure that any measures taken in the fight against terrorism do not discriminate, in purpose in effect, on the grounds of race, colour, descent, or national or ethnic origin.” General Recommendation No. 30, Discrimination against Non-citizens(Sixty-fourth session, 2004), U.N. Doc. CERD/C/64/Misc.11/rev.3 (2004). In General Recommendation No. 31, the Committee further recommended that states “take the necessary steps to prevent questioning, arrests and searches which are in reality based solely on the physical appearance of a person, that person’s colour or features or membership of a racial or ethnic group, or any profiling which exposes him or her to greater suspicion.” General Recommendation No. 31, The Prevention of Racial Discrimination in the Administration and Functioning of the Criminal Justice System (2002), U.N. Doc. A/60/18, p. 98-108.

[4]Human Rights Watch, United States – No Way to Live: Alabama’s Immigrant Law, December 14, 2011, http://www.hrw.org/reports/2011/12/14/no-way-live.

[5]Jason Grant, “FBI says Muslims’ trust is broken by NYPD spying,” Washington Post, March 7, 2012.

[6]Ibid.