When law enforcement officers stop and question people for no particular reason, or in the case of the Drug Enforcement Administration, based on a vague perception that a person exhibits "characteristics indicative of drug trafficking," is it any wonder that allegations of racial profiling result?
A recent from the Justice Department Inspector General is a case study in the dangers of this kind of unfettered, unmonitored law enforcement conduct. It examines the DEA's use of so-called "cold consent" encounters with members of the public – instances in which officers stop individuals and seek to question, search, and possibly seize cash from them, ostensibly with their consent. The DEA uses such encounters to stop drug trafficking at transportation facilities. It considers the encounters "voluntary" because they're not based on any specific indication of criminal activity, and the officers therefore are not requiring anyone to stop and submit to a search.
There are two main problems with this approach.
The first is that, as the report notes, "cold consent encounters are more often associated with racial profiling than contacts based on previously acquired information." Meaning: When law enforcement officers don't have adequate reasons for searching people, they tend to search racial and ethnic minorities disproportionately. Recently revised from the Department of Justice makes clear that racial and ethnic profiling is unfair, impermissible, and "simply not good law enforcement."
That's precisely what seems to have happened with the DEA's cold consent encounters. Separate allegations of profiling from two African-American women prompted the IG to conduct its investigation. DEA agents stopped and searched each of the women on a jetway while they were preparing to board a flight. The agents said the first complainant was "pacing nervously" and "exhibited other characteristics" that made them suspicious that she was engaged in drug trafficking.
When officers stop people based on such subjective, ambiguous grounds – basically, their gut – they inevitably allow their own biases to influence those decisions. Similar allegations of racial profiling have been leveled at the TSA for its use of "behavior detection officers" in airport screening areas.
More demographic information on cold consent encounters would help reveal how much of a role of racial profiling plays. Conveniently for the DEA, it doesn't collect or analyze such information. As the IG concluded, this failure to collect demographic data prevents anyone from assessing "whether the encounters are conducted in an unbiased or effective manner."
For the DEA, ignorance is innocence.
The second major problem with cold consent encounters is that they're often not actually consensual. The story of the second woman who complained to the IG is an example. DEA agents told her that they were conducting "secondary screening" – a non-voluntary procedure typically carried out by the TSA – of passengers prior to boarding. She reasonably assumed that she had no choice but to submit to the search.
The IG found that DEA agents had used similarly misleading techniques near TSA checkpoints at airports on other occasions, misrepresenting themselves as conducting "secondary inspection" that appeared to be anything but voluntary. DEA agents, the report finds, also failed to advise people that they could refuse to consent to searches, or to request that people read and sign a standard DEA consent form.
When consent is relied on to justify a search, it must be shown that there was a clear and unambiguous consent, freely and voluntarily given. Troublingly, there's reason to believe the DEA is not only searching people without adequate consent or reasons, but also engaging in unlawful profiling in the process.
Learn more about search and seizure and other civil liberty issues: Sign up for breaking news alerts, , and .
Learn More About the Issues on This Page
-
Press ReleaseDec 2024
Prisoners' Rights
Criminal Law Reform
ACLU Sues Bureau of Prisons for Keeping People in Prison Longer Than the Law AllowsACLU Sues Bureau of Prisons for Keeping People in Prison Longer Than the Law Allows
WASHINGTON – A federal lawsuit brought today by the American Civil Liberties Union, ACLU of D.C., and Jenner & Block LLP challenges the Federal Bureau of Prisons (BOP) for unlawfully incarcerating people longer than the law allows under the First Step Act. The lawsuit contends that the BOP’s failure to implement the First Step Act according to its plain language violates the rights of thousands of people who should be returning to their communities and rebuilding their lives but instead remain incarcerated. Signed into law in 2018 by then-President Donald Trump, the bipartisan First Step Act was designed to reduce the population in federal prisons, reform extreme sentencing laws, and provide programming and reentry transition services to people in prison. Central to the First Step Act is a system of earned time credits, which allows people in prison to earn time off their sentences and time out of prison by participating in rehabilitation programs. Through the First Step Act, Congress unambiguously ordered BOP to move people out of prison when they meet certain requirements to use their earned time credits. Instead of faithfully following the mandatory law, BOP adopted a regulation treating the law as optional. As a result, thousands of people, who should already be back in their communities and with their families, remain in prison. “Every extra unlawful day our clients spend in prison is a serious injustice,” said Emma Andersson, deputy director of the Criminal Law Reform Project at the ACLU. “It is egregious that the Bureau of Prisons is imprisoning people for months longer than the law allows. The government must follow through on its legal obligation to get people out of prison on time and back into their communities, where they belong.” Additional comments below from: Vanessa Crowe, plaintiff: “Time is what I owed for my wrongdoing, and I have paid my time. But I should not have to spend more time in prison than the law allows. I often reflect on what I will miss during the months after when I should be out of prison. I will miss work and lose out on wages that would help me get back on my feet. I could be a tax paying citizen instead of a burden on society. But most of all, I will miss more precious time with my family. My family and I are ready to tum the page on this period in our lives — we are all ready to start a new life, a life with purpose, hope, and healing together. I want to start that life when I am legally entitled to start it-not five months later.” Arthur Spitzer, senior counsel at ACLU of D.C.: “There’s no excuse for the Bureau of Prisons to pretend not to understand Congress’s clear command that people who have earned the right to early release must be released. This law has been on the books for six years. The Bureau of Prisons has had plenty of time to understand it. Law enforcers should obey the law.” Betsy Henthorne, partner at Jenner & Block: “It has been six years since the First Step Act was signed, but despite Congress’s clear directives, the Bureau of Prisons continues to hold thousands of people in prison longer than the law allows. We should and do expect better—it’s past time for the BOP to ensure that those who have earned their release are able to return home to their families and communities according to the law Congress passed.” -
Maryland Supreme CourtDec 2024
Criminal Law Reform
Roland Branch v. State of MarylandRoland Branch v. State of Maryland
This petition to the Supreme Court of Maryland asked the court to reconsider its adherence to Whren v. U.S., 517 U.S. 806 (1996), which declared that a traffic stop undertaken for pretextual reasons does not violate the Fourth Amendment to the U.S. Constitution so long as the police have probable cause to believe that a traffic violation occurred. The ACLU, alongside the ACLU of Maryland, filed an amicus brief in support of the defendant’s petition, in which the ACLU argued that the court should take up the question of whether pretextual stops violate the Maryland Constitution. In September 2024, the Court denied the petition. -
North Carolina Supreme CourtDec 2024
Criminal Law Reform
State v. WrightState v. Wright
This case in the North Carolina Supreme Court involves the question of whether the police violated the U.S. Constitution when they searched the defendant, Mr. Wright’s, backpack even after he repeatedly said no to the search requests. The ACLU alongside the ACLU of North Carolina filed an amicus brief arguing that the search was unconstitutional because Mr. Wright’s eventual “consent” was the result of police coercion. Our brief urges the court to consider the totality of the circumstances that make one more susceptible to coercion, including race and poverty. -
News & CommentaryDec 2024
Criminal Law Reform
Disability Rights
Incarceration Should Not be a Death Sentence for Individuals Who Use OpioidsIncarceration Should Not be a Death Sentence for Individuals Who Use Opioids
New litigation centered on increasing access to substance-use disorder treatment in jails and prisons is helping to reduce mortality rates among incarcerated individuals.