Cardin joins rights groups seeking new racial profiling guidance

Sen. Ben Cardin has joined a coalition of civil rights groups in pressing the Obama administration to finish a years-old review of its guidance on racial profiling, an effort supporters say should be a priority following this summer's upheaval in Ferguson, Mo.

Justice Department officials are set to expand a 2003 ban on racial profiling for federal agencies, but advocates say the effort has taken too long and they want Attorney General Eric Holder to expedite the process.

The latest push for the new rules follows the police shooting Aug. 9 of Michael Brown — an unarmed black teenager — that set off weeks of racial unrest in Ferguson. As the Justice Department develops the guidance, the agency is also investigating whether past police practices in the St. Louis suburb have violated civil rights.

"We need to have a much clearer understanding that racial profiling has consequences," said Cardin, a Maryland Democrat, who has become a leading voice on the issue. "We need the Justice Department to be clearer."

Cardin introduced legislation on racial profiling in 2012 and 2013, but lack of consensus in Congress has shifted attention to the federal guidelines, which many thought would be released months ago.

"We've all been expecting this to come down for a while now, at the very least much earlier this year," said Niaz Kasravi, criminal justice director at the NAACP. "This comes up with the department just about every time we have had conversations with them, particularly post-Ferguson."

The NAACP is set to release a report on racial profiling Thursday during the Congressional Black Caucus Foundation's annual legislative conference in Washington. The report will highlight the need for more effective anti-profiling legislation at the state and federal levels, the group said.

The FBI and other federal law enforcement agencies operate under guidance crafted more than a decade ago by then-Attorney General John Ashcroft that bars agents from making spontaneous decisions based on race or ethnicity. The guidance makes broad exemptions for national security, catastrophic events and border protection.

Cardin and others want to expand the ban to include religion, national origin and other characteristics. They are also seeking to narrow the national security exemptions and impose tougher enforcement. And they want the guidance to apply to local and state police agencies that receive federal funding.

"People are incredibly anxious to see updated guidance," said Jennifer Bellamy, legislative counsel for the American Civil Liberties Union in Washington. "It's very much a priority for the civil rights community."

A Justice Department spokeswoman, asked about the timeline for the guidance, responded with a one-sentence statement: "The review is ongoing."

But others, including law enforcement advocates, have questioned the scope of proposed changes to current policy.

James Pasco, executive director of the National Fraternal Order of Police, said he doesn't believe the Justice Department has the authority to impose a blanket policy on local police departments.

And he doesn't believe the problem is as pervasive as critics suggest.

"We find ourselves in the position of having to prove the negative here," Pasco said. "This is the kind of thing that can't go on in a well-managed police department."

A spokesman for the Baltimore Police Department, acting Capt. J. Eric Kowalczyk, said the department does not have a written policy on profiling. But Kowalczyk said the issue is the focus of new training for both new and veteran police officers.

The current Justice Department guidance was implemented two years after the attacks of Sept. 11, 2001.

Concerns about racial profiling have a deep history in Maryland, where the ACLU and the NAACP have waged a decades-old battle with state police over access to complaints. Last year, the Maryland Court of Appeals required the state to turn over internal affairs files on those complaints.

But the litigation is ongoing. The ACLU is now fighting with the state over extensive legal costs and the specific documents to be released, said Debbie Jeon, legal director of the group's Maryland chapter.

The Court of Appeals decision applied to records from 2003 to 2008, which Jeon said offer little insight into current police practices. The ACLU is pressing for more recent documents.

The case stemmed from a lawsuit filed by Robert L. Wilkins, a Washington attorney who was stopped by a Maryland state trooper while driving home from a funeral in 1992. Wilkins settled the case three years later after state police agreed they would create a policy against stopping motorists based on race. Wilkins is now a U.S. Circuit Court judge.

Cardin attempted to strengthen anti-profiling language with an amendment to a bipartisan immigration bill approved by the Senate last year, but the effort fell short.

His legislation would make federal funding for police agencies across the country contingent on their adoption of anti-profiling policies.

The bill defines profiling as the practice of relying "to any degree, on race, ethnicity, religion, or national origin in selecting which individuals to subject to routine or spontaneous investigatory activities," except in cases where the department has "trustworthy information" that links people of a particular group to a crime.

Cardin's proposal has received support only from Democratic lawmakers, and appears unlikely to advance in the GOP-led House of Representatives.

Advocates believe the Justice Department has completed a draft of the guidance that is now being reviewed by the Department of Homeland Security.

But the groups have received no information on the timing of the release or what will be included.

"We are not really sure where things stand right now," said Nadia Tonova, director of the National Network for Arab American Communities.

Her group has been pressing for changes to the racial profiling guidelines for years.

"I certainly think that Ferguson highlights the need for us to revise these guidelines," she said.

Tanya Clay House, public policy director at the Lawyers' Committee for Civil Rights Under Law, agreed.

"It needs to be updated," she said. "There needs to be a more uniform standard and something that's more reflective of the current situation."

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