| Stick to
Fighting Crime Kevin R.
Johnson
8 Daniel
Richman is right that state and local police agencies, as well
as the federal government, have an important role to
play in combating
terrorism. Effective counterterrorism efforts will
require careful
coordination among all law-enforcement authorities in
the United
States. The difficult question is how to define the
roles of state
and local police.
The federal government invoked the
over-worn incantation that “September 11 changed everything” to
rationalize aggressive law-enforcement measures in the months
immediately after that fateful morning. But law-enforcement zeal in
the name of security can trample the rights of discrete and insular
minorities—in this case Arab and Muslim non-citizens. Many state
and local police agencies did cooperate with the federal government
in the months after September 11, acceding to requests to interview
hundreds of Arabs and Muslim non-citizens. In doing so they alienated
the very communities whose cooperation they need in any
counterterrorism effort. We
must recognize that state and local
police have legitimate political and law-enforcement reasons for not
being involved in immigration enforcement or engaging in what the
communities they police may perceive as racial, national origin, or
otherwise impermissible profiling. Therefore a discussion of the
coordination of federal, state, and local law enforcement can only
take place within those parameters. The United States has a large
immigrant population. Immigrants constitute an especially large
percentage of the population in certain localities. More than one
third of the residents of Los Angeles County, for example, are
foreign-born. For effective law enforcement, local police must have
the cooperation of immigrant communities, and many local governments,
including Los Angeles, have long had formal policies prohibiting
police from asking the immigration status of crime victims,
witnesses, and suspects. But immigrants—especially undocumented
ones—worry about any dealings with the government and would shun
local police if they participated in immigration
enforcement. Trust
of police by immigrants does not come naturally. Many immigrants come
from countries where citizens cannot trust the government and its
law-enforcement agencies. In the United States, local police have
been guilty of abusing immigrant communities in the past, with
certain particularly gruesome incidents—such as the brutal torture
of Abner Louima, a Haitian immigrant, by New York police—making
national headlines. Local police perceived as arms of the federal
immigration bureaucracy can forget about cooperation from immigrants
in criminal law enforcement. Moreover, even though a couple of
states, including Florida, have allowed the federal government to
train state troopers in immigration enforcement, most state and local
police have no understanding whatsoever of the labyrinthine U.S.
immigration laws, thus little ability to distinguish an undocumented
non-citizen from a non-deportable one (or perhaps even from a U.S.
citizen). The U.S. immigration laws are notoriously complex, rivaled
only, perhaps, by the overly technical and Byzantine Internal Revenue
Code. Federal immigration regulation is an exclusively federal issue,
not something (like crime) over which the state and federal
governments have concurrent jurisdiction. Immigration enforcement
must be separate from criminal law enforcement in the coordination of
counterterrorism efforts. One could seek local police to assist in
federal law enforcement, including but not limited to
counterterrorism, and, at the same time, decide that allowing states
to assist the federal government in immigration law enforcement is
not worth the costs at the community level. In this way,
counterterrorism efforts would look more like ordinary law
enforcement and less like immigration enforcement. Richman’s call
for greater coordination between federal, state, and local law
enforcement need not include greater cooperation in immigration
enforcement. Racial profiling
is another obstacle to effective
community–law enforcement relations in counterterrorism efforts.
Over the last decade, state and local governments have been criticized
for racial profiling and for focusing on minority communities in law
enforcement. The Clinton administration brought lawsuits, including
one against the state of New Jersey, to end racial profiling in law
enforcement. “Driving while black” and “driving while
brown”
had long since became part of the national lexicon. During the 2000
presidential election, the Democratic hopefuls Al Gore and Bill
Bradley each claimed to be tougher on eradicating racial profiling
before a largely African-American audience at Harlem’s Apollo
Theater. Racial profiling is a major law-enforcement problem partly
because minority communities are unlikely to assist police if they
believe they are unfairly targeted for criminal scrutiny. It destroys
the confidence of minorities in the police necessary for effective
law enforcement. Racial
profiling also has become a volatile
political issue. Minorities at the local level are likely to resist
perceived inequitable treatment by the police and respond politically
(or, as the Rodney King case demonstrated), sometimes violently, if
they see police misconduct or a pattern of police
misconduct. With
over 80 percent of its immigrants each year from Asian or Latin
America, racial profiling is a crucial issue for immigrants as people
of color in America. African-American, Asian-American, and Latino
civil-rights groups strongly resist racial profiling, with resistance
almost as strong (especially among Asian-Americans and Latinos) to
the proposed local police involvement in immigration enforcement.
Racial profiling is, thus, both a problem in immigration enforcement
and criminal enforcement and an example of how immigration and
civil-rights concerns often are intertwined. Yet crude racial,
national origin, or religious profiling were at the core of the
federal government’s response to September 11, as it attempted to
commandeer state and local authorities to assist in the mass
profiling effort. There is no question that federal, state, and local
governments need to cooperate in preventing future terrorist acts.
The question is how. Police officers on the streets should have
nothing to do with immigration enforcement. “Coordination” that
allows the federal government to participate in immigration
enforcement or requires reliance on impermissible profiles simply
will not work on the ground. Moreover, federal, state, and
local governments should all avoid the use of crude racial profiles
that target Arabs and Muslims for special scrutiny as terrorists. In
a policy statement titled Guidance Regarding the Use of Race by
Federal Law Enforcement Agencies (June 2003), the U.S. Department of
Justice condemned the reliance on racial profiles in ordinary law
enforcement—a sensible position—but reserved the right to
consider race, religion, and national origin to the full extent
permitted by law in fighting terrorism. Such a distinction makes
little sense and simply will not work on the ground.
Daniel Richman raises
critically
important issues worthy of serious debate. Both
national security
and civil liberties hang in the balance.<
Kevin R.
Johnson
is the Mabie/Apallas Professor of Public Interest Law
and Chicana/o
Studies at the University of California, Davis. He is
the author
of The "Huddled Masses" Myth.
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Right Fight.”
Originally published in the December
2004/January 2005 issue of Boston Review |
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