before you take your seats, i'll wait until everyone's in place and ask you to please stand to be sworn. we have everyone here. yes, i think we do. ask the witnesses to please raise their right hand. do you affirm the testimony you're about to give before the committee will be the truth, the whole truth, nothing but the truth, so help you god? >> i do. >> thank you very much. let the record reflect that the witnesses all answered in the affirmative. the first witness is ronald davis. chief of police for the city of east palo alto, california, since 2005. before that, 19 years with the oakland police department where

he rose to the rank of captain. chief davis served ond federal monitoring teams overseeing police reform consent decrees between the u.s. department of justice, waurktsshington, d.c. detroit. among other publications he's co-authored "the justice department monograph, how to correctly collect and analyze racial profiling data, your reputation depends on it." he has a bachelor's of science degree from southern illinois university in carbondale. he testified at both the previous senate hearings of racial profiling and sorry it's been so long since we've resumed this conversation. but it's an honor to have you return a few years later to bring us up to date. at this point, chief davis, the floor is yours for five minutes. >> thank you, mr. chairman. good morning, mr. chairman, and distinguished subcommittee members. i am ronald davis, currently chief of police for the city of east palo alto, california. i am humbled to provide testimony at today's hearing, as mentioned i did have the honor testifying at last senate hearings on racial profiling in

2001. when asked to come before the committee today, the first thought that came to my mind was actually a question. what has changed since my testimony in 2001 when president bush then stated racial profiling is wrong, we will end it in america? my testimony today is based on three diverse perspectives. first, as a racial profiling police reform expert, second, as a police executive with over 27 years' experience, working in two of the greatest and diverse communities in the nation, oakland and east palo alto, and third, as a black man and a father of a teenage boy of color. first, as an expert, i think it it's fair to say law enforcement has made progress, albeit limited in addressing the issue of racial profiling and bias based policing. over the past ten years, the department of justice civil rights division, through its pattern and practice investigations has worked with law enforcement agencies nationwide to provide guidance on racial profiling policies and promote industry best practices. most recently, the cops office

and partnership with the national network for safe communities is working on issues of racial reconciliation and communities to strengthen relationships and reduce crime and violence in those communities. today there are few police agencies in the united states that do not have some type of policy prohibiting racial profiling and bias based policing. this progress is undermined by two focal points. first, there exists no national standard definition for racial profiling that prohibits use of race, national origin or religion except when describing a person. many state and local policies define racial profiling as using race as the sole basis for a stop or any police action. unfortunately this policy is misleading and suggests use race as a factor for anything other than a description is justified, which it is not. simply put, mr. chairman, race is a descriptor, not a predictor. to use race when describing someone who just committed a crime is appropriate. however, when we deem a person to be suspicious or attach

criminality to a person because of the color of their skin, the neighborhood they are walking in or the clothing they are wearing, we are attempting to predict criminality. the problem is that we are seldom right in our results, and always wrong in our approach. the same holds true within immigration context as well because a person looks latino or mexican does not mean the person is undocumented. it should not mean they are stauc stopped or asked for their papers. yet, according to reach laws in alabama and arizona, the police are not just encouraged to make these discriminatory stops, they are expected to do so. most police chiefs agree engaging in these activities make our communities less safe. this is one reason why i joined the major police chiefs association and 17 current and former law enforcement executives in filing a brief challenging the arizona law. we need to pass the end racial profiling act of 2011. this legislation puts forth a standard definition for racial profiling. it requires evidence based training to curtail the practice and provide support and developing scientific-based data

collection and analysis. we need the justice department to revise its guidance regarding the use of race by federal law enforcement agencies. this will close as mentioned in the previous testimony's loopholes that could permit unlawful and ineffective profiling. it makes no sense to exclude religion and national origin from prohibition from profiling or to treat terrorism or immigration enforcement from other law enforcement efforts. i fear that without the legislation, we will continue business as usual. and only respond to issues when they surface through high profile tragedies such as the oscar grant case in oakland and the trayvon martin case in florida. the second factor that undermines our progress is the dire need for us to reform the entire criminal justice system. the last top to bottom review of our system was conducted in 1967, through the president's commission on law enforcement, administration of justice. we must now examine the entire system through a new prism that protects against inequities such as racial profiling.

disparate incarceration rates and disparate incarceration laws. i strongly encourage the passage of the national criminal justice commission act of 2011. mr. chairman, from my perspective as a police executive with 27 years, i know fist hand how ineffective racial profiling is. as an example, in east palo alto, my community, we are more than 95% of color. 60% latino, approximately 30% african-american, and a growing asian and pacific islander community. in 2005, the city experienced unfortunately the second highest murder per capita rate in california and the fifth highest in the united states. in january 2006, with the six months serving as chief of police, east palo alto officer richard may shot and killed on line of duty by a parolee three months out of prison. with this crime rate and this violence against the police officer, my community had two distinct choices. we could either declare war on parolees, we could engage in enforcement activities that

would further the disparate incarceration of young men of color or do something different. we chose to strengthen our relationships. we chose not engage in racial profiling. we starred a parolee department, provide re-entry services. police officers now are part of treatment. we provide cognitive life skills. we provide drug awareness and treatment programs and together we were able to reduce the recidivism rate from over 60% to under 20%. after five years the murder rate in 2011 was 47% lower than 2005. our incarceration rates have dropped and i am very confident in saying we have better police and community relations. for me and my community we recognize that racial profiling, that the focus on people of color especially young men are more likely to occur when law enforcement uses race to start guessing. i'm here to really reinforce

that is an ineffective police practice. it is sloppy, it is counting on guesswork. the notion that we as a community or we as a nation must use racial profiling to make ourselves secure or sacrifice civil liberties is not only false, it wreaks of hypocrisy. if we were worried about national security in the sense of compromising civil liberties it would make sense, those engaging in racial profiling, would ask for the prohibition of firearms. we have lost over 100,000 americans to gun violence since 9/11. that is more than we have lost in terrorism and the wars in afghanistan and iraq combined, yet there's not an equal call for gun laws. i'm not suggesting there should be, i'm offering the idea of compromising civil rights for national security does not work. what is equally troubling with the idea of using race, national origin and religion and the

national security context, it suggests that the most powerful nation in the world, equipped with law enforcement and national security experts second to none, must rely on bias and guesswork to make ourselves secure versus human intelligence, technology, experience and the cooperation of the american people. i want to strongly emphasize this point, senator, there is no reason to profile on the basis of race, religion, national origin or ethnicity. lastly, my last perspective is as a black man in america. i am still subject to increased scrutiny from the community, from my own profession and from my country because of the color of my skin. as i mentioned earlier, i'm a father of three, but i have a 14-year-old boy named glenn. and even though i'm a police chief with over 27 years of experience, i know that when i teach my son glenn how to drive, i must also teach him what to do when stopped by the police. a mandatory course by the way for young men of color in this country. as i end my testimony today i want to thank you, mr. chairman, and the rest of the senators for your leadership. as much as i was honored to be

here today, 10 years ago, 12 years ago, i hope there is no need for me to come back in another ten years. thank you. >> thank you, chief davis. since september 7, 2001, anthony romero has been executive director of the american civil liberties union. the large effort civil liberties organization with over 500 members. he was the first latino and openly gay man to serve in that position. he co-authored "in defense of our america the fight for civil liberties and the age of terror." he graduated from stanford university law school and princeton university's woodrow wilson school of policy and international affairs. mr. romero, please proceed. >> good morning senator durbin and ranking member graham, senator franken, senator blumenthal. i'm delighted to testify before you today. i am the national director of the american civil liberties union. we are a nonpartisan organization with over half a million members and hundreds of thousands of additional activists and supporters.

in 53 state offices nationwide dedicated to the principles of a quality and justice set forth of the u.s. constitution and in our laws protecting individual rights. for decades, the aclu has been at the forefront at the fight against all forms of racial profiling. racial profiling is policing based on kras stereotypes instead of facts, evidence and good police work. racial profiling fuels fear and mistrust between law enforcement and the very communities they are supposed to protect. racial profiling is not only in effective, it is unconstitutional and violates basic norms of human rights, both at home and abroad. my written testimony lays out how race, religion, national origin, are used as proxies for suspicion in three key areas of national security, of routine law enforcement and immigration. in the context of national

security, recently released fbi documents demonstrate how the fbi targets innocent americans based on race, ethnicity, religion, national origin and first amendment protected political activities. some counterproductive fbi practices waste law enforcement resources, damage essential relationships with those communities and encourage racial profiling at the state and local level. in my native new york, the new york police department has targeted muslim new yorkers for intrusive surveillance without any suspicion of criminal activity. according to a series of associated press articles, the new york police department dispatched undercover police officers into muslim communities to monitor daily life in bookstores, cafes, nightclubs and even infiltrated muslim student organizations in colleges and universities such as columbia and yale university.

when we tolerate this type of racial profiling and the guise of promoting national security, we jep ardize public safety and compromise the basic things set forth in our constitution. policing base on stereotypes remains an entrenched practice in routine law enforcement across the country. the tragic story of trayvon martin has garnered national attention and raised important questions about the role of race in the criminal justice system. while we don't yet know how this heartbreaking story will end, we do know that stereotypes played a role in this tragedy and yet they have no place in law enforcement. racial profiling undermines the trust and mutual respect between police and the communities they are there to protect, which is critical to keeping communities safe. additionally, profiling deepens racial divisions in america and conveys a larger message that

some citizens do not serve equal protection under the law. in the context of immigration, racial profiling is exploding. state intrusion to federal immigration authority has created a legal regimen in which people are stopped based on race and ethnicity for inquiry into their immigration status. the department of justice needs to continue to expand response to these state laws using robust civil rights protections. additionally, congress must defund the department of homeland security 287-g in security community programs which promote racial profiling by turning state and local law enforcement officials into immigration agents. when police officers not trained in immigration law are asked to enforce the nation's immigration laws, they routinely resort to racial stereotypes about who looks or sounds foreign. but you can't tell by looking or listening to someone about whether or not they're in the

u.s. lawfully. in order to achieve comprehensive reform, congress needs to provide law enforcement with the tools needed to engage in effective policing. we need to pass the end racial profiling act which would prohibit racial profiling once and for all. and we should urge the administration to strengthen the department of justice guidance using the use of race by federal law enforcement agencies to address profiling by religion and national origin and to close loopholes for the border and national security. in america in 2012 and beyond, policing based on stereotypes must not we a part of our national landscape. law enforcement officers must base their decisions on facts in evidence, otherwise, america's rights and liberties are unnecessarily discarded and individuals are left to deal with lifelong circumstances of such intrusion. on behalf of the aclu, i wish to thank each of you for your leadership on this critical issue. i also would like to thank you,

chairman durbin in particular to partner with our illinois office to address the issue of profiling. i look forward to working with you in the years ahead. >> thanks, mr. romero. frank gale served for 23 years in the denver county sheriff's department where he had responsibility for the courts and jail. captain gale is currently the commander of the training academy in the community relations unit and the public information officer. he has received numerous awards and declarations from the fraternal order of police and denver sheriff's department. captain gale, it's an honor to have you here today. please proceed. >> thank you. good morning, mr. chairman, and distinguished members of the senate subcommittee on constitution civil rights and human rights. my name is frank gale. i'm a 23-year veteran in the denver police department and currently hold the rank of captain. i am the national second vice president for the fraternal order of police, the largest law enforcement labor organization in the country, representing more than 330,000 rank and file law enforcement officers in

every region of the country. i'm here this morning to discuss our strong opposition to end racial profiling act. i want to begin by saying that it is clear racism is morally and ethically wrong. and law enforcement is not only wrong but serves no valid purpose. it is wrong to think a person a criminal because of the color of their skin. but it is equally wrong to think a person is a racist because they wear a uniform and a badge. this bill 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 patently racist and their universal training is based in practicing racism. this notion makes no sense. especially to anyone who truly understands the challenges we face protecting the communities we serve. criminals come in all shapes, colors and sizes. to be effective as a law enforcement officer, it is necessary to be colorblind as you make determinations about criminal conduct or suspicious activity. there is the mistake and perception on the part of some that the ugliness of racism is

part of the culture of law enforcement. i'm here today not only to challenge this perception, but to refute it entirely. we can and must restore the bonds of trust between law enforcement and the minority community. to do so would require substantial effort to find real solutions. restoring this trust is critically important because minority citizens often suffer more as victims of crime, especially violent crime. i do not believe that s-1670 will help repain the bonds of trust and mutual respect between law enforcement and minority communities. in fact, i think it will make it more difficult because it lends the suggestion that all cops are racist and that we engage in a tactic that has no purpose but to violate the rielts of citizens. that can result in a base belief by the community that law enforcement officers should not be trusted or respected. this bill proposes to prohibit racial profiling which it defines very broadly and is not a legitimate police practice employed by any law enforcement agency in the united states that

i know of. in rand versus the united states, the supreme court made it very clear that the constitution prohibits selective enforcement of the law based on consideration such as race. further, as one court of appeals has explained, citizens are entitled to equal protections of the law at all time. if law enforcement a2k5u79 -- adopts a policy, implies a practice or in a given situation takes steps gans citizen solely based on the citizens race without more then a violation of the equal protection clause has occurred. the united states constitution prohibits racial profiling. yet here we have a bill that proposes to prohibit it. the premise of the bill seems at odds with common sense and current law. the bill does not prohibit racial profiling as the definition of racial profiling and the bill is far too broad. it prohibits officers from the exercise of legitimate routine investigatory action aimed at determining vovlt in a crime or criminal activity.

the bill purports to allow exceptions to these prohibits when there is evidence of a specific suspect's race or ethnicity, but in real life this is not practical. and the practice of routine prevent crime or lead to an arrest. this bill would ban many of these types of methods, therefore, a whole range of legitimate law enforcement methods would be prohibited beyond the unconstitutional purely race-based activity. the legislation also threatens to penalize local and state. law enforcement agencies by withholding federal law enforcement funding unless these agencies comply with the requirements of the bill to provide all officers training on racial profiling officers. collect racial and other sociological data in accordance with federal

regulation and establish an administrative complaint procedure or independent audit program to ensure an appropriate response to allegations of racial profiling. the fop has testified before you about the dire and dangerous consequences of budget cutbacks for law enforcement in the past. how can we fight the battle if we also propose to deny these funds to agencies that need them because they cannot afford new training or new personnel to document allegations of racial profiling issues? how can we achieve a colorblind society if the policies of the federal law require the detailed recording of race when it comes to something as common as a traffic stop. what if the officer is unable to determine the driver's race? will police officers now be required to ask for driver's license, registration and proof of ethnicity, please? at a time when citizens are concerned about protecting their identification, it seems at variance with common sense and sound public policy to ask

another representative of the government, in this case a law enforcement officer, to collect racial or other personal data and turn that data over to the federal government for analysis? why would something as simple and routine as a traffic stop require such an extraordinary imposition on a driver? i submit to the subcommittee that we do have a problem in our nation today. the lack of trust and respect for our police officers, police officers have a problem in that they have lost the trust and respect and cooperation of the minority community. this is tragic. because as we have already discussed, it is minorities in our country most hurt by crime and violence. this bill, however, is not the solution. it will make matters worse, not better. for these reasons, the fraternal order of police strongly opposes the bill and i urge this subcommittee to reject it. mr. chairman, i want to thank you for the opportunity to appear before the subcommittee. >> thank you very much, officer gale, for being here. roger claig is the next witness,

member of the council of equal opportunity. he's held a number of senior positions including deputy assistant attorney general and deputy assistant attorney in the civil rights division and deputy assistant attorney general in the resource division and acting as attorney general in the office of legal policy. he is a graduate of the yale university law school. thank you for being here mr. clegg, please proceed. if you would, turn your microphone on. it's in that box in front of you. >> thank you very much, senator durbin, for inviting me here today. i'm delighted to be here. let me just summarize briefly my written statement. the first point i make is that care has to be taken in defining the term "racial profiling." and in particular, i think that it's important to bear in mind that racial profiling is disparate treatment on the basis of race. good police activities that

happen to have a disparate impact on race are not racial profiling. the second point i make is that the amount of racial profiling that occurs is frequently exaggerated and that care needs to be taken in analyzing the data in this area. all that said, racial profiling, as i define it, is a bad policy. and i oppose it for the reasons that a many of my co-panelists here are giving. there is one possible exception that i would make, and that is in the anti-terrorism context. in brief, i think that it is quite plausible to me that in the war on terror where we are fighting an enemy that has a particular geopolitical and perverted religious agenda, that it may make sense in some circumstances to look at

organizations that have particular religious and geopolitical ties. i'm not happy about that. i think it should be done as little as possible. but the stakes are so high that i am not willing to rule it out all together. the last point i would make is that there are problems with trying to legislate in this area in general. and i think that the end racial profiling act in particular is very problematic. i don't think that this is an easy area for congress to legislate a one-size-fits-all policy that's going to apply to all law enforcement agencies at all levels of government at all times in all kinds of investigations. and i think it's also a bad idea to encourage heavy judicial involvement in this area. and these are things that the end racial profiling act does. let me also say that i think

that chief gale does a very good job of identifying some additional costs in the end racial profiling act, the fact that it is insulting, the data collection is time consuming, and that inevitably, we're going to either have to guess on -- inaccurately, on people's racial and ethnic background or else train the police on how to identify people racially, which is a pretty creepy enterprise. with respect to my other panelists' testimony, i would say briefly in the terrorism and border security context, as i read some of this testimony, they would equate racial profiling with taking a particular look at visitors from particular countries, at considering immigration and citizenship status and at considering language. i don't consider any of those things to be racial profiling.

let me make one last point. i think that this is an important point to make whenever we're talking about racial disparities. as i said, mr. chairman, i am opposed to profiling, particularly to profiling in the traditional law enforcement context where frequently it is african-americans who are the victims of that profiling. i'm against that. nonetheless, i think we have to recognize that it's going to be attempting for the police and individuals to profile, so long as a disproportionate amount of street crime is committed by african-americans and there will be a disproportionate amount of street crime committed by african-americans for so long as more than seven out of ten african-americans are being born out of wedlock.

i know this is not a popular thing to say, but i think whenever we are discussing racial disparities in the united states, that is the elephant in the room and it has to be addressed. so ultimately, people like me and everyone else, i think in this audience, who don't like racial profiling is going to have to face up to this problem. >> i would ask those in attendance here to please maintain order. >> thank you, mr. chairman. i think i'm at the end of my five minutes, anyway. >> you this, mr. clegg. david harris, associate dean for research at the university of pittsburgh law school. he's one of the nation's leading scholars on racial profiling. author of the book in 2000 "profiles in injustice," why "racial profiling cannot work." and in 2005, "good cops, kay case point of view for preventive policing." professor harris appeared at both of the previous senator hearings on racial profiling. so welcome back. >> thank you very much, senator durbin, members of the subcommittee. i'm grateful for the chance to talk to you today.

senator durbin's statement opened by recalling for us president bush's promise that racial profiling, quote, is wrong and we will end it in america. sad to say that that promise remains as yet unfulfilled. instead, we have a continuation of profiling as it existed then with a new overlapping second wave of profiling in the wake of september 11th, as other witnesses have described. directed mostly at arab americans and muslims. now we have a third overlapping wave of profiling, this one with undocumented immigrants. but the context and the mission of whatever these law enforcement actions are does not change the fundamentals. the fundamentals are these. racial profiling does not work to create greater safety or security.