President Joe Biden is facing a difficult path on police reform as calls from activists mount for his administration to make a priority of tackling racial disparities in law enforcement.
The nation’s attention is fixed on the issue amid the trial of Derek Chauvin, the white former Minneapolis police officer who has been charged in the death of George Floyd, whose killing on Memorial Day spurred months of Black Lives Matter protests. A verdict could come as soon as next week.
Chauvin’s trial came amid a spate of high-profile police killings. During the trial, another Black man, Daunte Wright, was shot and killed by police officer Kimberly Potter in nearby Brooklyn Center, Minnesota, sparking protests. Potter, who claimed that she thought she was using a Taser, has since resigned and been charged with second-degree manslaughter.
Protests escalated around the country after footage of the fatal shooting of 13-year-old Adam Toledo by Chicago police Officer Eric Stillman was released last week. Toledo, who was Latino, was killed on March 29.
More than three people have died each day at the hands of law enforcement since March 29, according to a tally maintained by The New York Times. Black and Latino people accounted for more than half of those killed during that period, the Times said.
Biden, who pledged to overhaul the nation’s criminal justice system during his presidential campaign, has in his first months done little to please those hoping for reform. The Democrat, who earned a reputation for being tough on crime while in the Senate in the 1990s, faces political and legal headwinds.
At a press conference on Friday, Biden dodged answering a question about whether he would prioritize police reform, instead of focusing on gun violence, which he was also asked about. White House press secretary Jen Psaki declined on Wednesday to say why the administration hadn’t taken executive action to recall federal military equipment from local police departments.
She said the White House was focusing on what could be done with Congress, specifically via the George Floyd Justice in Policing Act. The bill, among other things, would prohibit choke holds and no-knock warrants at the federal level, limit them at the state and local level, and restrict the use of qualified immunity, a legal shield for police against civil suits.
“I would say this is an issue that will be a cause of President Biden’s time in office,” Psaki said. “And we are less than 100 days in. There’s more to come. Right now, our focus is on working toward getting that legislation passed.”
Also Wednesday, the administration dropped plans, announced during the campaign, to create a police oversight commission. Susan Rice, director of the Domestic Policy Council, said in a statement first reported by Politico that the commission “would not be the most effective way to deliver on our top priority in this area, which is to sign the George Floyd Justice in Policing Act into law.” The administration said civil rights groups and police unions were against the creation of a commission.
On the legal front, the role of the federal government in overseeing policing is limited by the Constitution and Supreme Court precedents. While there are fewer than 100 federal law enforcement agencies, there are about 18,000 under state and local control. Congress does have some power to regulate local police agencies in exchange for federal funding and to enforce the 14th Amendment, which prohibits states from depriving “any person of life, liberty, or property, without due process of law.”
On Friday, Attorney General Merrick Garland reinvigorated one tool the federal government has to oversee local police departments by rescinding a memorandum signed under former President Donald Trump limiting the use of so-called consent decrees. The Justice Department can use the decrees, which must be approved by a court, to force departments that repeatedly violate civil rights to undergo monitoring or other reforms.
However, the decrees were rarely used even before Trump significantly curtailed them. A report by the Congressional Research Service found that the Justice Department has historically launched about three pattern-or-practice investigations a year, and only 1 in 3 has led to significant reforms.
Advocates and experts have suggested that Biden could pursue some reforms at the federal level that would have an impact more broadly on state and local police departments.
In February, two law professors who specialize in policing issues wrote in the Los Angeles Times that Biden could, via executive order, make federal law enforcement agencies a “a model for the rest of the nation” on transparency and accountability by collecting more data and making it available to the public.
The professors, Barry Friedman of New York University School of Law and Rachel Harmon of the University of Virginia School of Law, also called on the Biden administration to require local police agencies seeking federal money and equipment to get approval from their local legislature.
“A police chief should not be allowed to obtain federal surveillance equipment or armored vehicles without local buy-in,” they wrote, adding that Biden could make the move without Congress.
Political concerns also stand in the way of meaningful police reform.
During the 2020 campaign, Republicans used calls from some progressives to “defund the police” as a political hammer against moderate Democrats. One of Biden’s top allies in Congress, Rep. Jim Clyburn, D-S.C., said that the slogan hurt his party.
Biden has repeatedly said he does not support proposals to reduce police funding, though his administration continues to face blowback from Republicans over the issue.
Kristen Clarke, Biden’s nominee to oversee the Justice Department’s civil rights division, was pressed last week at her confirmation hearing over an opinion article she wrote calling for defunding certain police operations while adding more funding to others.
“I do not support defunding the police,” Clarke said at the hearing, in an exchange with Sen. Ted Cruz, R-Texas.
Clarke is the president of the Lawyers’ Committee for Civil Rights Under Law.
The political thorniness of police reform is amplified by the narrow divide in Congress between Democrats and Republicans. Democrats hold a slight majority in the House, where they were able to pass the Justice in Policing Act last month by a 220-212.
However, the Senate is evenly divided 50-50. While Vice President Kamala Harris can cast tie-breaking votes, it’s still unlikely Democrats would be able to pass the legislation in the upper chamber without significant changes. The bill would likely need 60 votes in the Senate to become law.
Republicans last year put forward their own proposal on police reform, which differs in meaningful ways from the legislation introduced by Democrats. Sen. Tim Scott, R-S.C., the only Black Republican in the Senate, introduced the Justice Act in June.
The Congressional Research Service, which analyzed the differences between the Democratic Justice in Policing Act and the Republican Justice Act, found that they both addressed “certain common issues” like no-knock warrants and choke holds.
But, the analysis found, the two bills took different approaches, with the Democratic bill more frequently requiring recipients of federal funding to place restrictions on state and local law enforcement and the Republican bill relying instead on “non-binding measures” and placing more of an emphasis on “gathering data on various law enforcement practices.”
The American Civil Liberties Union has criticized the Republican bill for not going far enough. In a statement released when the bill was introduced in June, a representative for the group said the legislation “throws billions of dollars at studies and commissions when we know the real problem at the core of American policing — Black people continue to die at the hands of police without consequence.”
