parolees, we could engage in enforcement activities that would further the disparate incarceration rate of young men of color, or we could do something different. we chose to use problem solving, we chose to strengthen our relationships. we chose not to engage in racial profiling. we started a parole re-entry program, the first in california, in which we actually were contracted by the department of corrections to provide re-entry services. police officers now were part of treatments. we provide cognitive life squils, 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 it was in 2005. our incarceration rates have dropped and i'm very confident in saying we have better police and community relations. i think 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 am here to reinforce that is a very ineffective policing practice. it is slopping, it is counting on guesswork. i think the notion that we as a community or we as a nation must use racial profiling to make ourself secure or sacrifice civil liberties is not only false, it reeks of hypocrisy. if we were truly worried about national security in the sense of compromising civil liberties, it would make sense that we would also ask or those who are engaging in profiling would also ask for the prohibition of firearms. we lose 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 is not this equal call for gun laws. i'm not offering there should be, but i'm offering the compromise of civil rights for national security does not work. what is equally troubling with the idea of using race, national origin, or religion in a

national security context, that suggests the most powerful nation in the world, a nation that is equipped with law enforcement and national security experts that are 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, that there is no reason to profile on the basis of race, religion, national origin, or ethnicity. lastly and importantly, 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 the father of three, but i have a 14-year-old boy named glen. and even though i'm a police chief with over 27 years experience, i know that when i teach my son, glen, 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,

for your leadership. and it was, as much as i wanted to be here today and as much as i was honored to be here 10 years ago or 12 years ago, i truly hope there is no need for me to come back in another 10 years. thank you. >> thank you, chief davis. >> since september 7th, 2001, anthony romero has been executive director of the nation's oldest and largest civil liberties organization, with more than 500,000 members. he's 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 in the age of terror. he graduated from stanford university law school and princeton university's woodrow wilson university of policy and international affairs. mr. romero, please proceed. >> good morning, senator durbin and ranking member graham. thank you for having me this morning. senator franken, senator bloomenthal. i'm delighted to testify in front of you today. i'm the national director of the american civil liberties union. we are a nonpartisan organization with over a half a

billion members, hundreds of thousands of additional activists and supporters, and 53 state offices nationwide dedicated to the principles of equality and justice set forth in the u.s. constitution, and in our laws projecting individual rights. for decades, the aclu has been at the forefront of the fight against all forms of racial profiling. racial profiling is policing based on crass 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 ineffective, it is also unconstitutional and it violates basic norms of human rights, both at home and abroad. my 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, race, religion, national origin, and first amendment protected national activities. such 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 universities. when we tolerate this type of racial profiling in the guise of promoting national security, we jep die public safety and undermine the basic ideals set forth in our constitution. in the context of routine law enforcement, policing based 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 yet do not 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 deserve equal protection under the law. in the context of immigration, racial profiling is exploding. state intrusion to federal immigration authority has created a legal regiment in which people are stopped based under a race and ethnicity inquiry into their immigration status. additionally, congress must defund the department of homeland security 287(g) in secure committee programs, which promote racial profiling by turning state and local law enforcement agents 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 path the end racial profiling act, which would prohibit racial profiling once and for all. and we should urge the administration to strength the department of justice guidance we using the use of race to address profiling by religion and national origin, and to close loopholes for the border and national security. in america 2012 and beyond, policing based on stereotypes must not be a part of our national landscape. law enforcement officers must base their decisions on facts and evidence. otherwise, america's rights and liberties are unnecessarily discarded and individuals are left to deal with the 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 would also like to thank you, chairman durbin, in particular, for your willingness to partner with our illinois office, to address the issue of profiling and i look forward to working with you in the years ahead. >> thank you, mr. romero. frank gale is national second vice president and colorado state president of the fraternal order of police. he served for 23 years in the denver county sheriff's department, where he had responsibility for the courts and jails. captain gale is currently the commander of the training academy and the public information officer. he has received numerous awards and decorations from the fraternal order of police and the denver's sheriff department. captain gale, it's an honor to have you today and please proceed. >> good morning, mr. chairman. my name is frank gale, i'm a 23-year veteran of the denver county sheriff's department and currently hold the rank of captain. i am the national second vice president of the fraternal order of police, which is 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 s-1670, the end racial profiling act. i want to begin by saying that it is clear that racism is morally and ethically wrong, and that 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 that 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 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, and to be effective as a law enforcement officer, it is necessary to be color blind as you make determinations about criminal conduct or suspicious activity. there is the mistaken 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 to repair the bonds of trust and mutual respect between law enforcement and minority communities. in fact, i believe it will make it more difficult because it lends the appearance that all cops are racist and that we are engaged in a tactic that has no other purpose than to violate the rights of citizens. that notion or belief is inhibitive of building trust and respect and can result in a base belief by the community that law enforcement officers should not be trusted or respected. this bill does not propose 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 protection of the laws at all times. if law enforcement adopts a policy, employs a practice, or in a given situation steps -- takes steps to initiate an investigation of a citizen based solely upon the citizen's race without more, then a violation of the equal protection clause has occurred. the united states constitution itself prohibits racial profiling, and yet here we have a bill that proposes to prohibit it. the very 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, and thus it ends up prohibiting officers from the investigation of routine action, aimed at

determining the involvement in a crime or criminal activity. the bill purports to allow exceptions to these prohibitions when there is a race description provided by a trustworthy eyewitness or other evidence of a specific suspect's race or ethnicity, but in real life, this is not practical. in the practice of routine investigatory action, law enforcement officers receive and investigate information through a wide range of activities and methods that are designed to identify suspects, 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 already 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 issues, collect racial and other socialical data in accordance with the

regulation, and establish a 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 if you cannot afford new documentation of racial profiling issues. how can we achieve a color-blind 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. and 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 many citizens and lawmakers are concerned with protecting their personal information, be it concerns about the real i.d. act, voter identification laws, or cybercrime, it seems at variance

with common sense and sound public policy to ask yet 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 that are most hurt by crime and violence. this bill, however, is not the solution. it will make matters worse, not better. for these reasons, the paternal 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 klieg is the next witness, he's held a number of senior positions in the justice department during the reagan and george h.w. bush administrations, including deputy assistant attorney general in the civil rights division and deputy assistant attorney general in the environment natural resources division, acting assistant attorney general in the office of legal policy. he's a graduate of yale university law school. thank you for being here, mr. klieg. please proceed. [ inaudible ] >> if you would turn your microphone on, it's in that box in front of you there. >> 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 the basis of 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 many of my co-panelists here are giving. there's 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 doing that. i think it should be done as little as possible, but the stakes are so high that i'm not willing to rule it out, altogether. 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, you know, 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 panelist's testimony, i'll just say briefly that, you know, 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, 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 tempting 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 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. >> thank you, mr. clegg. david harris is a dwisht faculty scholar and 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, the case for preventive policing." like congressman conyers and chief davis, professor harris appeared at both of the previous senate 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 against 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. instead, racial profiling, ethnic profiling, religious profiling all make our police and security personnel less effective and less accurate in doing their very difficult jobs. i would define racial profiling as the use of racial, ethnic, religious, national origin or other physical characteristics of appearance as one factor, not the sole factor, but one factor, among others, used to decide who to stop, question, frisk, search or take other routine law enforcement action. this is very close if you look at it to the definition of the profiling guidance of the justice department. and i would note that it does not include actions based upon description, description of a known suspect, a person who has been seen by a witness. that is not profiling. that is good police work. all of profiling falls on the

same set of data, data from across the country, different law enforcement agencies, different missions. and it's all about hit rates. when we talk about effectiveness, what we're asking is what is the rate at which police officers and security officers succeed or hit when they use race, ethnic appearance, religious appearance as opposed to when they do not? and the evidence, the data on this question, is unequivocal. it comes from all over the country. when police use race or ethnic appearance or religious appearance this way, they do not become more accurate. in fact, they don't even stay as accurate. they become less accurate than police officers and security agents who do not use these practices. in other words, racial profiling gets us fewer bad guys. why is this? a lot of people find this counterintuitive. there are two big reasons.

number one, profiling is the opposite of what we need to do in order to address as yet unknown crimes by as yet unknown suspects. that is addressed most effectively through observation, careful observation of behavior. and when you introduce race, even as just one factor into the mix, what happens is the observation of behavior becomes less accurate measurably so, and police officers' efforts are damaged and wasted. s second, using profiling affects our ability to gather crucial intelligence and information from communities on the ground. and this is true, whatever the context is in which profiling is used. particularly in a national security context, this is absolutely critical. if we are in danger, if there is a threat from international

terrorists, and if, as some say those international terrorists may be hiding in communities of arab-americans and muslims, the people we need right now as our partners like we have never needed other partners, are people in those arab-american and muslim communities. and i want to say that those communities have been strong, effective, continuously helpful partners to law enforcement in case after case across the country. these communities have helped. but if we put the target of profiling on these whole communities, we will damage our ability to collect intelligence from them because fear will replace trust. in response to some of the comments made by my fellow panelists, a bill like s-1670 which deserves support is not insulting to law enforcement. it's all about accountability. and everybody who is in law

enforcement or any other pursuit needs accountability just like i do as a professor, just like everybody else does. racial identification is not an issue. you will not have police officers asking people what their race or ethnic group is. in fact, that's not what we would want at all because it's all about the perception of the officer. that's all that would have to be recorded. and black street crime is not the issue, respectfully, i have to disagree. the issue is how we deploy our law enforcement officers in ways that are effective, fair and carry out the most important ideals of our society. so for those reasons, i would support any efforts to pass s-1670, the end racial profiling act, and to revise the department of justice's profiling guidance. i thank you very much for the opportunity to talk to you, and i look forward to the committee's questions. thank you. >> thank you very much, professor harris. chief davis, you spent your

lifetime in law enforcement, and you've heard the testimony of officer gale that suggested in various strong and pointed language that raising this question, racial profiling, really -- he says unless you believe police are racist, he suggests this is unnecessary. so what is your answer to this? i mean, as i said at the outset, you trust, we trust these men in uniform, women as well, who risk their lives every day for us. and the question he's raised is if we cannot trust their judgment and assume that they are going to violate the constitution and the law, then we are suspicious of them when we should be more trusting. >> thank you, mr. chairman, for the question. i completely disagree with my colleague. the idea that a police officer or police department should not be held accountable is counter to the idea of democracy. if any group should be held accountable, it must be the police. we have awesome power and responsibility.

the power to take life and the power to take freedom. the idea that we could not collect data to ensure that that power is used judiciously and prudently would be counter to sound managerial principles. we collect data every day. we collect data on crime. we collect data for budget purposes. we collect data for our very justification and existence. we use it to tell you that you need to increase budgets to the state. we use crime to justify why we deploy resources. the idea of using data means that you're using intelligence. intelligence-led policing prevents the need to do guesswork or bias-based policing. and so where i do appreciate the notion that we should respect law enforcement, as a law enforcement officer, i think there is no more noble profession, but the idea that i'm exempt from the constitution or exempt to accountability is counter to why i got into the job. i don't think it's insulting. i think what is insulting is to allow police officers to come