The recent announcement that the Senate had failed to craft a bipartisan police reform bill is disappointing, but unfortunately, not surprising.
The murder of George Floyd and the killing of Breonna Taylor at the hands of those charged with protecting them invigorated a nationwide call for reform. But for the past several months, advocates have watched as this historic consensus for congressional action has fallen apart. Much-needed and widely supported policies were unable to bridge the partisan divide as protests declined, Congressional priorities shifted, and “tough-on-crime” rhetoric escalated in response to public marches. Yet again, opponents to officer accountability were able to frame the debate as a false choice between supporting law enforcement and reforming police.
But even as the Senate fails to pass a bill at the federal level, we are still seeing bipartisan momentum for policing reform in the state and local governments that directly govern our nation’s decentralized 18,000 police agencies. Earlier this year, Illinois, Washington and Maryland, for instance, passed significant policing reform bills. More recently, a bipartisan effort in North Carolina led to meaningful legislation that was signed by Governor Cooper. Other policymakers across the country are working on their own efforts.
With support from Arnold Ventures, the National Conference of State Legislatures has created a state-by-state database to track this sort of law enforcement legislation, including policing bills and executive orders. Nearly 2,400 such bills are documented in the database for this year alone. The bills touch on issues related to officer certification and decertification, data and transparency, investigations and discipline, oversight, and use of force, among other areas. This abundance of legislation demonstrates the continued vitality, urgency, and relevancy of police reform at the state level — and the many opportunities that exist to enact meaningful change.
To assist in this effort, Arnold Ventures has supported the Policing Project at NYU School of Law to create model legislation on issues ranging from use of force to data collection and transparency to decertification of officers who commit misconduct. With the failure of the Senate to find agreement, states now have the opportunity to step up as national leaders on fair and effective policing by writing and passing the laws and policies that will set a new high bar for transparency and accountability.
Executive Action
There also remains significant opportunity to implement and facilitate national police reform through executive action. Even with America’s highly decentralized and dispersed policing structure, the president has a number of levers that can influence local policies. Many of these measures are long overdue and — in some good news — a few are already being implemented.
- Federal grants remain an underutilized carrot and stick for promoting effecting police reform at the local level. The Department of Justice’s Office of Community Oriented Policing Services (COPS), Office of Justice Programs (OJP), and Office on Violence Against Women (OVW) award hundreds of millions of dollars to local, state, and tribal police each year. The COPS office alone has awarded more than $14 billion in grants and support since it was established in 1994. In addition to shaping national policing priorities and agendas through calls for proposals and program design, the DOJ can require recipients to report on and comply with civil rights protections, including on racial discrimination and bias-based policing. In fact, the department recently announced a 90-day review to “examine whether it was doing enough to ensure that federal funds were not distributed to law enforcement organizations that engage in discrimination.” Following this review, the next logical step will be to require compliance and good faith efforts to address any identified problems as a condition for awards.
- The federal government can also improve its investigatory and enforcement powers through reconsidering their pattern or practice investigations, and the use of consent decrees and federal monitors. Earlier this year, Attorney General Merrick Garland announced new, robust guidelines to rein in unconstitutional and abusive policing in departments put under federal oversight. But the DOJ can do even more to promote accountable and transparent law enforcement by improving its use of consent decrees. As they’re currently used, consent decrees are expensive and there is little evidence they reduce police violence on their own, especially once they come to an end. Consent decrees should be strengthened by engaging in deeper and more comprehensive investigations, setting a clear sunset and parameters, avoiding unnecessary additional funding and technologies for departments unrelated to reforms, and meaningfully incorporating community demands. The federal government should consider other approaches to addressing police violence, such as better supporting independent state pattern and practice investigations.
- Finally, the executive branch can reform federal law enforcement agencies, such as U.S. Customs and Border Patrol, the U.S. Marshals Service, the Drug Enforcement Agency, and U.S. Immigrations and Customs Enforcement. We’re already seeing some much-needed changes, such as recent restrictions on the use of chokeholds and no-knock entries. However, as was on graphic display recently with the Border Patrol’s aggressive use of horses on Haitian refugees and migrants in Texas, as well as a recent inspector general disclosure that Border Patrol staff had falsified welfare check records leading up to the death of child detainee, there remains a serious need for further action. This action must involve holding federal law enforcement agents accountable for engaging in misconduct and gratuitous use of force. Litigation brought by the Institute for Justice is working to hold abusive federal agents accountable, but this should not be left to litigation alone. Agency heads must set strict and clear measures curtailing officer misconduct and abusive use of force and hold them accountable, including through dismissal and prosecution when appropriate. It’s encouraging to see the President nominate longstanding police leaders who have championed reform to federal leadership posts, including Ron Davis, who was just confirmed by the Senate to lead the U.S. Marshals, Tucson police chief Chris Magnus for CBP, and Harris County Sheriff Ed Gonzalez for ICE. Their confirmations will signal that the federal government is serious when it talks about responding to demands for fair and effective policing. After all, reforming federal law enforcement is about more than changing the practices of these specific agencies. Leadership from the top will set an example for state and local jurisdictions that are looking for credible references to base their own reforms. Setting a high bar at the federal level will have a significant influence further down the governmental ladder.
Change never happens all at once — it comes one step at a time. While a federal policing reform bill would have made significant progress for setting national standards on officer conduct, accountability, and transparency, state and local policymakers and advocates aren’t waiting for Washington to start moving forward. The White House has plenty of opportunities to create its own local incentives and also set federal examples. The cause is too important, and the need is too great, for policing reforms to slow on account of the Senate’s failure to act.
