Can Eric Holder End Racial Profiling?

Scott Olson/Getty Images

Scott Olson/Getty Images

The short, cynical, but realistic answer to this question is a simple no. Racial profiling is difficult to measure, prove, and even recognize at times. As hard as Attorney General Eric H. Holder Jr. has worked — and says he plans to continue to work — on equal rights and protections, America has a long way to go. However, there are legal changes that can be put in place to increase civilians’ ability to defend themselves against it. Some states have done so, and the Justice Department is set to enact a major federal policy change in the next month that will help prevent federal profiling based on religion and race — something that was tolerated at new levels in the wake of 9/11. While Eric Holder may be leaving office, as announced last week at the White House, his departure will not take place until a replacement is decided upon by the President and confirmed in the Senate.

This could be a tricky and lengthy process, and Holder won’t be spending his remaining period as AG sitting comatose. “In the meantime, there remains a great deal to be done. I have no intention of letting up or slowing down,” said Holder at the Congressional Black Caucus Panel Discussion on Voting Rights last week. Instead, he’s expected to announce a change to federal profiling law, something that’s been in the works for some time but was delayed by the executive so Homeland Security could review it for potential security problems.

The policy would apply to federal law enforcement and would require evidence to support suspicion of criminal activity before targeting groups — for example, Muslim organizations — to be investigated. The policy change is both vital and disappointing in the wake of Michael Brown’s death in Ferguson and the subsequent racial tension that followed. It is vital as a step toward further equal rights under the law, but disappointing because it will not apply to local law enforcement agencies, many of which still legally allow racial profiling.

In 2000, the U.S. Department of Justice released a instructional report on data collection, giving both anecdotal and empirical evidence of racial profiling while recommending the best ways for states to gather such information.

In particular, the report emphasized random stops as an oft-listed example. “By far the most common complaint by members of communities of color is that they are being stopped for petty traffic violations such as underinflated tires,” it reads. It has also been the subject of a number of highway studies used in court to show empirical evidence of racial profiling on the New Jersey Turnpike and in New York.

These are the sorts of examples that will not be addressed by federal policy change, though the DOJ and the Attorney General have been working to tackle state civil rights issues on a smaller scale as well, working with Georgia, Hawaii, and Kentucky to reform the criminal justice systems in each, “reducing recidivism, decreasing correctional spending, and improving public safety — all while reducing the number of youth who come in contact with the criminal justice system,” as Holder himself describes it.

Ultimately, though, even with efforts to improve the trust between state police and residents across racial and religious demographics, the fact remains that racial profiling is still legal in twenty U.S. states, and according to a 2014 report from the National Association for the Advancement of Colored People (NAACP), none of the U.S. states meets all of its requirements. Some states are more well-known for their stop and frisk violations, or have had more attention focused on their failures, but the fact remains that state’s without profiling bans range from all parts of the country, including Alaska, Michigan, Oregon, Idaho, Wyoming, South Dakota, North Dakota, Iowa, Indiana, Ohio, Pennsylvania, New York, Vermont, New Hampshire, Maine, Delaware, South Carolina, Georgia, and Mississippi.

The good news is that 30 states do have laws against racial profiling, 17 “require mandatory data collection for all stops and searches,” while 15 actually analyze and make public this data. While not the most overwhelming numbers, it does show that states have made moves toward improving the equal rights protections they offer citizens, creating examples for other states to follow as reform spreads. So while soon-to-be former Attorney General Holder may not have it within his power to end profiling on racial (as well as religious and sexual orientation) grounds, his federal policy change can help push the nation along while states take steps of their own.

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