MR. ASPLEN: Professor Butler joined the faculty of George Washington Law School in 1993after years in the Justice Department public integrity section where he was involved in the investigation and prosecution of, among others, members of Congress, several law enforcement officials, and numerous federal agency employees. He also served a term as a Special Assistant U.S. Attorney prosecuting street crimes in D.C. Superior Court.

In 1992 Professor Butler received the Attorney General's special achievement award, and prior to his government service he was associated with the law firm of Williams & Connolly where he practiced in the areas of white collar criminal defense and complex civil litigation.

We've asked Professor Butler to speak to us today about the issue of racial profiling. It's not the issue of racial profiling in DNA databases, as was on an earlier agenda that went out. There are a couple of reasons for that, but one of them is we've, quite frankly, tried for about two years now to find someone to talk about that particular issue, to talk about the marriage of the two, and to talk about any particular instances that we're aware of wherein there has been a racial profiling based on DNA -- the database or an intentional arrest of someone to get them into the database based on race.

We haven't found any of those either speakers or those particular instances; however, the potential is obvious and the issue is obvious, and the point is it occurs elsewhere. We should know and analyze what other contexts in which racial profiling does occur, and then it will be the Commission's I guess function after Professor Butler speaks, but hopefully with his assistance to talk about what the potential issues are in regards to racial profiling in the context of the forensic DNA database.

With that thank you, Professor Butler.

MR. BUTLER: Thank you for inviting me here. It's a pleasure to be here, and I know that you're running a little bit late, so I'm going to make my presentation correspondingly shorter and still try to be done including with the discussion by 2:30. That's not particularly difficult because I think this issue that you have asked me to talk about, racial profiling, is a relatively easy issue, especially relative to some of the issues the Commission has been dealing with especially relative to some of the statistics and quantitative analysis, scientific issues that you're dealing with, even though as we'll see people often use statistics and quantitative analysis to try to justify racial profiling as well. I think that's a misuse, as we'll talk about in a few moments.

When I was invited to speak about racial profiling, I was delighted. I happily agreed with the caveat, as Chris mentioned, I don't know much about DNA. That's not my area of expertise, so I'm hoping to make the formal part of my presentation relatively short so that we can a discussion, the discussion that Chris mentioned about some of the ways that race and criminal justice or racial profiling might impact the future of DNA evidence.

I mentioned that this is a relatively easy issue. I think this is easy because I think in the next 10 to 15 years racial profiling is going to be eradicated most probably from the law, but hopefully from law enforcement practices as well. I'm reasonably optimistic that in that period of time courts will find that it's unconstitutional and also immoral, but I'm also optimistic that more police departments will find that racial profiling is inefficient and expensive. So again maybe the most productive use of this time is to talk about this present and future law than to think about how the future of race and criminal justice relates to the future of DNA.

So I'll start with a story that is going to complicate what I've just described as an easy issue. The story is about racial profiling. I'm the subject of the story. It's about one of the several times that it has happened to me, and the complicating factor is that in addition to being an African American man, I'm also a professor of criminal procedure, and sometimes those two identities seem redundant.

I'm walking about five blocks from here in the most beautiful neighborhood in the District of Columbia. It's the neighborhood where I'm privileged to live, and it's not a walk that I'm familiar with because I usually drive to work. Even though I'm coming home from work and walking in the city, I see raccoons, I see deer, all kind of birds, and even more unusual in the District of Columbia, I see African Americans and white people living next to each other. It's really a wonderful place to live.

I'm a little ashamed that this is an unfamiliar walk. It's occasioned because my car is broken down. It's about 9 o'clock at night. The streets are mostly deserted. I've got on jeans and a tweedy jacket, a law professor look.

When I get about three blocks from my house, a Metropolitan police car passing by slows down. I keep walking, and the car makes a right turn and circles the block and meets me. There are three officers inside the car. They greet me with the words, "Do you live around here?" I have been in this place before. I know that answering that question will be the beginning and not the end of an unpleasant conversation that I don't feel like having. I don't feel like answering after do I live around here, "Where do you live? It's kind of cold to be walking outside. Can I see some ID?"

So I ask a question instead. I answered their question "Do you live around here" with, "Well, why do you want to know?" The three officers exchanged a glance. It's the we've got a smart ass on our hands glance. I get that a lot. "Is it against the law to walk on the sidewalk if I don't live around here" I ask. They don't say anything. I said, "Have a nice day, officers," and I head towards home.

The police then engage in this investigative technique that probably is not called cat and mouse, but that's a more accurate description. They park their car on the side of the road. They turn off their lights and they watch me walk. When I pass out of their range of vision, they move their car to where they can see me, and in this fashion we arrive on the block where I live.

I have a question, and so I stop and wait. For once I have the power to summon the police faster even than the President of the United States, who lives about seven miles from my house. So sure enough as soon as I pause the car does, too, and the police and I then have I guess you could call it a conversation, but it consists mostly of questions. "Why are you following me? Why don't you tell us where you live? What made you stop me? We don't see a lot of people walking in this neighborhood. Are you following me because I'm black? No. We're black, too."

Now, that last answer was true, but it wasn't responsive. I asked these three black officers have they ever been followed around by a security guard or by the police? They all say yes. In today's New York Times there is an article, a long article about black police officers who are the victims of racial profiling in their undercover assignments. These officers say that stuff has happened to me. The sergeant says it doesn't bother her because she knows that she's not guilty. She's not a thief.

The specific context of the thief remark was I asked them if they knew about the Eddie Bauer case which had occurred recently. This was an instance in which an African American teenager was shopping at that store. He happened to be wearing a jacket that he purchased a couple of weeks before. The security guard at the store made him take off the jacket and go home and get a receipt to prove that he had purchased it.

The case had been in the news because there had been a trial the week before about whether that was a civil rights violation. The kid, an 18-year-old kid, when he testified about how that made him feel, he broke down and cried. It had been in the news because the kid ultimately was awarded quite a bit of money.

The officer said that she hadn't heard of it; the sergeant did, but they said again my neighborhood wasn't one where they usually see people walking, and furthermore, "We know everybody who lives in this neighborhood, and we don't know you." I asked them, "Do you know who lives in that house," pointing to the house where I've lived for the past 14 months. They answered, "Yes, we do."

And so I walked. I walked up my stairs. I sat on my porch and I waited. I waited because I'm a professor of criminal procedure, and I waited because I remembered the last time that I had cooperated I was in a different place and at that place cooperating meant I let them search my car or rather I let one search my car while the other watched me with his hand resting on his gun on 16th Street with cars whizzing by. I pretended like I was invisible.

Now the officers parked their car and they positioned the spotlight in my face. All three of them joined me on my porch. "Do you live here? Yes, I do. Can we see some identification? No, you may not."

During the antebellum period of our nation's history blacks were required to carry proof of their status, slave or free, at all times. Any black who was unsupervised by a white was suspect. In North Carolina to make it easier for law enforcement blacks were required to wear shoulder patches with the word "free."

So at this point the District of Columbia through its three agents sitting on my porch along with me tells me it's too cold to be outside. "Go in the house." I said, "I'm content where I am," and the police announce that they are, too. They are not going to leave until I produce some ID or enter the house.

This is where the story gets bizarre. Walking home relatively late for a law professor -- 9 o'clock is actually really late because I had been working on a book review for the Harvard Law Review, and the book which I'm carrying in my knapsack is Race, Crime, and the Law by Randall Kennedy, a professor at the Harvard Law School.

Since apparently none of us have anything better to do this evening, I take out the book and I show the officers Chapter 4, "Race Law, and Suspicion Using Color as a Proxy for Dangerousness," and this chapter in this book contains several stories just like the one that I've told you. It quotes a professor at Harvard University, Henry Lewis Gates, who says -- and this is what I read to the officers -- "Blacks, in particular black men, swap their experiences of police encounters like war stories, and there are a few who don't have more than one story to tell. Eric McDonald, one of the few prominent blacks in publishing, tells of renting a Jaguar in New Orleans and being stopped by the police simply to show cause why it shouldn't be deemed a problematic Negro in a possibly stolen car. The crime novelist, Walter Mosley, recalls when I was a kid in LA, they used to spot me all the time, beat up on me, follow me around, and tell me I was stealing things. Julius Wilson wonders why he was stopped in a small town by a policeman who wanted to know what he was doing in those parts." There is a moving violation that many African Americans know as DWB, driving while black, but this I tell the officers is the first time I've heard of walking while black.

I've got a big picture window in my house. I pointed to that picture window. It's right across the street from a park. It's a beautiful place to walk, and I tell the officers I see people walking down that street all times of the day or night, white people, and I never see them stopped and asked to produce ID or if they live in the neighborhood, and that's why I'm not going to show them my ID. It's not apartheid South Africa, and I don't need a pass card.

How did it end? The officers weren't interested in my politics or my reading Law Review articles. In fact, they announced that they were getting angry. They were burglaries in this neighborhood and car vandalism, and the police were just doing their job and I'm wasting their time, the taxpayers' money. One officer said I must be homeless. The other one says that I'm on drugs. When they find out who really lives in the house and whose porch I'm on, I'm going to be guilty of unlawfully entry, a misdemeanor.

The sergeant says ultimately that since I was being evasive, she is going to interview my neighbors. The two officers who remained radioed for backup. The officers over the police radio actually gave the wrong address for the house, and I corrected the officers. Soon a second police car arrived with two more officers.

I was cold, but stubborn. Finally my neighbor came out and identified me, and I was free to be left alone, free to walk on a public street, free to sit on my porch even if it was cold.

So that's the story. What is the moral of that story? What happened to me was racial profiling. In the most benign, charitable, legal interpretation racial profiling is when law enforcement uses a particular racial identity as one of several indicia of suspicion. So what it is is race based stereotyping. So when the police are looking for drug couriers at the railway station in addition to looking at clothing and how you purchase your ticket and how you walk when you get off the bus, they look at whether you are African American or Hispanic.

What racial profiling is not is race based identification. Among the many groups who have problems with race based profiling, I never heard anyone say that police should not be allowed to use race in the description of a suspect or perpetrator.

Why does race based suspicion exist? The most common explanation is that it's rational discrimination. Drug drives is probably for African Americans the most common context of race based suspicion. For whites it's also probably the most common. Whites driving around mostly black neighborhoods, especially a project, are often the victims of race based suspicion. Hispanics also. Racial incongruity, whenever you're not in an area where people of your race should be or usually are, you can be the victim of it. Hispanics also experience it quite frequently at the border.

The explanation again is rational discrimination, and it's justified by the use of statistics. If you think about drug runs, for example, it's true that most of the people -- over half of the people who are convicted of drug crimes in the United States are African American. Since that's true, some police officers say it makes more sense for us to think that you're more likely to commit that crime if you're African American, so that's why we focus on you.

There is an interesting relationship here between looking for things and finding things. What do I mean by that? Well, if we think about drug crimes, for example, according to the Department of Justice African Americans don't use drugs any more than any other groups. African Americans are about 13 percent of people who use drugs according to the DOJ, which has fairly sophisticated ways of tracking these things.

If we look at drug possession, the crime most closely correlated with use of drugs, African Americans are 33 percent of those who are arrested for that crime. A little more than half the people convicted of that crime -- if you look at everybody who is in prison for drug crimes, over 75% are black for drug possession. So 13 percent are users. They're about 75% of the people who are incarcerated for that crime.

So there is a certain amount of self-prophecy when police say that it's rational because you're more likely to be convicted of drugs if you're black; therefore, we're going to look there. The person who made this argument in another context most eloquently about the unfairness of focused suspicion, not race suspicion, was Justice Scalia of all people. Justice Scalia had the occasion to examine this relationship between looking for things and finding things when he was reviewing the independent counsel statute in the case of Morrison versus Olson.

Justice Scalia believed that the Act, the Independent Counsel Act, was unconstitutional for several reasons, so he dissented when even the court found that it was constitutional. He also included a remarkable short passage about why in addition to being unconstitutional, the act was unfair, and his argument was that's it's not fair to look specifically at one person or one group of people to see whether they've committed a crime. I'll read you what he said, and try to remember that Justice Scalia is talking about not African Americans, but people who are the subject of the Independent Counsel Act.

"If a prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor because he will pick people that he thinks he should get rather than cases that need to be prosecuted. With the law books filled with the greatest assortment of crimes a prosecutor stands a fair chance of finding at least a technical violation of some sort of some act on the part of almost anyone.

"In such a case it's not a question of discovering the commission of a crime and then looking for the man who has committed it. It's a question of picking a man and searching the law books and putting the investigators to work to pin some offense on him. It is in this realm in which the prosecutor picks some person whom he dislikes or desires to embarrass or selects some group of unpopular persons and then looks for an offense that the greatest danger of use of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group."

So that's Scalia on why law enforcement attention focused on one group is wrong, is unfair. Scalia seemed to describe a lot of motives as to why law enforcement would do that. A lot of my police officer friends, African American mainly, admit that they especially enforce the drug laws in African American communities, but they do it for what they consider benign reasons. They think it's in the best interests to those communities. So they admit the selective enforcement, but don't think it's a bad thing.

That's what it is. Again, I believe you have a Law Review article from Professor Harris in which he describes many careful studies about instances in which race profiling has been proven. One fairly well-known study was done on I-95 through Maryland. What all of these studies find, especially in the driving while black context, is that on highways, on interstate highways like I-95 virtually everyone breaks some law, mainly the speeding laws, so the police have wide discretion about who they could stop, and invariably African Americans are stopped much more frequently than others, and then they're asked if they can be searched or the police use the stop as a pretext to look around their car.

So there have been a number of studies that have found this. African Americans don't break the speeding laws more than any other group. On I-95 I think they were about 15% of people who broke the traffic laws, which is consistent with a good percentage of the population, but they were far more than half of the people that were stopped. So again there seems to be fairly compelling evidence that racial profiling exists.

What is the law on this issue? There have been two kinds of challenges, a Fourth Amendment criminal procedure challenge and then a 14th Amendment equal protection challenge. So far the law in most jurisdictions is that racial profiling or based suspicion, that is, the use of race as one indicia of suspicion is perfectly legal. It's perfectly constitutional. The constitutional analysis, the Fourth Amendment analysis, is whether it's reasonable -- is it reasonable for law enforcement to be focused on African Americans. The majority rule was expressed by the Eighth Circuit in acase called U.S. versus Weaver.

Is it reasonable? The Eighth Circuit says: "Facts are not to be ignored simply because they may be unpleasant. Race when coupled with other factors is a lawful factor in the decision to approach and ultimately detain a suspect. We wish it were otherwise, but we take the facts as they are presented to us, not as we would like them to be." Most jurisdictions are in accord with the Eighth Circuit on that. There are a few states and notably in the Federal Circuit, the Ninth Circuit, which does not allow race to be an indicia of suspicion, so in the Ninth Circuit racial profiling is unconstitutional.

The analysis there is in response to what I said, that the police when you're -- this concept of racial incongruity, when you're in an area where members of your race aren't supposed to be, the police can especially focus on you, that's not American is what these jurisdictions have said. The State of Minnesota in a relatively well-known case and now the Ninth Circuit said that's not how we do things in the United States of America. That's not reasonable. The Supreme Court has never directly reviewed this issue. One reason it hasn't is because civil rights advocates who were bringing these cases don't want the Court to consider it now because they're afraid of what the answer would be.

So finally the effects of the law. I think that there are some troubling effects of the current law. These effects have led to groups like the NAACP, the Urban League, the State Black Caucuses instituting reforms designed ultimately to eliminate racial profiling and race based suspicion. One of the most troubling effects is that it makes law enforcement less efficient. Race based suspicion and racial profiling is lazy law enforcement. It's inefficient. If you're focusing on people because they're African American, you're letting a lot of the bad guys go, and the drug context is an especially easy way to see that.

Again, if African Americans are only 13 percent of people who are using drugs, possessing drugs, but they're 75% of the people incarcerated for that, there are a whole lot of people out there who are not African American who are not being treated by the criminal justice system because the police are focused on African Americans. So I think what we all want from our law enforcement is crime control. We all want safer streets, and race based profiling simply doesn't bring us safer streets.

One other troubling effect of race based profiling is the impact that it has on racial disparities in the criminal justice system, and this may be of some use to your work in deciding whether and when DNA should be collected from people who are accused of crimes and especially whether it's at the arrest or conviction level.

In California two-thirds of black and Hispanic men are arrested before they reach the age of 30. In the District of Columbia about 50% of young black men are under criminal justice supervision, that is, awaiting trial, probation, or parole or in prison. A lot of the reason for this, the explanation for that disparity is this race based profiling. There is a federal judge in Massachusetts, Nancy Berger, who has suggested that the specter of race based profiling leads to such a disparate arrest rate among African Americans, that for African Americans it's not fair to consider their arrest rate in sentencing. So she doesn't consider their arrests because she thinks the race based profiling which has led to a lot of their arrests makes that an inequitable consideration compared with white people.

The last effect I want to talk about before I begin a discussion is I know that in fact race based profiling enhances minority mistrust of the criminal justice system. Everybody wants safe streets. Since virtually every African American man I know and many Hispanic men and many women of color have stories like the one that I told you at the beginning, stories of being stopped by law enforcement we believe because we're African American or Hispanic and we're totally innocent, it makes us doubt both the good faith and efficiency of law enforcement, and it has a really negative effect on psyche as well.

Just for your information, after that experience -- even now I think about how I look when I walk around my own neighborhood, so on a day like today when I would love to be able to take that walk in cut-off shorts and a baseball cap, I won't do it unless I feel like having another experience with police officers. Sometimes I actually prefer to leave criminal procedure at the office. The effect has been discussed by an interesting dialogue between law professors. I'll just read you a sentence from that dialogue.

One of the law professors said -- the issue here was what about when women feel like they're being followed by a black man? It's often a white woman, and they cross the street to avoid that. The one law professor, who was a white woman said, "Well, the calculus there is whose feelings are we going to be concerned about most? Are we going to be concerned about the woman's feelings or the man's feelings? I for one would rather be snubbed than raped." So the calculus is reasonable to cross the street so you won't believe or won't perceive that the black man is following you.

An African American professor named Jodi Longworth responded to that by talking about what he called the microaggression of being subject to that judgment based on race and the toll that it takes, and he says: "From the standpoint of doing justice to the severe dignitary injuries reflected by these microagressions and the extreme unlikeliness that any one African American person is likely to commit a crime," he says, "a better comparison than I would rather be snubbed than raped would be I would rather have waves of strangers successively spit in my face than run the extremely remote risk that a random anonymous black man might rape me."

I like that because that's what it felt like on my porch. I should say, especially since I know that Officer Gainer is here, that the police were relatively polite to me. I never doubted that they would use excessive force on me, and for most of the time I didn't doubt their good faith. I just thought that they were misguided. In fact, one of the reasons that I was able to engage in this exercise in criminal procedure is that I didn't think they were going to harm me physically. Nonetheless, it did feel like being spat at, just the fact that they were questioning my ability to walk in my neighborhood.

The final claim -- and this I think will relate to some of the Commission's work -- is juries. I think that many jurors are skeptical of law enforcement claims of special expertise in part because of the mistrust that race based profiling engenders. When I was a Special Assistant U.S. Attorney, some of the black assistants would joke among ourselves about the D.C. juries and their receptiveness to special technology. Here we weren't thinking about DNA, but we were talking about relatively low tech. infrared binoculars.

We had some cases, some buy bust cases, in which we put police officers on the stand who would testify that they had observed a drug transaction in the evening from a distant vantage point using binoculars, and the police would say that these binoculars allowed them to see as well during the evening as they could during the day by virtue of their special technologies.

While a lot of people might accept that claim at face value, D.C. juries often needed proof. They want to see the binoculars. They want a good explanation about whether they really did what the police said they were doing, so often if we could, we would show them the binoculars. We would give them a special demonstration. They wouldn't believe it just because it was technological and some police expert told them that they should.

Think about it from a historical perspective. The skepticism about government claims when it comes from African Americans shouldn't be that surprising, and I think it's especially appropriate, the skepticism in the criminal context, when the government has the heavy burden of proof. So that's another issue that the Commission might want to consider. I think the nexus of racial profiling is that it's in everyone's interest to instill confidence in our criminal justice system.

Professor Scheck in his Innocence project was certainly instrumental in showing how DNA evidence helped make our system more fair for accused persons as well as more efficient law enforcement. So I applaud those efforts, and I wish this Commission well in its task of making recommendations that will gain the support of our diverse nation.

Thanks for your attention. I would love to hear what you think about this, and especially if you want to talk about how this might relate to your work.

MS. ABRAMSON: Thank you, Professor. Comments? Questions?

MR. HILLARD: What I would like to know is you hear the ACLU, the NAACP, and all the different advocates became experts on racial profiling in the last year and a half, and everybody wants every organization, every law enforcement organization to collect statistics. Can you give me a read on that? Is statistics alone going to prove this? We're struggling with it in Chicago. That's one reason I'm asking.

MR. BUTLER: The statistical studies that have been done have proven that race based profiling occurs; that is, it's proven to a lot of people. All the statistics do is collect evidence of who police stop when they make reasonably suspicious stops and the race and the gender of the people who are stopped. They collect a body of data, and that's usually seen by groups like the NAACP and the ACLU as the first step in ultimately eliminating these practices. For a long time police publicly said that race based profiling didn't occur, that they didn't consider race, and these statistics seem to refute that.

In terms of legislation, that's as far as most laws go now. There are laws in some jurisdictions that require police to collect these statistics. The President under executive order has required the police agencies under his control to also collect such statistics. There is a bill pending in the Congress that will require law enforcement nationally to collect these kinds of statistics. That bill doesn't seem to be going anywhere. There is resistance to this among law enforcement.

Again, it seems like a relatively minor step, but it's one that any law enforcement agencies I guess for paperwork reasons, among others, have been reluctant to engage in.

MR. HILLARD: Maybe you didn't get me. What I'm saying is do you think just collecting statistics alone is going to be able to -- we know that racial profiling has no legitimate concern in law enforcement, those of us who want to admit it, but what I'm saying the ACLU, a number of committees, a number of advocate groups that we have in the City of Chicago, they want us to collect just the statistics, not analyze them, not evaluate them, and give them to them. As you know; you're a professor, statistics can be manipulated.

MR. BUTLER: I agree with you that there is no value in simply collecting statistics. I think the collecting of statistics is the first step in either seeking some kind of reform due to the law -- I'm saying this does happen, contrary to what you may believe, so let's do something about it, or do we need some kind of tort reform.

So far the Fourth Amendment challenges haven't been successful. There are also some constitutional challenges and some equal protection constitutional challenges. The idea is that the government according to the constitution isn't supposed to be color conscious with rare exceptions, and this isn't one of those exceptions. It's an argument that some people have made because they think it will appeal to the more conservative members of the Supreme Court. I certainly agree that it's only a first step, and that the real work is in eradicating the practice, not simply acknowledging that it exists.

MR. GAINER: In that regard two issues. The statistical thing Chief Ramsey and I have talked about a lot in Washington, whether we ought to do that, and we haven't exactly worked through the implications, but if in a given district in the city where 90% or 95% of the residents of that neighborhood, that district are African American, what would statistics show you in that neighborhood about who was stopped and who wasn't stopped? I would presume and I know that most of the officers are black and most of the people they would stop in their district where they work all the time would be black. What would we do with those numbers?

MR. BUTLER: When we think about the race of the officers, for example, one thing we're beginning to find is that doesn't much matter. It seems that African American police officers and private security agents are as likely to engage in race based profiling as anyone else. Again, they're certainly subject to the hype that African Americans are more likely to commit crimes, and therefore it's better law enforcement to do that.

I certainly take your point, though. In some areas there is a huge African American population in some segregated areas, and the statistics aren't by themselves going to be that useful, although again it's changing. Having said that, I think in the District of Columbia they still might be useful for some crimes, for example, the drug possession and distribution crimes. The District is about I think it's 65% African American and 35% non-African American. Even in the District, though, I would imagine there is still racial disparity in terms of arrests and convictions for drug crimes.

When I was a Special Assistant U.S. Attorney, it was rare to see a white person in court. I don't take that to mean that whites rarely use drugs in the District of Columbia, so again even there there seems to be some kind of disparity that collecting statistics might give us an introduction to what is going on.

MR. GAINER: The caveat would always be that thoughtful people would have to look just beyond the numbers because if one published the numbers in a particular area that indicated 95% of the people were African American, then someone would make the conclusion that gee, the police must be prejudiced. So you have to be thoughtful.

The second one really applies to your story, and I think like anybody who would hear it, it's disturbing to know even polite officers were acting incorrectly, but actually what is more disturbing to me is to hear you say this afternoon you wouldn't go out in shorts and a ball cap because you think you might be stopped, which implies that you presume that all police officers would stop you because you have that on.

So sometimes the speakers like yourself might leave me with your impression or others that you're biased against police officers to think that every police officer thinks that every black ought to be stopped. I'm uncomfortable with you saying that, whether that was meant to be provocative or you really feel that about our police officers.

MR. BUTLER: I use that as an illustration of the toll that racial profiling takes on you. I think the term microaggression is a pretty appropriate term, and it leads to some responses that may or may not be rational, but that's the effect. That's the impact. Part of it is just a calculus of risk. I don't know. In fact, I doubt that every single police officer would stop me now in my neighborhood. Some know me. The ones who don't, I think some probably would not stop me. They would assume that I live in the neighborhood, but I had a right to walk on the streets without being questioned about that. Others might stop me.

So when I consider the calculus of risk, if I'm walking with a buddy, if I'm walking with a friend whom I've invited to see the houses they're building around the neighborhood, it has kind of ruined my day in a way that again I don't want to risk happening.

MR. GAINER: In the calculus of risk you ought to consider the fact that as many police officers as there are on the street at this moment versus as many people, I can assure you that very few people are being stopped. In fact, if you go to most community meetings, they will say they don't see police officers and not enough action is being taken. So the calculus of risk is quite low.

MR. BUTLER: Right, and that goes to the issue of efficiency. In my neighborhood you would see police occasionally patrolling the area, which I thought was okay because compared to some other parts of the city we don't have a real high crime rate, but I was always glad to see them patrolling.

What I want again is efficient law enforcement. One of the scary things about what happened to me was in that instance at least when I had the attention of five police officers, that wasn't efficient law enforcement, and that was the concern.

So I think again there is always this tension of African Americans complaining about racial profiling, but at the same time saying we don't see any police in our neighborhoods. How do you explain that? Again, what people want is safer streets. They want efficient, effective law enforcement, and they understand that racial profiling doesn't lead to that. So I don't think that there is necessarily a tension between asking for more police, but you also want the police to do their jobs without using race as a criteria, and they seem to be doing that. That makes you more dubious about the whole system.

MR. THOMA: I wanted to address Superintendent Hillard's questions about the collection of statistics. Just as a matter of fact, it just happens that anything from very unfortunate incidents to genuine tragedies, as the Sports Illustrated article that I showed you regarding the New Jersey incident, have caused the collection of these statistics, and in the Minnesota Law Review article Professor Harris addresses that the Maryland study is based on a series of unfortunate incidents to Ralph Wilkins. Probably the chief is familiar with him. He's with the defender services, an attorney here in Washington, D.C.

The problem with it is and the question you have as to whether we should collect them, I think what it really comes down to is if you do it, at least it may go a step towards raising the consciousness and raising the consciousness towards eliminating the problem, it being raised and everybody realizing it, not just the targets of the racial profiling realizing and recognizing that is prevalent anywhere.

One of the reasons I brought this up is when Commissioner Saffer testified to us, in my jurisdiction Native Americans are stopped an inordinate amount of times and their cases are dismissed. They're kept in custody the 72 hours that they can be kept and the cases are dismissed. Certainly Madison County doesn't have other minorities, particularly the levels of Native Americans, but my reading has shown that it is prevalent in a lot of places, if not everywhere, and what we need to do to raise the consciousness of it is take it into in our deliberations as to whether we do DNA extraction upon conviction of serious crimes for which we have real reasons to do so or we do it on detention and arrest where we have these inherent problems, which will cause an inordinate amount of minority persons who are totally innocent and not convicted of any crimes to be within a database that they have no business being in.

I'm sorry to get long-winded here, but I was trying to address the statistical issue. I think it's a good idea if the resources are available to do it. I realize statistics can lie in some instances. I doubt that it would do so in this particular area. It has been found not to so far.

MR. HILLARD: Jim, I think you need to look at what organization is analyzing statistics as the first thing. The second thing is I don't think that we need to generalize. I heard you make a statement saying it's prevalent. It's happening all over. You're generalizing. If I generalize about lawyers, I'm going to generalize about doctors. Let's not generalize about law enforcement.

MR. THOMA: Terry, I would never generalize, and I'm not trying to say that it's absolutely everywhere. I'm just saying that where the statistical analysis has occurred in these instances, and it has only been caused by instances such as tragedies or in circumstances like this, it has been shown that it is prevalent and it does occur. Other places have not done the statistical analysis, and I haven't seen any statistical analyses in which it has not occurred.

MR. HILLARD: Just like I said.

MR. GAINER: I appreciate your concern about generalizations, though.

MR. HILLARD: I think one of the things when we are talking about statistics, it's incumbent upon the law enforcement executive to get the people training, supervision, counseling, and discipline when necessary when this occurs. On the other hand, if they're really engaging in this type of behavior, this type of attitude, what we need to do just like you do with brutality, excessive force, it won't be condoned. You use the other hand and you go after him.

I think the NAACP and Allstate came out with a very unique video and training program that we not only use in the Chicago Police Department, but we use out in the neighborhoods when it comes down to engaging and disengaging not only with the young folks, but with the people on the street, and those first 30 or 40 seconds can detail whether an engagement is going to be positive or be negative. It just so happened with the good professor it went negative, but I really do think a lot of it has to do with training. There is a certain segment out there that need to be enlightened, too.

MR. BUTLER: When you think about again whether this recording of DNA evidence should occur and what stage in the process it should occur, you should be aware about this extreme disparity. It would be troubling to a lot of people if the DNA of two-thirds of the young black and Hispanic men in California was on record in some law enforcement agencies, and again two-thirds of black and Hispanics in California get arrested before age 30 and a small minority of white men had DNA on record. That would be a troubling disparity.

To the extent that you're concerned about political support for those ideas, again for whatever reasons a lot of civil rights organizations are jumping on this bandwagon about racial profiling, and it has led to some interesting twists in legislative agendas. For example, in Virginia in a jurisdiction there was a mandatory seatbelt law that was being considered by a municipality, and the NAACP and the ACLU came out against that mandatory seatbelt law because they thought the police would use it as a pretext to engage in racial profiling; that is, they would see a focus especially on African Americans who weren't wearing seatbelts and were stopped, so even though that is not an issue that has an obvious racial nexus, there was because of the specter of race based profiling.

DR. ADAMS: I would be interested in any comments you could make regarding a statement that Dr. Crow touched on this morning when he talked about new or future DNA technologies, and that is the potential of DNA being used to predict the racial origin let's say in an unsolved crime, having that DNA in the laboratory being able to predict the racial origin of the individual that left that body fluid and where you see that falling in the continuum of race based profiling all the way to identifiers that you talked about.

MR. BUTLER: It's a good question. It's not something that I've thought about. Upon hearing it, it sounds like it would be more along the lines of an identification, which again is nothing that civil rights organizations have had problems with. No one has said that race should not be used as part of an identification of a suspect or an accused person.

One of the things you have to think about, though, is again in terms of common sense, the practical analysis, is how useful that would be. There was a case in Upstate New York. I can't remember the town. It was a college town in which an elderly white woman said that she had been robbed by an African American, and somehow due to some blood evidence that had been collected from the accused person, the police then went to all of the African American men in the town and asked for a sample of their blood so they could get the kind of evidence that they wanted to identify the perpetrator. That was appealed.

The scary thing is that the Second Circuit said that it was permissible law enforcement under the Fourth Amendment. There was no equal protection argument, so that was allowed. One of the things you have to think about is how efficient it is if all the DNA is going to give us here is narrowed down to a specific race, sometimes that might be useful; sometimes not. To answer your question, it does sound more like an identification than like a profile.

DR. CROW: It certainly would have uses in the identification of anything. It would usually be a pretty probabilistic and therefore weak identification, sort of like an identification of a perpetrator in the dusk or something like that.

MR. BUTLER: To make the obvious point, race is not a genetic concept. It's what we call a social construct. So I think at most what the DNA will be able to tell you is different physical attributes that are associated with certain racial groups or maybe dark skin or the shape of eyes, but there is obviously no such thing as black or white or Asian DNA. In fact, Africans tend to have more diverse DNA or more diverse genes generally than any other group.

DR. ADAMS: It's much more simple than that. If you think of the ABO blood type, you can take a blood type like AB that might be more prevalent in the black population -- if you've got ABO at the crime scene, the analyst could say the likelihood is that it's more likely from an African American versus any other. DNA is probably getting much more specific than we've seen with ABO blood types or anything else.

MR. BUTLER: That could cut both ways. Again, as Professor Scheck has indicated, there are all kinds of ways that DNA evidence can be used to advance racial equality or racial performance. One of the issues in this case in Upstate New York, it was a small town. Originally all the blackmen who lived in the town were students at this university, and so the police were able to say again it's a fairly limited universe. It didn't seem limited to the people who were the subject of the searches. I think it was about 100.

If DNA is more specific than something like a blood type, that make might the search more focused and less intrusive.

MR. ASPLEN: A couple of questions. First of all, can you point us in the direction of any examples of databases other than the DNA database, for example, the AFIS system, drug fire, or any others that don't come to mind right now -- instances of racial profiling that have occurred for the purpose of getting the blacks into the database, for example, arresting someone for the purpose of getting them into the fingerprint database or whatever so that they could be randomly searched? Is there an example out there of something like that that we could look at and kind of compare what those issues are to the DNA database?

MR. BUTLER: Not that immediately comes to mind, although anecdotally you hear about those practices. Why don't I think about that. If I know of one, especially if there is a good article, I will be happy to share with it you.

MR. ASPLEN: My next question is given the nature of the way that the database hit works in that you find a crime scene sample from the perpetrator at the crime scene, it's an unknown sample, you put it into the database, and you get a hit, there is no racial bias there. The science is racially neutral. That as compared to the scenario wherein the victim gives a vague description of an individual, but it includes race, and the police go through the traditional investigative technique of let's say rounding up the usual suspects part of the process and they identify maybe three or four possibilities, maybe three or four of which were wrong, in that regard the database is a great benefit to taking race out of the whole process. Is that a fair assertion?

MR. BUTLER: Yes.

MR. ASPLEN: My third question is this: Do you feel like -- this relates more to my first question -- that if we did go to an arrestee based database, would that tend to promote racial profiling by attempting to get individuals into the database for the purpose of searching them in the database? I guess is that --

MR. BUTLER: I certainly think that that would be a concern among some civil rights organizations because you do hear about law enforcement in some jurisdictions, not most, but some who are more interested in arrest than they are in convictions because they want to make people part of the system. They want information, not DNA, but the other kinds of booking information to become part of the system.

I had a judge in the Superior Court here who was fun as a prosecutor to try the cases in front of because the rare times I lost he would look at the defendant before or after he gave "you're free to go" speech who would say, "You will be back."

I think a lot of police supervisors think that, too. We know that they are often correct, that there are high rates of recidivism, including among the people who are arrested. So with that ideology there might be that it's a good idea to get this person in the database.

Again, the major issue here, though, is of mistrust of law enforcement concerning that law enforcement would do that and we shouldn't have that kind of mistrust, and that's where I think the political part of what you have to do is so important in terms of getting community support and civil rights organizations support because even when it's more efficient, that doesn't always lead to the idea that a reform should be implemented.

Believe it or not, among civil rights organizations there is actually some controversy about how efficient race based profiling is and whether it's a good idea, and there are some people, including Professor Kennedy, who think that actually race discrimination makes sense in some quantitative way for the police to especially focus on African Americans or Hispanics, but nonetheless they still shouldn't do it because it's unconstitutional maybe or, you know, that the Bill of Rights isn't designed to make things easier for law enforcement. In fact, in most ways the Fourth and Fifth Amendments make things more difficult for law enforcement, and so what you might do if you're not careful is win the imperial efficiency argument with DNA, but not win the political argument because of this mistrust about the criminal justice system, and especially if you're going to be making decisions about arrest versus conviction. There is nothing that's nonrational about arrest rates in the United States, and there is going to be a lot of concern from civil rights organizations if you don't think about the racial implications of what you're doing.

MR. GAINER: In that mistrust area I think it's a confusing message that we are sending I think especially to police officers because over my years I've seen dramatic changes in the way police and minorities interact, and we got to the point where our officers were very race neutral, lifestyle neutral, and some of the practical implications of the statistics is then asking the police to ask the race. It wasn't very long ago that the race was on everybody's driver's side, and as we talk about hate crimes or racial profiling, one assumes that one can tell one's race, and it's obviously a continuum about whether one looks black or white or Indian or anything else and lifestyle issues.

So we've tripped over ourselves to get officers to stop doing that, and now we're beginning to tell officers what I want you to do if we're investigating a hate crime is to say are you gay or lesbian because I can do something different with it than are you black or white, and you talked about the reaction of are you black or white?

MR. BUTLER: It's a tough issue. It comes up in all kinds of civil rights contexts. The argument goes I thought we were supposed not to think about it. Now you're saying we should especially focus on it. The problem is a problem that is racial. There can't be a nonracial solution is the common sentence; that it's not a color blind problem, so you can't have a color blind solution, but it is tough and there is a certain rhetorical inconsistency. We have to move beyond this by focusing on race.

MS. ABRAMSON: We are now scheduled for a break, so let's make it short one.

(Whereupon a brief break was taken.)

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