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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.

Published: June 16, 2020
cops
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 under­ly­ing 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.