Justice Department's new racial profiling policy should go further, some say

The Justice Department released new federal guidelines Monday on racial profiling. The ban now goes beyond race and ethnicity, but does not cover local law enforcement in most cases. 

Manuel Balce Ceneta/AP
Protestors stage a 'die-in' outside the Justice Department in Washington, Dec. 8, lying on the sidewalk.

The Department of Justice released a long-awaited new policy on racial profiling Monday. Here’s how the guidelines have changed:  

• They ban profiling in federal law enforcement not just on race and ethnicity, but also on national origin, religion, gender, sexual orientation, and gender identity.

• For the first time, they ban racial profiling in national security cases.

• Local police departments are covered while they participate in federal law enforcement task forces.

Otherwise, local law enforcement isn’t covered – a source of criticism, following high-profile cases in recent months involving alleged profiling of suspects by police.

The guidelines also exempt the Transportation Security Administration (TSA) at the border and at airports, and the US Customs and Border Protection both at and in the “vicinity” of the border. So in effect, the guidelines do not “fully bar biased profiling in the national security context,” the American Civil Liberties Union (ACLU) said in a statement.

Attorney General Eric Holder made the case for the new guidelines at an event Monday in northern Virginia.

"We can't afford to profile, to do law enforcement on the basis of stereotypes," Mr. Holder said.

Also on Monday, Holder was to brief local law enforcement officials via a conference call and encourage them to follow the guidelines. On Tuesday, he will deliver the same message in a speech in Memphis, Tenn.

"Particularly in light of recent incidents we've seen at the local level – and the concerns about trust in the criminal justice process which so many have raised throughout the nation – it's imperative that we take every possible action to institute sound, fair and strong policing practices," Holder said in a statement.

The policy also states that in routine law enforcement decisions, officers may not profile based on race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity – “unless listed characteristics apply to a suspect description.”

The Justice Department has been working on the new guidelines since 2009, and Holder has pushed to get them finished before he steps down as attorney general. President Obama’s nominee to succeed Holder, Loretta Lynch, still faces a confirmation hearing in the Senate, expected in January.

The ACLU and other civil liberties groups applauded the new guidelines as a step in the right direction, but said they don’t go far enough.

“At this historic moment in our nation’s race relations, the release of this revised guidance is an important signal of progress, but it does not completely address the need for reform of policing tactics at the state and local level,” says ACLU Washington Legislative Office director Laura Murphy.

Another group, the Leadership Conference on Civil and Human Rights, criticized the Justice Department for not banning what the group calls “the offensive practice of ‘mapping’ American communities based on stereotypes.” The group also asserted that the new guidelines do not appear to curtail the Federal Bureau of Investigation’s authority to engage in “unlawful and abusive surveillance of innocent Americans.”

The new guidelines are an updated version of those released in 2003 under Attorney General John Ashcroft, during the administration of President George W. Bush, in the wake of the 9/11 attacks.

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