To prohibit racial profiling.

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IN THE SENATE OF THE UNITED STATES

June 6, 2001

Mr. FEINGOLD (for himself, Mr. CORZINE, Mrs. CLINTON, Mr. KENNEDY, Mr. TORRICELLI, Mr. SCHUMER, Mr. DURBIN, Ms. STABENOW, and Mr. REID) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To prohibit racial profiling.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) SHORT TITLE- This Act may be cited as the `End Racial Profiling Act of 2001'.

(b) TABLE OF CONTENTS- The table of contents of this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings and purposes.

TITLE I--PROHIBITION OF RACIAL PROFILING

Sec. 101. Prohibition.

Sec. 102. Enforcement.

TITLE II--PROGRAMS TO ELIMINATE RACIAL PROFILING BY FEDERAL LAW ENFORCEMENT AGENCIES

Sec. 201. Policies to eliminate racial profiling.

TITLE III--PROGRAMS TO ELIMINATE RACIAL PROFILING BY STATE AND LOCAL LAW ENFORCEMENT AGENCIES

Sec. 301. Policies required for grants.

Sec. 302. Best practices development grants.

TITLE IV--DEPARTMENT OF JUSTICE REPORT ON RACIAL PROFILING IN THE UNITED STATES

Sec. 401. Attorney General to issue report on racial profiling in the United States.

Sec. 402. Limitation on use of data.

TITLE V--DEFINITIONS AND MISCELLANEOUS PROVISIONS

Sec. 501. Definitions.

Sec. 502. Severability.

Sec. 503. Savings clause.

Sec. 504. Effective dates.

SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS- Congress makes the following findings:

(1) The vast majority of law enforcement agents nationwide discharge their duties professionally, without bias, and protect the safety of their communities.

(2) The use by police officers of race, ethnicity, or national origin in deciding which persons should be subject to traffic stops, stops and frisks, questioning, searches, and seizures is a problematic law enforcement tactic. Statistical evidence from across the country demonstrates that such racial profiling is a real and measurable phenomenon.

(3) As of November 15, 2000, the Department of Justice had 14 publicly noticed, ongoing, pattern or practice investigations involving allegations of racial profiling and had filed five pattern and practice lawsuits involving allegations of racial profiling, with four of those cases resolved through consent decrees.

(4) A large majority of individuals subjected to stops and other enforcement activities based on race, ethnicity, or national origin are found to be law-abiding and therefore racial profiling is not an effective means to uncover criminal activity.

(5) A 2001 Department of Justice report on citizen-police contacts in 1999 found that, although African-Americans and Hispanics were more likely to be stopped and searched, they were less likely to be in possession of contraband. On average, searches and seizures of African-American drivers yielded evidence only eight percent of the time, searches and seizures of Hispanic drivers yielded evidence only 10 percent of the time, and searches and seizures of white drivers yielded evidence 17 percent of the time.

(6) A 2000 General Accounting Office report on the activities of the United States Customs Service during fiscal year 1998 found that black women who were United States citizens were 9 times more likely than white women who were United States citizens to be X-rayed after being frisked or patted down and, on the basis of X-ray results, black women who were United States citizens were less than half as likely as white women who were United States citizens to be found carrying contraband. In general, the report found that the patterns used to select passengers for more intrusive searches resulted in women and minorities being selected at rates that were not consistent with the rates of finding contraband.

(7) Current local law enforcement practices, such as ticket and arrest quotas, and similar management practices, may have the unintended effect of encouraging law enforcement agents to engage in racial profiling.

(8) Racial profiling harms individuals subjected to it because they experience fear, anxiety, humiliation, anger, resentment, and cynicism when they are unjustifiably treated as criminal suspects. By discouraging individuals from traveling freely, racial profiling impairs both interstate and intrastate commerce.

(9) Racial profiling damages law enforcement and the criminal justice system as a whole by undermining public confidence and trust in the police, the courts, and the criminal law.

(10) Racial profiling violates the Equal Protection Clause of the Constitution. Using race, ethnicity, or national origin as a proxy for criminal suspicion violates the constitutional requirement that police and other government officials accord to all citizens the equal protection of the law. Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 (1977).

(11) Racial profiling is not adequately addressed through suppression motions in criminal cases for two reasons. First, the Supreme Court held, in Whren v. United States, 517 U.S. 806 (1996), that the racially discriminatory motive of a police officer in making an otherwise valid traffic stop does not warrant the suppression of evidence. Second, since most stops do not result in the discovery of contraband, there is no criminal prosecution and no evidence to suppress.

(12) Current efforts by State and local governments to eradicate racial profiling and redress the harms it causes, while laudable, have been limited in scope and insufficient to address this national problem.

(b) PURPOSES- The independent purposes of this Act are--

(1) to enforce the constitutional right to equal protection of the laws, pursuant to the Fifth Amendment and section 5 of the 14th Amendment to the Constitution of the United States;

(2) to enforce the constitutional right to protection against unreasonable searches and seizures, pursuant to the Fourth Amendment to the Constitution of the United States;

(3) to enforce the constitutional right to interstate travel, pursuant to section 2 of article IV of the Constitution of the United States; and

(4) to regulate interstate commerce, pursuant to clause 3 of section 8 of article I of the Constitution of the United States.

TITLE I--PROHIBITION OF RACIAL PROFILING

SEC. 101. PROHIBITION.

No law enforcement agent or law enforcement agency shall engage in racial profiling.

SEC. 102. ENFORCEMENT.

(a) REMEDY- The United States, or an individual injured by racial profiling, may enforce this title in a civil action for declaratory or injunctive relief, filed either in a State court of general jurisdiction or in a District Court of the United States.

(b) PARTIES- In any action brought pursuant to this title, relief may be obtained against: any governmental unit that employed any law enforcement agent who engaged in racial profiling; any agent of such unit who engaged in racial profiling; and any person with supervisory authority over such agent.

(c) NATURE OF PROOF- Proof that the routine investigatory activities of law enforcement agents in a jurisdiction have had a disparate impact on racial or ethnic minorities shall constitute prima facie evidence of a violation of this title.

(d) ATTORNEYS' FEES- In any action or proceeding to enforce this title against any governmental unit, the court may allow a prevailing plaintiff, other than the United States, reasonable attorneys' fees as part of the costs, and may include expert fees as part of the attorney's fee.

TITLE II--PROGRAMS TO ELIMINATE RACIAL PROFILING BY FEDERAL LAW ENFORCEMENT AGENCIES

SEC. 201. POLICIES TO ELIMINATE RACIAL PROFILING.

(a) IN GENERAL- Federal law enforcement agencies shall--

(1) maintain adequate policies and procedures designed to eliminate racial profiling; and

(2) cease existing practices that encourage racial profiling.

(b) POLICIES- The policies and procedures described in subsection (a)(1) shall include the following:

(1) A prohibition on racial profiling.

(2) The collection of data on routine investigatory activities sufficient to determine if law enforcement agents are engaged in racial profiling and submission of that data to the Attorney General.

(3) Independent procedures for receiving, investigating, and responding meaningfully to complaints alleging racial profiling by law enforcement agents of the agency.

(4) Procedures to discipline law enforcement agents who engage in racial profiling.

(5) Such other policies or procedures that the Attorney General deems necessary to eliminate racial profiling.

TITLE III--PROGRAMS TO ELIMINATE RACIAL PROFILING BY STATE AND LOCAL LAW ENFORCEMENT AGENCIES

SEC. 301. POLICIES REQUIRED FOR GRANTS.

(a) IN GENERAL- An application by a State or governmental unit for funding under a covered program shall include a certification that such unit and any agency to which it is redistributing program funds--

(1) maintains adequate policies and procedures designed to eliminate racial profiling; and

(2) has ceased existing practices that encourage racial profiling.

(b) POLICIES- The policies and procedures described in subsection (a) shall include the following:

(1) A prohibition on racial profiling.

(2) The collection of data on routine investigatory activities sufficient to determine if law enforcement agents are engaged in racial profiling and submission of that data to the Attorney General.

(3) Independent procedures for receiving, investigating, and responding meaningfully to complaints alleging racial profiling by law enforcement agents.

(4) Procedures to discipline law enforcement agents who engage in racial profiling.

(5) Such other policies or procedures that the Attorney General deems necessary to eliminate racial profiling.

(c) NONCOMPLIANCE- If the Attorney General determines that a grantee is not in compliance with conditions established pursuant to this title, the Attorney General shall withhold the grant, in whole or in part, until the grantee establishes compliance. The Attorney General shall provide notice regarding State grants and opportunities for private parties to present evidence to the Attorney General that a grantee is not in compliance with conditions established pursuant to this title.

SEC. 302. BEST PRACTICES DEVELOPMENT GRANTS.

(a) GRANT AUTHORIZATION- The Attorney General may make grants to States, law enforcement agencies and other governmental units, Indian tribal governments, or other public and private entities to develop and implement best practice devices and systems to ensure the racially neutral administration of justice.

(b) USES- The funds provided pursuant to subsection (a) may be used to support the following activities:

(1) Development and implementation of training to prevent racial profiling and to encourage more respectful interaction with the public.

(2) Acquisition and use of technology to facilitate the collection of data regarding routine investigatory activities in order to determine if law enforcement agents are engaged in racial profiling.

(3) Acquisition and use of technology to verify the accuracy of data collection, including in-car video cameras and portable computer systems.

(4) Development and acquisition of early warning systems and other feedback systems that help identify officers or units of officers engaged in or at risk of racial profiling or other misconduct, including the technology to support such systems.

(5) Establishment or improvement of systems and procedures for receiving, investigating, and responding meaningfully to complaints alleging racial or ethnic bias by law enforcement agents.

(6) Establishment or improvement of management systems to ensure that supervisors are held accountable for the conduct of their subordinates.

(c) EQUITABLE DISTRIBUTION- The Attorney General shall ensure that grants under this section are awarded in a manner that reserves an equitable share of funding for small and rural law enforcement agencies.

(d) AUTHORIZATION OF APPROPRIATIONS- The Attorney General shall make available such sums as are necessary to carry out this section from amounts appropriated for programs administered by the Attorney General.

TITLE IV--DEPARTMENT OF JUSTICE REPORTS ON RACIAL PROFILING IN THE UNITED STATES

SEC. 401. ATTORNEY GENERAL TO ISSUE REPORTS ON RACIAL PROFILING IN THE UNITED STATES.

(a) REPORTS-

(1) IN GENERAL- Not later than two years after the enactment of this Act, and each year thereafter, the Attorney General shall submit to Congress a report on racial profiling by Federal, State, and local law enforcement agencies in the United States.

(2) SCOPE- The reports issued pursuant to paragraph (1) shall include--

(A) a summary of data collected pursuant to sections 201(b)(2) and 301(b)(2) and any other reliable source of information regarding racial profiling in the United States;

(B) the status of the adoption and implementation of policies and procedures by Federal law enforcement agencies pursuant to section 201;

(C) the status of the adoption and implementation of policies and procedures by State and local law enforcement agencies pursuant to sections 301 and 302; and

(D) a description of any other policies and procedures that the Attorney General believes would facilitate the elimination of racial profiling.

(b) DATA COLLECTION- Not later than six months after the enactment of this Act, the Attorney General shall by regulation establish standards for the collection of data pursuant to sections 201(b)(2) and 301(b)(2), including standards for setting benchmarks against which collected data shall be measured. Such standards shall result in the collection of data, including data with respect to stops, searches, seizures, and arrests, that is sufficiently detailed to determine whether law enforcement agencies are engaged in racial profiling and to monitor the effectiveness of policies and procedures designed to eliminate racial profiling.

SEC. 402. LIMITATION ON USE OF DATA.

Information released pursuant to section 401 shall not reveal the identity of any individual who is detained or any law enforcement officer involved in a detention.

TITLE V--DEFINITIONS AND MISCELLANEOUS PROVISIONS

SEC. 501. DEFINITIONS.

In this Act:

(1) COVERED PROGRAM- The term `covered program' means any program or activity funded in whole or in part with funds made available under any of the following:

(A) The Edward Byrne Memorial State and Local Law Enforcement Assistance Programs (part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.)).

(B) The `Cops on the Beat' program under part Q of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42

U.S.C. 3796dd et seq.), but not including any program, project, or other activity specified in section 1701(d)(8) of that Act (42 U.S.C. 3796dd(d)(8)).

(2) GOVERNMENTAL UNIT- The term `governmental unit' means any department, agency, special purpose district, or other instrumentality of Federal, State, local, or Indian tribal government.

(3) LAW ENFORCEMENT AGENCY- The term `law enforcement agency' means a Federal, State, local, or Indian tribal public agency engaged in the prevention, detection, or investigation of violations of criminal, immigration, or customs laws.

(4) LAW ENFORCEMENT AGENT- The term `law enforcement agent' means any Federal, State, local, or Indian tribal official responsible for enforcing criminal, immigration, or customs laws, including police officers and other agents of Federal, State, and local law enforcement agencies.

(5) RACIAL PROFILING- The term `racial profiling' means the practice of a law enforcement agent relying, to any degree, on race, ethnicity, or national origin in selecting which individuals to subject to routine investigatory activities, or in deciding upon the scope and substance of law enforcement activity following the initial routine investigatory activity, except that racial profiling does not include reliance on such criteria in combination with other identifying factors when the law enforcement agent is seeking to apprehend a specific suspect whose race, ethnicity, or national origin is part of the description of the suspect.

(6) ROUTINE INVESTIGATORY ACTIVITIES- The term `routine investigatory activities' includes the following activities by law enforcement agents: traffic stops; pedestrian stops; frisks and other types of body searches; consensual or nonconsensual searches of the persons or possessions (including vehicles) of motorists or pedestrians; inspections and interviews of entrants into the United States that are more extensive than those customarily carried out; and immigration-related workplace investigations.

SEC. 502. SEVERABILITY.

If any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of the provisions of such to any person or circumstance shall not be affected thereby.

SEC. 503. SAVINGS CLAUSE.

Nothing in this Act shall be construed to limit legal or administrative remedies under section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983), section 210401 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14141), the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3701 et seq.), and title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).

SEC. 504. EFFECTIVE DATES.

(a) IN GENERAL- Except as provided in subsection (b), the provisions of this Act shall take effect on the date of the enactment of this Act.

(b) CONDITIONS ON FUNDING- Section 301 shall take effect 1 year after the date of enactment of this Act.

END

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