In the weeks before September 11, the volunteer attorneys working on the ACLU's racial profiling litigation in New Jersey were growing frustrated. They had been in settlement talks since April when Attorney General John Farmer admitted in testimony before the State Senate Judiciary Committee that the State Patrol has engaged in racial profiling on an ongoing basis. The statistics he provided were startling. On the New Jersey Turnpike, 27% of stopped white drivers were subjected to consent searches, 46% of African American drivers, 25% of Hispanic drivers, and 2% of Asian drivers. In addition, 54% of the consent searches of whites were based on a factor of probable cause, while only 26% of searches of blacks and 8% of Hispanics reflected probable cause. Despite such evidence of discriminatory stops and searches, the State has yet to make amends to the victims.
One client we represent, an African American dentist, Dr. Elmo Randolph, was pulled over approximately 100 times on the Turnpike in a five-year period without ever being ticketed. Another ACLU client, an Egyptian American public interest lawyer, Laila Maher, was stopped while riding with a colleague late one night on the Turnpike. When they were pulled over they were subjected to abusive and terrifying treatment at the hands of the troopers including pointing a gun at Ms. Maher's head and aggressively pushing her companion against the car. When finally allowed to leave, Ms. Maher looked in the rear view mirror and saw the police officers laughing uproariously.
These incidents happened more than five years ago and still have not been resolved. The State has admitted to racial profiling, admitted that it is an ongoing problem, and condemned the practice. Yet, New Jersey continues to defend itself in a lawsuit based on actions it admits were wrong and the practice of profiling continues. Amends have not been made to the victims who courageously stepped forward to tell their stories. Officers who engage in profiling have not been punished or demoted, and troopers have not received adequate retraining. The fact that New Jersey is known nationwide as the home of racist police practices doesn't seem to have motivated state officials to take the meaningful steps that will stop the practice of racial profiling. There has been plenty of talk, but no action.
As if this weren't troubling enough, on September 23 the Attorney General published an opinion piece in the Newark Star-Ledger headlined “Rethinking Racial Profiling.” In this article, Mr. Farmer attempts to justify the consideration of ethnicity in policing in the post-September 11 America. He states that “yes, in certain situations, a person's appearance - may give rise to suspicion that is ‘reasonable’ now that would not have been considered reasonable under ‘normal’ circumstances.”
Aside from the many negative social consequences of discriminatory policing that society at large has only begun to understand, the Attorney General seems to have forgotten that profiling doesn't work. We learned this when it was first employed in the fight against airport hijackings in the 1970s and it has been proven again by the racial profiling justified by the war on drugs. In fact, war on drugs profiling on the Turnpike has proven to be a dismal failure as a lower percentage of searches of African Americans turn up of evidence of crime than searches of whites (which are more often based on probable cause). In April, Attorney General Farmer testified that consent searches are twice as likely to yield seizures when conducted for whites as opposed to African Americans and five times as likely for Hispanics, which yield nothing 95 percent of the time. Seizures result in the consent searches of whites 25 percent of the time, for African Americans, 13 percent of the time and for Hispanics, five percent of the time.
Effective police work is based on close observation of behavior and intelligence work. What people do and what you know about them is what is important in criminal investigation, not how they look. In addition, pursuing investigations of people based on how they look takes resources away from more fruitful police work. Moreover, profiling people perceived to be Arab will spoil any hopes of a productive relationship between police and Arab community members that is so vital to a successful investigation.
Because of our dissatisfaction with the State's handling of this problem, and the expansion of targeted groups, the ACLU took steps to try to bring greater public awareness to the issue in hopes that more victims will come forward for assistance and so that the public and the State take racial profiling more seriously. In early October we launched an advertising campaign which included a billboard on the Turnpike (erected around exit 13, southbound, for the month of October) that invites victims to contact our racial profiling hotline and an ad that ran in the Newark Star-Ledger and other newspapers featuring Dr. Randolph's story. Early next year we will move into the next phase of the campaign with radio ads.
While some have criticized our efforts to bring forth more victims, and particularly the mention on the billboard that victims of profiling may be entitled to money damages, we believe that it is important to let individuals know that help is available and we are here. And, if people do come forward, their claims will not simply be documented and then stored away like so many police internal investigation complaints are. Rather, we will attempt to hold the State responsible for violating people's rights and for the humiliation and fear visited upon victims of racial profiling. We believe that victims deserve compensation (as many members know, neither the ACLU nor its cooperating attorneys charge clients for our representation and 100% of any money damages goes to the clients).With a September 27 Star Ledger-Eagleton poll revealing that 40% of New Jerseyans think that travelers from the Middle East should be given special scrutiny in airports, it's a difficult time to make a case against racial profiling. But now more than ever the ACLU must be vigilant in our opposition to discriminatory police practices. We haven't made enough progress to backslide now. We will continue defending victims of racial profiling and hope that the new state administration will address the problem and cite police profiling as the iniquitous behavior that it is.
-By Deborah Jacobs ACLU-NJ Executive Director