WASHINGTON – U.S. Senator Ben Cardin (D-Md.) led his colleagues this week in a letter to U.S. Department of Homeland Security Secretary Alejandro Mayorkas and Attorney General Merrick Garland, urging the two agency heads to follow the guidance set out by President Joe Biden to proactively prevent discriminatory profiling based on actual or perceived race, ethnicity, national origin, religion, sex (including sexual orientation and gender identity) or disability. Signing the letter with Cardin are Senators Richard Blumenthal (D-Conn.), Cory Booker (D-N.J.), Dianne Feinstein (D-Calif.), Mazie Hirono (D-Hawaii), Tim Kaine (D-Va.), Ed Markey (D-Mass.), Jeff Merkley (D-Ore.), Alex Padilla (D-Calif.), Bernie Sanders (I-Vt.), Chris Van Hollen (D-Md.), Elizabeth Warren (D-Mass.) and Ron Wyden (D-Ore.).

“President Biden directed both of your agencies to assess the implementation and effects of the DOJ’s December 2014 Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity (hereinafter “2014 DOJ Guidance”). In particular, the President asked your agencies to consider whether this guidance should be updated and to report any recommended changes by late November,” the senators wrote, urging the secretary and attorney general “to recommend stronger, comprehensive antidiscrimination guidance to the White House, pursuant to President Biden’s directive.”

The senators made clear that “Discriminatory profiling is unjust in its targeting of minority communities, ineffective in stopping criminal or terrorist activities, inconsistent with American values, and wasteful of limited government resources.” The letter asks that “Both DHS and DOJ … play a leading role in carrying out the Biden Administration’s ‘proactive measures’ to ‘prevent profiling based on actual or perceived’ protected categories by issuing comprehensive and meaningful anti-discrimination rules.”

“We encourage DHS and DOJ to review the model DHS guidance on discriminatory profiling proposal that is detailed in the recent Brennan Center for Justice report, “DHS at 20: An Agenda for Reform; Stronger Rules Against Bias: A Proposal for a New DHS Nondiscrimination Policy.”

Senator Cardin is the author of the End Racial and Religious Profiling Act (ERRPA) and the Law Enforcement Trust and Integrity Act (LETIA), which are both contained in the George Floyd Justice in Policing Act.  Senator Cardin strongly supported the U.S. Justice Department’s civil rights investigation into the death of Freddie Gray in police custody in Baltimore.  This led DOJ and the Baltimore Police Department to enter into a consent decree to overhaul the system of policing in Baltimore, in order to ensure effective, safe, and constitutional policing in the city.

There is strong support for closing these discriminatory loopholes. The full letter can be downloaded here.

“Homeland Security and the Justice Department must fix their rules against profiling, which are riddled with gaps and loopholes . They effectively exempt large swaths of DHS activities, as well as FBI investigations. As detailed in a recent Brennan Center report, DHS’s anti-bias rules are scattered over a number of documents and even fail to cover profiling on the basis of religion in many contexts. The department’s record is rife with reports of agents relying on religious, ethnic, and racial stereotypes rather than facts,” said Faiza Patel, Senior Director, Liberty and National Security, Brennan Center for Justice at New York University Law. “We welcome President Biden’s commitment to ending discriminatory profiling. As Senator Cardin urges in his letter to the Attorney General and Secretary Mayorkas, the agencies should recommend urgent changes to current guidance, bringing DHS policy in line with the president’s vision – and with core American values of justice and fairness.”

“Communities of color and rights groups have sought comprehensive and effective anti-discrimination rules for federal law enforcement for decades. Using race, religion, ethnicity, national origin, or other protected traits as a basis for suspicion or investigation is the definition of bias. It’s also unlawful, unfair, and ineffective,” said Hina Shamsi, Director of ACLU’s National Security Project. “We deeply appreciate the efforts of Senator Cardin and his colleagues to press for long-needed reforms. The Biden administration needs to issue anti-discrimination rules that leave biased profiling in the history books, where it belongs.” 

“Discriminatory profiling is unjust, ineffective, and inconsistent with American ideals of justice and fairness,” said Nadia Aziz, senior director of Fighting Hate & Bias Program, The Leadership Conference on Civil and Human Rights. “We welcome President Biden’s commitment to ending discriminatory profiling and join Senator Cardin in urging the Departments of Justice and Homeland Security to revise profiling guidance to close existing loopholes and take proactive measures to prevent profiling.”

###