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Loopholes Exist in New Department of Justice Profiling Guidelines

Eric HolderNew guidelines against racial and other types of discriminatory profiling were announced by U.S. Attorney General Eric Holder on Monday for most federal law enforcement agencies.

Protests surrounding the recent police killings of unarmed Black men prompted the new guidelines to be released.

“Particularly in light of certain recent incidents, we’ve seen at the local level – and the widespread concerns about trust in the criminal justice process, which so many have raised throughout the nation – it’s imperative that we take every possible action to institute strong and sound policing practices,” Holder said.

The new guidelines are an expansion of the 2003 ban on profiling based on race or ethnicity. Holder’s guidelines also include gender, national origin, religion, sexual orientation and gender identity.

In order to use race or any of the other types of profiling, the information must be: trustworthy, relevant to the locality or time frame of the criminal activity, a threat to national or homeland security, a violation of federal immigration law, an authorized intelligence activity; and information concerning identifying listed characteristics must be tied to a particular criminal incident, a particular criminal scheme, a particular criminal organization, a threat to national or homeland security, a violation of federal immigration law, or an authorized intelligence activity, according to the guidelines.

However, the new ban will not “apply to interdiction activities in the vicinity of the border, or to protective, inspection, or screening activities,” the guidelines read.

The CIA, Transportation Security Administration (TSA) and the Department of Homeland Security (DHS) are exempt from the new guidelines.

On a conference call with other law enforcement officials Monday, Holder “made it clear that he was quite disappointed” with the exemptions, a person on the call told Yahoo News on the condition of anonymity. Holder said that Jeh Johnson, U.S. secretary of Homeland Security, pushed back on eliminating racial profiling because he said the race factor was necessary for some of DHS’ activities to keep the nation safe, according to Yahoo News.

The DHS exemption allows it to continue using race as a factor in decisions to stop and question people about their immigration status. The TSA is exempt from the guidelines as well in their airport screenings.

The allowance of exemptions seems contradictory to the purpose to some people. Jack Chin, law professor at the University of California at Davis, told Yahoo News that allowing some agencies to racially profile “muddies the water.”

“It seems arbitrary: Why is racial profiling OK in one circumstance and not OK in other circumstances?” Chin said. “It’s a compromise of the principle that I think will make it much harder to enforce.”

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