What the Biden Administration Can Do on Police Reform Without Congress
This piece ran in the Los Angeles Times on February 16, 2021, and is re-posted with permission from the publication.
One of the big campaign promises Joe Biden made last summer as Americans took to the streets to demand racial justice was policing reform. He had to walk a careful line between activists who wanted to defund the police and many others who wanted to make more modest adjustments to police policies. Now, caught in the middle, the risk is the new administration might end up accomplishing far less than it should.
Policing reform efforts tend to respond to the latest dramatic failure. Take chokeholds. Since George Floyd’s killing in May, states and localities have adopted or considered bans on neck restraints. These new laws make good sense, but they hardly make a dent in the bigger problem: unnecessary uses of force. Or take no-knock warrants, which was involved in the killing of Breonna Taylor. Cities and states are responding to that case by banning those kinds of warrants. But if cops can just knock quickly and storm into a home, such bans offer little improvement in safety.
Comprehensive state legislation on the use of force would go beyond these limited solutions. Such a statute would guide departments and officers, clarifying when force can be used and requiring de-escalation. It would not just limit chokeholds, but would regulate all force techniques, from the use of warning shots to the use of Tasers, pepper spray and rubber bullets. It would require that officers report using force, intervene to prevent excessive force, and provide medical aid when they can. And it would mandate outside investigations of serious uses of force and public disclosure of policies and data. But without a federal push, most states will not do this much.
This nation needs strong federal legislation on policing, but is unlikely to get it. Congress has the power to deal with pervasive policing problems that exist everywhere in this country, such as the overuse of force, racial profiling and invasive surveillance. Yet even with Democratic control of the Senate, political gridlock is likely to block meaningful policing reform.
So the Biden administration will have to set out on its own, accomplishing what it can without Congress. There are significant reforms that can be accomplished, which are well within the president’s power.
First, get the federal house in order. Federal law enforcement agencies are often worse than state agencies in resisting best practices. Policing suffers generally from a lack of transparency, a lack of good data, and a lack of basic accountability for officers who engage in the worst conduct. The more than 80 federal law enforcement agencies have all of these problems. It is difficult, if not impossible, to get even basic information, such as their use-of-force policies or disciplinary procedures. Even when federal agencies collect data — on racial disparities in stops and arrests, for example — they do not give it to the public.
President Biden could change this by executive order, mandating that every federal agency meet standards for transparency, accountability and data collection. Federal law enforcement should be a model for the rest of the nation, rather than lagging behind.
Second, stop federal agencies from undermining local police accountability. Right now, joint federal-local task forces assembled to fight things like drug crime often hide who is in charge, what rules apply and how citizen complaints are handled. The Biden administration could require strict and public guidelines on how these multi-agency task forces operate. It also should require that local police agencies seeking federal grants and military-grade equipment get approval first from local legislative bodies such as city or county councils. A police chief should not be allowed to obtain federal surveillance equipment or armored vehicles without local buy-in. Biden could also make these changes by executive order.
Third, stop subsidizing harmful policing by state and local agencies. There have been many calls to eliminate or restrict the Defense Department’s program that gives surplus military equipment away free to police departments — a big reason for over-militarized local police. Programs, like this one, should be evaluated for whether they have been used in ways that conflict with federal civil rights priorities or exacerbate existing policing problems.
Other programs can also encourage bad policing. For example, the federal equitable sharing program effectively pays local departments to engage in asset forfeiture, even when states do not allow departments to profit from forfeitures under their own laws. Those forfeitures deprive people of property with limited protections and can distort policing priorities. Local agencies are allowed to use the money to obtain surveillance equipment or pay informants, yet cities are restricted when they want to use the money to fund public safety efforts besides policing. Biden should order a review of these programs and revise them as appropriate.
It is often said that policing is a local matter, and the federal government should tread lightly. But in the past half-century, the federal government has played a big role in shaping local policing, worked to expand it and directed it toward federal priorities — sometimes with disastrous consequences, as with its war on drugs. It’s about time that the federal government took more responsibility for steering the 18,000 law enforcement agencies nationwide toward policing that is less harmful and more democratically accountable.
Barry Friedman is a professor and faculty director of the Policing Project at New York University School of Law. He is the author of “Unwarranted: Policing Without Permission.”
Rachel Harmon is a professor and director of the Center for Criminal Justice at the University of Virginia School of Law. She is the author of the “The Law of the Police” and served as a federal prosecutor in the Department of Justice’s Civil Rights Division.
Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.