The trouble with federal police reform

Last year, Atlanta attorney and political strategist Justin Giboney led a group of Christians to form the Prayer and Justice Action Initiative. Giboney said the group hoped to unite Christians and model how to advocate for policy changes, specifically about racial justice. The website encouraged members to sign a doctrinal statement then gather in racially diverse groups to pray for change.

But while the prayer started right away, a change to federal law has yet to appear.

In the weeks following George Floyd’s death in May 2020, Democrats and Republicans in Congress each produced a police reform bill, and bipartisan negotiations began. At various times, both sides expressed confidence that a deal was close. But after months of meetings and exchanging drafts, Sen. Cory Booker, D-N.J., announced last month that the negotiations had failed. The chance for policing reforms is now back in the hands of states, cities, and local police departments—and some experts say that’s a good thing.

Rep. Karen Bass, D-Calif., introduced the George Floyd Justice in Policing Act in the House in June 2020, and the Democratic-controlled chamber passed it days later. The bill would have banned chokeholds and no-knock warrants, restricted military equipment transfers to police departments, and eliminated qualified immunity for police officers. It would also have changed Section 242 of the Title 18 of the U.S. code to increase officer accountability. To hold an officer liable for depriving someone of his or her rights, juries in civil cases would only need to determine the officer’s conduct was “reckless” rather than “willful.”

Sen. Tim Scott, R-S.C., introduced his JUSTICE Act around the same time. It focused on improving police training and data reporting and incentivizing police departments to make other reforms such as banning chokeholds. Although Republicans held the majority in the Senate at the time, Democrats filibustered the bill. They complained the JUSTICE Act was “so threadbare and lacking in substance that it does not even provide a proper baseline for negotiations.” Scott then agreed to work with Booker and Bass to negotiate changes to the Justice in Policing Act so it could pass in the Senate.

Months passed with no results. Qualified immunity and Section 242 became sticking points—Republicans considered them necessary protections for police to do their jobs, while Democrats saw them as shields for police misconduct. President Joe Biden encouraged Congress to pass a reform bill by the anniversary of George Floyd’s death, but May 2021 came and went with no progress.

Four months later, Booker announced the negotiations had failed due to disagreement over police funding. Scott said that Democrats wanted to allow federal officials to reduce funding to police departments that failed to meet certain standards, but Republicans weren’t open to such proposals: “When you tell local law enforcement agencies that you are ineligible for money, that’s defunding the police.”

Charles Fain Lehman of the Manhattan Institute wrote that the collapse of negotiations pointed to the split in the Democratic Party between moderates and the party’s radical left wing. When House Democrats passed the George Floyd Justice in Policing Act again in March 2021, the Movement for Black Lives—a coalition of more than 150 organizations (including Black Lives Matter)—criticized it as too incremental.

“Top Democratic leaders, including Biden, seem to understand that the ‘defund the police’ movement is electorally poisonous,” Lehman wrote. “But its continued presence—among the activist base and among certain hardline elements of the party—will likely continue to weigh down efforts at more staid reform, long after popular enthusiasm has fizzled.”

Justin Giboney was disappointed in Congress’ failure: “Both the Justice Act and the George Floyd Act were better than the status quo,” he told me by email. The Prayer and Action Justice Initiative was pushing for several reforms, including chokehold bans and more de-escalation training for police. Giboney said Congress must prioritize police reform, not “put it on the back burner just because the streets aren’t filled with protesters today.”

Many cities and states have tackled police reform on the local level in the past year, and some think that approach will prove more effective in the long run than federal action.

Randy Petersen, a retired police officer, told me last year that an executive order issued by former President Donald Trump had covered most of the law enforcement policy areas the federal government can influence. Other changes could best happen as local departments reform hiring and training practices and learn their communities’ priorities and expectations, he said: “That’s not as exciting as saying, ‘Let’s just defund the police.’”

This year, local leaders in many cities have reversed funding cuts that came in response to last year’s “defund the police” movement. The reversals came as cities grappled with an increase in crime amid an alarming level of police officer attrition.

Rafael Mangual, a policing researcher who also works at the Manhattan Institute, said local jurisdictions across the country are already making reforms—a better approach than a uniform federal mandate for the country’s 18,000 police departments.

“If we have a kind of blanket mandate across the country, and you put all your eggs in one federal basket, the risk is that if that reform goes bad, then everyone suffers,” he said. “Whereas, you know, if you allow states and localities to do this on their own, you can get a sense of what works and what doesn’t.”