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Expert Brief

What the Federal Government Can Do to Help Fix Policing in America

Policing is local, but the need for change is so vast that it is a national project.

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Drew Angerer/Getty

Thousands of people each year are funneled into the criminal justice system because of the deep-seated structural racism that we continue to witness today in America. The entrance point is virtually always through interactions with police, which tend to be far more dangerous — and even deadly — for people of color. With the egregious violence against protesters in the past weeks and the killings that preceded it and continue, it seems like many officers have forgotten that their purpose is to serve. It doesn’t have to be this way.

The racial disparities in our justice system are vast. For example, 1 in 3 Black men are incarcerated in their lifetimes compared to 1 in 17 white men. Our country’s racism is evident in the number of Black men and women who are killed without justification by law enforcement officers. A mapping of police violence illustrates that a Black American is three times more likely to be killed by police officer than a white American and nearly twice as likely to be killed than a Latino person.

In 2019, nearly 1,100 Americans were killed by police. Black people represented 24 percent of those killed, despite making up only 13 percent of the population. The recent murders of George Floyd and Rayshard Brooks, because they were caught on video, translated these statistics into an undeniable reality. It is time to end the violence and fear that Black people and communities of color endure from our nation’s law enforcement officers.

Protests in hundreds of cities across the country illustrate the growing desire of Americans to see real change. As we see how police are armed with military equipment more suited to a war zone than our neighborhoods, there have been heightened calls to redirect the significant funding streams that have allowed our police forces to grow so large in the first place. There are conversations underway about “defunding the police” and what that entails. Many see this as a reallocation of resources, while others say that they want to actually abolish the police altogether.

Advocates and police departments themselves are also looking to strip away the extraordinary legal protections officers rely on that often make it difficult for the public to view disciplinary records and allow most officers to keep their jobs despite misconduct. These protections are vigorously guarded by police unions, making them frequent obstacles to reform. For this reason, the Minneapolis Police Chief recently announced that his police department will withdraw from contract negotiations with the police union. And last week, New York repealed a 44-year-old law that protected the personnel files of police officers, firefighters, and correctional officers from disclosure, which prevented the public from seeing police disciplinary records.

Real reform faces a variety of challenges — among the largest being that policing is inherently local, and there are 18,000 police departments in this country. However, federal oversight of police departments can be a significant tool for helping police departments examine and reform how their officers interact with the community.

This intervention often produces significant systemic changes in police departments and forces them to address racial bias and reform use-of-force policies. Under Trump, the Justice Department has shirked its duty to play an important role in investigating and working with police departments to examine and reform their practices.

In the wake of the uprising following the 1992 acquittal of the white Los Angeles police officers who were videotaped beating Rodney King, Congress passed the Violent Crime Control and Law Enforcement Act. This law authorizes the Justice Department to step in when police engage in “a pattern or practice of conduct” that deprives people of their constitutional rights. These cases allow the Justice Department to enforce rights defined and protected by the Constitution in addition to other federal laws. Since 1994, DOJ has launched 70 investigations into state and local law enforcement agencies and has negotiated 40 reform agreements, half of which are court-enforced consent decrees.

The Trump administration has dramatically pared back federal oversight of the police. During President Obama’s tenure, the Justice Department’s Civil Rights Division opened 25 investigations into local police agencies. However, Attorney General Jeff Sessions made it difficult for the Justice Department to open new pattern-or-practice investigations. In fact, on the very day the he resigned, he signed a memo detailing the narrow circumstances under which DOJ can enter into a consent decree. Since President Trump took office, the Justice Department has publicly announced only one pattern-or-practice investigation into a police department.

Additionally, the Justice Department has another tool for working with police departments to implement large-scale reforms, but the Trump administration has rolled that back as well. For many years, the Collaborative Reform Initiative in its Office of Community Oriented Policing Services (COPS) spearheaded police reform by “undertaking assessments of a law enforcement agency’s operations, providing recommendations for reform, and assisting the agency in implementing those reforms.”

Through this program, which had widespread support from police chiefs across the country, the Justice Department avoided complex and lengthy litigation by working with cities to reform policing practices. The COPS’s Office worked with cities including Las Vegas, Philadelphia, Milwaukee, and San Francisco.

In 2017, however, Sessions announced that the COPS Office would abandon this practice and discontinue the significant work that began under the Obama administration. At that time, 16 police departments across the country had signed up for the program. According to the New York Times, the “initiative was popular enough among chiefs that there was a monthslong wait to join it; now, the Justice Department has told at least one city that it must file a public records request even to see the program’s research on its police department.”

Trump also reversed an Obama administration policy that limited a program that allows the military to transfer surplus military equipment such as armored vehicles and grenade launchers to local and state law enforcement agencies.

After the killings of Michael Brown in Ferguson and Eric Garner in New York City, President Obama put together a task force to recommend policing reforms. The report recommended many ways for police departments to build trust with their communities and improve officer training and education. But not nearly enough jurisdictions have heeded the advice. In a recent live video address, President Obama urged Americans to press their local leaders to implement the plans.  

The task force also called on law enforcement to create procedures for “policing mass demonstrations that … avoid using provocative tactics and equipment that undermine civilian trust.” The Trump administration’s violent reaction to the protests in Washington, which included U.S. Park Police using force to remove peaceful protesters from Lafayette Square in front of the White House, shows just how much the federal government has ignored the recommendations. It needs to reverse course immediately and start pushing police at all levels to make fundamental changes.

On Tuesday, Trump signed an executive order claiming to address this need. Unfortunately, the order makes only cosmetic changes, says nothing about the pervasive racial disparities in policing, and makes no move toward accountability for police misconduct. Far, far more must be done.

While no single law can resolve the current crisis in policing or redress centuries of structural discrimination and violence, House Democrats have taken a first step toward meaningful police reform in the United States. Speaker Nancy Pelosi and members of the Congressional Black Caucus recently introduced the Justice in Policing Act of 2020, a legislative package aimed at ensuring structural change to policing practices and increasing departmental accountability.

The bill includes measures to increase personal consequences for bad cops. It would establish a National Police Misconduct Registry to prevent problematic officers who leave one agency from moving to another jurisdiction without any accountability. It would also weaken “qualified immunity,” which protects officers from being sued when they violate people’s rights. And it would strengthen DOJ’s oversight responsibilities for local police departments (assuming an administration that takes these responsibilities seriously) and require annual use-of-force reporting by local police departments.

These are just some of the steps needed to rein in police. But changes in police departments are only one piece of the larger challenge of ensuring that all communities in America can thrive, especially communities of color.

As it currently exists, the criminal justice system — particularly police and prisons — is a self-perpetuating machine with little interest in addressing the root problems that they simply treat the symptoms of. Resources need to be reallocated to prioritize solutions that center on dignity and respect for everyone.

That includes putting dollars back into Black communities by investing in affordable housing, schools, and hospitals to target underling factors. This promotes safety from the start rather than relying on police to address problems after they’ve festered. We also need to better fund reentry programs for people released from prison and provide them with housing and jobs. If we invest in community-based programs that support permanent decarceration and diversion from the justice system, it will become clear that the system didn’t need to be so big in the first place.