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How S. 1670 defines racial profiling, and why it's complicated

Photo by No Borders and Binaries/Flickr (Creative Commons)

During what's been billed as a landmark Senate hearing tomorrow, lawmakers will address racial profiling in different forms, from the profiling of Latinos under state anti-illegal immigration laws to the police profiling of black men, as well as the racial profiling that has affected Muslims, Arab Americans and others in the U.S. during a decade of counter-terrorism activity since 9/11.

A highlight of the hearing will be a bill called the End Racial Profiling Act, which has come and gone since 2001 without passage and was most recently reintroduced last year. Its principal aim is to curb profiling by law enforcement, establishing a definition for what racial profiling is, prohibiting it, and establishing a set of policies and checks and balances to prevent it.

From the bill, also known as S. 1670, the definition:

RACIAL PROFILING - The term ‘racial profiling’ means the practice of a law enforcement agent or agency relying, to any degree, on race, ethnicity, national origin, or religion in selecting which individual to subject to routine or spontaneous investigatory activities or in deciding upon the scope and substance of law enforcement activity following the initial investigatory procedure, except when there is trustworthy information, relevant to the locality and timeframe, that links a person of a particular race, ethnicity, national origin, or religion to an identified criminal incident or scheme.

Profiling allegations have long been a thorn in the side of law enforcement agencies, including the Los Angeles Police Department, which recently concluded after an internal probe that a white officer, Patrick Smith, had profiled Latino drivers. The profiling admission was a first for the agency, whose leadership had long dismissed the idea that there could be a department-wide problem in spite of a long string of complaints. But pinpointing profiling can be complicated. From a recent Los Angeles Times story on the investigation:
Whether perception or reality, about 250 formal allegations are brought against officers each year. The fact that all the allegations, until Smith, were cleared was due to the murky nature of the allegation, police officials have said. Because profiling cases hinge on what officers are thinking in the moment they make a stop, it was all but impossible to determine whether they were motivated by a racial bias unless they confess, officials said.

In a recent Q&A about racial profiling in the shooting death of Trayvon Martin, a black 17-year-old boy killed in Florida last February by a neighborhood watch volunteer, Tampa Bay Times media critic and former Poynter Institute media ethics fellow Eric Deggans addressed a more complex aspect of that "murky nature," that being the subtle nature of prejudice. From the interview:
M-A: You wrote recently in your column of “a very simplistic understanding of racism.” You wrote: “We still, too often, act like racism is a switch — either you’re Archie Bunker or David Duke and acting as a clear cut white supremacist, or you’re not. But that’s not how I think it works.” How does this work?

Deggans: If you are alleging that some racial predujices affect a situation, you are immediately accusing someone of being a bigot. The first thing they say is that they are not a bigot, that no racial thing happened.

The problem is that prejudice is very seductive, and people who are not bigots embrace prejudice. You don’t have to be walking around like Archie Bunker to be suspicious of black males walking around your neighborhood. You don’t have to be a white supremacist to indulge racism.

It's going to be an interesting hearing. The text of the profiling bill can be read here.