Long time coming: Trayvon's law

For the first time in a decade, Congress holds a hearing on anti-profiling legislation

Published April 18, 2012 1:22PM (EDT)


The name of Trayvon Martin was invoked early and often at a Capitol Hill hearing on federal anti-profiling laws Tuesday as supporters hope the furor over the shooting of the Florida teenage will prompt Congress to take up a legislation that has languished since 2001.

"The senseless death of this innocent young man should be a wake-up call," said Sen. Dick Durbin of Illinois, a co-sponsor of legislation that would expand current federal law enforcement guidelines against profiling and mandate training on racial profiling at all federal law enforcement agencies.

"He was profiled, followed, chased and murdered," said Frederica Wilson, the cowboy hat-wearing congresswoman representing Miami Gardens where Trayvon lived with his mother. "This case has captured international attention and will go down in history as a textbook example of racial profiling."

More than 225 organizations submitted testimony for the hearing, which included testimony by five congressmen, civil liberties advocates and two police officials. Five senators attended, including Lindsey Graham, Republican of South Carolina. Most of the speakers favored the legislation, sponsored by Maryland Democrat Ben Cardin, which would also forbid law enforcement officers from using race, ethnicity or religion as a factor in routine policing decisions.

The profiling issue exploded into national consciousness earlier this year with intense media coverage of the story of the boy who came home from a convenience store with a snack for his brother only be shot dead by a volunteer neighborhood security guard.  Last week, Florida investigators concluded that George Zimmerman had "profiled" Martin as he passed through a residential neighborhood in Sanford, Fla., on Feb. 26, resulting in an altercation in which Zimmerman shot Martin. Zimmerman has been charged with second-degree murder.

The standing-room-only crowd in the Dirksen Senate Office Building demonstrated how the social media campaign to demanding "Justice for Trayvon" had revived the profiling issue in Washington. The last time Congress held hearings on anti-profiling legislation was the summer of 2001, when revelations about the profiling practices of the New Jersey and Maryland state troopers had prompted a broad-based sentiment that using race and ethnicity to make traffic stops was fundamentally wrong and unfair. Profiling is "wrong and we will end it in America," said President George W. Bush in February 2001.

Then came Sept. 11. Profiling gained legitimacy as a national security tool. The Bush administration explicitly used racial profiling to contact non-citizens from Muslim countries under the program National Security Entry-Exit Registration System (NSEERS) set up by Kris Kobach, then an attorney in the Bush Justice Department, now an immigration advis0r to Mitt Romney.  More than 82,000 people from 25 countries (24 of them predominantly Muslim) were contacted, fingerprinted and interrogated. More than 12,000 were deported. The Bush Justice Department did issue a ban on racial profiling in 2003 but the DOJ guidelines allowed the use of religion and national origin as a law enforcement criteria.

After the failure of Bush and Congress to enact comprehensive immigration reform in 2007, profiling Mexicans and Central Americans became more common. With the federal government unable to control the flow of people into the country, Arizona, Alabama and Georgia passed laws requiring police to check the status of anyone for whom there is a "reasonable suspicion" of being undocumented. "There is no way to enforce the laws 'show me your papers' provisions without engaging in stereotypes based on race and ethnicity," Anthony Romero of the ACLU told the hearing.

Yet as profiling has become entrenched in drug enforcement, counterterrorism and immigration control, said criminologist David Harris, research shows it is an ineffective law enforcement tool. "In many contexts, in many types of police agencies, the results all fall in the same direction: when racial or ethnic profiling is used, police are less likely, not more likely, to catch bad guys," Harris said.

Ron Davis, police chief in East Palo Alto, Calif., said his experience as a cop on the streets confirmed that finding. Admitting that he himself had engaged in profiling, he called profiling "an ineffective tactic that wastes scarce law enforcement resources and it harms our relations with communities whose cooperation we need."

Davis said passage of S. 1670 would help police nationwide.

"Without the legislation and updated Department of Justice guidance we will continue business as usual and only respond to this issue when it surfaces through high-profile tragedies such as Oscar Grant case in Oakland, Calif., and the Trayvon Martin case in Sanford, Fla.," he said.

But the remarks of Frank Gale, a 23-year veteran of the Denver police force and the vice president of the Fraternal Order of Police, illustrated one of the biggest obstacles facing supporters of a profiling ban: police unions.

Calling the bill "highly offensive," Gale voiced the FOP's "strong opposition" to S. 1670. The measure, he said, "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 racist."

"We can and must restore the bonds of trust between law enforcement and minorities," Gale said, but argued a profiling ban would only generate more mistrust, "because it is written with the presumption that racist tactics are common tool of our nation's police departments."

The clashing views of Davis and Gale, two veteran African-American cops, "reflects the complexity of the issue," Davis told me. For Davis, the profiling ban is simply the implementation of best practices while for Gale it is the institutionalization of second-guessing officers on the street who have to make difficult and dangerous decisions.  "We don't have to be afraid of being held accountable," Davis said.

Yet the Obama administration seems reluctant to act. Two years ago Attorney General Eric Holder told profiling critics he would  review the 2003 DOJ guidelines, and reconsider the use of religion and national origin in national security and immigration enforcement. Holder has yet to act.

Republican support for legislation supported by Muslim-Americans and  opposed by police unions seems unlikely, especially in an election year. Lindsey Graham, the only Republican in attendance, voiced general support for the bill while expressing the belief that profiling Muslims might still be necessary in national security investigations. He said he hoped for “something more bipartisan.” (Cardin's bill currently has 12 co-sponsors, all Democrats. A companion House bill has 52 co-sponsors, all Democrats.)

A true end to profiling will require cultural, as well as political, change. The resonance of the Trayvon Martin story is a sign of cultural change that enhances the legislation's prospects. But these things can take a long time in Washington. The murders of Matthew Shepard, a gay teenager in Wyoming, and James Byrd, a black man in Texas, in 1998 galvanized a movement to establish a federal hate crime law. But the Shepard-Byrd Hate Crimes Prevention Act wasn't enacted until President Obama signed it in 2009.

The time may come for Trayvon's Law but it probably won't be this year.


Correction: This original version of this article inaccurately reported where Trayvon Martin lived in the Miami area. The mistake has been corrected.

By Jefferson Morley

Jefferson Morley is a senior writing fellow and the editor and chief correspondent of the Deep State, a project of the Independent Media Institute. He has been a reporter and editor in Washington, D.C., since 1980. He spent 15 years as an editor and reporter at the Washington Post. He was a staff writer at Arms Control Today and Washington editor of Salon. He is the editor and co-founder of JFK Facts, a blog about the assassination of JFK. His latest book is The Ghost: The Secret Life of CIA Spymaster, James Jesus Angleton.

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