Originally published June 22, 2020. Updated June 29, 2020
The killings of Rayshard Brooks, George Floyd, Breonna Taylor, and Ahmaud Arbery by police officers have catapulted the issues of racial justice, police violence, and systemic racism to the forefront of this nation’s awareness. For the past several weeks, hundreds of thousands of Americans have marched through the streets of their cities and towns demanding racial justice, an end to police violence, and an end to systemic racism. Mayors and city council members, county elected officials, and governors across the country have also grappled with how to respond. So too has the president, senators and representatives.
On June 8, House and Senate Democrats introduced the Justice in Policing Act (H.R. 7120). On June 16, the president signed an executive order requiring police departments to take certain actions to help reduce police violence. On June 17, Senate Republicans introduced their own version of police reform legislation entitled Just and Unifying Solutions to Invigorate Communities Everywhere Act of 2020 or JUSTICE Act (S. 3985).
In an unprecedented move, chairman of the Federal Reserve Bank, Jerome Powell, told members of the Senate Banking Committee on June 16 that there is no place for racism at the Federal Reserve or in American society in general, that racism is holding the economy back, and added that any post-COVID-19 pandemic economic recovery must include all Americans regardless of race.
On June 25, 2020, the House passed, largely along party lines, the Justice in Policing Act which would dramatically reform policing in the United States if it became law. The day before, however, Senate Republicans were unable to move their version of police reform legislation -– the JUSTICE Act — after most Senate Democrats voted to prevent the bill from coming to the floor for debate. Democrats noted that the bill did little to ensure legal accountability in cases of police misconduct. Senate Minority Leader Chuck Schumer and Senators Kamala Harris and Cory Booker (who have been leading Democratic efforts in the Senate) said in a letter to the Senate Majority Leader Mitch McConnell that “[The Senate Republican] bill is not salvageable and we need bipartisan talks to get to a constructive starting point,” Unfortunately, the two parties have yet to make progress toward a compromise.
At this point it remains unclear as to how Senate Republicans will respond, and whether there is any chance of compromise between Republicans and Democrats. However, what does seem clear is that Senate Republicans face increased pressure to draft legislation that can gain the support of both parties.
The Justice in Policing Act of 2020 (H.R. 7120)
The House Democratic bill is by far the more aggressive attempt to address racial justice, police violence, and systemic racism of the bills introduced and the president’s executive order.
It would strengthen police accountability by:
• Making it easier to prosecute law enforcement officers;
• Permitting individuals to recover damages when law enforcement officers violate their constitutional rights;
• Giving the Civil Rights Division of the U.S. Department of Justice and fund state attorneys general to look into the “patterns and practices” of police departments;
• Providing state attorneys general to independently investigate law enforcement misconduct or excessive use of force;
• Requiring the U.S. attorney general to create law enforcement accreditation standards and best practices, study discriminatory patterns and practices, gather data on a range of police behaviors, and establish a Department of Justice task force to coordinate federal, state and local prosecutions of police officers.
It would make policing more transparent by:
• Creating a federal registry of all federal, state and local law enforcement officers that compiles misconduct complaints, as well as discipline, termination, and certification records;
• Requiring states to report any use of violence incidents against civilians or law enforcement officers;
• Providing technical assistance grants to smaller law enforcement agencies to help them comply with data gathering requirements.
The bill would improve police training and policies by:
• Prohibiting federal state and local law enforcement officers from using racial, religious and discriminatory profiling;
• Establishing best practices to discourage profiling;
• Providing training on racial bias;
• Banning no-knock warrants in drug cases;
• Banning chokeholds and carotid holds;
• Requiring that the use of force standards be used only as a last resort;
• Ending the “militarization” of law enforcement;
• Requiring federal police to use body cameras, and requiring states and local law enforcement to use federal funds to ensure that use of policy body cameras.
Finally, the bill would make it a federal crime to conspire to violate existing hate crime laws.
The Justice Act of 2020 (S.3985)
Like the Justice in Policing Act, the Justice Act was drafted in response to recent demands for police reform, but would not make some of the more dramatic changes found in the House Democratic bill. However, there are some similarities. Both bills would:
• Call for increased data collection by police agencies, particularly in instances where deadly force is used;
• Provide for more training for law enforcement officers; and
• Would provide incentives for law enforcement officers to wear body cameras.
The Senate bill would:
• Encourage restrictions on the use of chokeholds, rather than ban them;
• Continue to provide police with “qualified immunity,” thereby maintaining the legal protections to police officers for their actions in situations in which citizens are seeking damages for violations of their constitutional rights;
• Provide for de-escalation training for police officers, instead of prosecution, if improper actions are taken;
• Update hiring and retention procedures within police departments;
• Require police agencies to report on the use of no-knock warrants rather than banning them; and
• Make lynching a federal crime; and
• Create two commissions to study and offer solutions to a broader range of challenges facing black men and boys, and the criminal justice system as a whole.
• Create a training program to address racial bias in policing, rather than prohibiting it altogether.
The President’s Executive Order
The Executive Order addresses four major categories.
The first, certification and credentialing, would require that states and local law enforcement agencies “constantly assess and improve their practices and policies to ensure transparent, safe, and accountable delivery of law enforcement services to their communities.” It includes a recommendation that states and localities use independent credentialing bodies that “can accelerate these assessments, enhance citizen confidence in law enforcement practices, and allow for the identification and correction of internal deficiencies before those deficiencies result in injury to the public or to law enforcement officers.” The executive order would require state and local law enforcement agency’s review their use-of-force policies to be certain that they comply with all applicable Federal, State, and local laws and prohibit the use of chokeholds except in those situations where the use of deadly force is allowed by law.
The second, information sharing, would require that the U.S. attorney general create a data base that would enable federal, state, local, tribal, and territorial law enforcement agencies to share information about the excessive use of force. Perhaps most importantly, it would include a mechanism to track terminations and de-certifications of law enforcement officers who have criminal convictions and civil judgments against them for excessive use of force so that law enforcement agencies don’t hire these individuals.
The third section, mental health, homelessness, and addiction would require law enforcement agencies to utilize appropriate social services when responding to individuals suffering from impaired mental health, homelessness or addiction, and to provide their local law enforcement officers with the training they need to respond accordingly. As in previous sections, training would make up a major part. The order would also require the secretary of health and human services to survey community-support models addressing mental health, homelessness, and addiction and provide the president with a report on the survey including recommendations as to funds can be reallocated to address the mental health, homelessness, and addiction needs of residents.
The final section, legislation and grant programs, would require the administration to develop and propose new legislation that would improve law enforcement practices and build community engagement.
The goal of the legislation would be to assist state and local law enforcement:
• Develop and implement a credentialing process;
• Provide technical assistance to improve use of force policies and procedures;
• Retain high performing law enforcement officers;
• Provide police with was of confidentially accessing mental health services for law enforcement officers; and
• Fund programs to build better relationships between police and the communities they serve.