Justice Department’s New Anti-Profiling Guidance Falls Short of Expectations

The Department of Justice released revised guidelines this week on racial profiling by federal law enforcement agencies. The guidelines include modest improvements, such as prohibiting the use of religion and national origin as a basis for law enforcement action. But the rules fall short of their purpose by explicitly allowing the profiling of communities at the border. Additionally, local police are not covered by the guidelines unless they are taking part in a federal investigation.

“Although the government concedes that both racial and religious profiling are ineffective and unfair, its revised guidance allows both to continue,” said Faiza Patel, co-director of the Liberty and National Security Program at the Brennan Center for Justice. “The guidance purports to extend to national security investigations the same rules that apply to normal criminal investigations. Instead, it weakens the prohibition on racial and religious profiling in both contexts and opens huge loopholes that weaken both our safety and our civil liberties.”

“I wholeheartedly agree with the Attorney General that profiling is an ineffective law enforcement technique that harms communities,” said Michael German, Fellow at the Brennan Center for Justice. “As such, the Justice Department Guidance banning profiling should contain no loopholes or ambiguous exceptions. Allowing the FBI to engage in racial and ethnic mapping, and to hunt for informants based on immutable characteristics only tells law enforcement that race is a determinant of dangerousness. Allowing TSA and Border Patrol to continue profiling will contribute to future error and abuse.”

For more information or to schedule an interview, please contact Seth Hoy at seth.hoy@nyu.edu or (646) 292–8369.