Necessary Roughness

Senate Bill 2138, submitted on December 16, 2005, by Senator Feingold (D-WI) and 12 cosigners, may likely get another look due to the publicity generated from imams who were left off of a plane for strange behavior, predicts (link dead) Katherine Kersten of the Minneapolis-St. Paul Star Tribune. The aim of the bill, simply enough, is to ban racial profiling by law enforcement agents and agencies. The bill would disqualify “covered” law enforcement agencies discovered to profile from receiving federal grants.

A State, local government, or law enforcement agency would be required within 12 months to either establish a complaint procedure or an independent auditor program. The independent auditor is interesting because it by requirement is not sworn to serve the public interest.

It will instead receive federal funds and serve its own interest.

$5,000,000 would be authorized to collect data from five police departments, and another half million would go to an institution of higher education to analyze the results. The data collected includes race, ethnicity, national origin, and religion.

There is no limit to the amount of funds that can be granted by the Attorney General to develop best practices in the elimination of racial profiling. The key phrase in Section 306 is “sums as are necessary.”

The Attorney General has six months to issue regulations concerning the collection of this data. This is done with guidance from “Federal, State, and local law enforcement agencies and community, professional, research, and civil rights organizations.” That’s a lot of input. The AG may need more than six months.

The data collected for each complaint of racial profiling includes “race, ethnicity, national origin, gender, and religion, as perceived by the law enforcement officer.” Standardized forms will be created. The data will be held for no less than 4 years.

Section 401(b)(7) has the possibility of unintended consequences. It reads:

(The Bureau of Justice Statistics shall–)

(A) analyze the data for any statistically significant disparities, including–

(i) disparities in the percentage of drivers or pedestrians stopped relative to the proportion of the population passing through the neighborhood;
(ii) disparities in the percentage of false stops relative to the percentage of drivers or pedestrians stopped; and
(iii) disparities in the frequency of searches performed on minority drivers and the frequency of searches performed on non-minority drivers; and

(B) not later than 3 years after the date of enactment of this Act, and annually thereafter, prepare a report regarding the findings of the analysis conducted under subparagraph (A) and provide the report to Congress and make the report available to the public, including on a website of the Department of Justice.

Picture yourself as a law enforcement officer. You don’t want to be labeled a racist just because the number of people you stop is statistically significantly different than population statistics. The easiest way to comply with this data is for you to keep your own statistics and report a race that keeps you within the norm. It doesn’t matter what race they really are, just what you perceive them to be. Pull over Tiger Woods, and you can report him as black or Asian, whichever is better for your stats.

Even worse, if you keep your own stats, you can decide whether or not to search a driver’s car. If your stats are out of line, you may not want to search the car of a particular race/religion. Ironically, that is racial profiling.

Finally, there are provisions for Attorney General reports.

The ERPA spends your money, is adversarial to law enforcement, and may foster consequences contrary to the intent of this bill. It is unclear how this bill would have treated the “flying imams” case, since most of the data analyzed pertains to police departments. Maybe they’ll amend it and spend even more money measuring the airports.