Over a year after George Floyd’s murder sparked massive nationwide protests against racism and rampant police violence, Congress finally gave an answer on whether it could rise to the occasion, and it was a resounding no. Despite the fact that both Democratic and Republican members of Congress showed up at Black Lives Matter rallies to express their support for the movement — and despite their many speeches and empty gestures, like wearing kente cloths while kneeling on the Capitol floor — any hope of passing federal police reform legislation this year is effectively dead now that bipartisan police bill negotiations have officially collapsed. So with Congress unable to step up to the plate, President Biden and Attorney General Merrick Garland must double down and be more aggressive in their push to reform law enforcement agencies across the country.
Since Biden took office earlier this year, the Justice Department has announced a slate of federal actions that it will take to tackle racist and abusive police practices in order to rebuild the public’s trust in law enforcement. Those include reversing the Trump-era policy to curtail consent decrees, which the department uses to enforce reforms in state and local police departments after investigating them for illegal behaviors such as discrimination or excessive use of force; implementing limits on choke holds and no-knock warrants for federal law enforcement agencies; and opening wide-ranging pattern or practice investigations into at least three major metro area police departments.
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These are all good steps that move the Justice Department in the right direction. But they’re not enough to usher in a new era of American policing. Take, for example, the administration’s announcement on banning choke holds and no-knock warrants. While that’s a needed policy, it’s only just catching up with rules that many local police departments have already adopted. And — putting aside such a policy’s efficacy, since its exception clauses make it difficult to enforce — it doesn’t even apply to all federal law enforcement officers. Immigration enforcement agencies, for example, are exempt, since they fall under the purview of the Department of Homeland Security.
While much responsibility for police reform resides with states and cities that have for too long excused and overlooked incidents of police violence and racism in their ranks, the scope of the problem and the overdue progress demand national leadership. One way the federal government can influence state and local policing is by being a good role model and holding federal officers to higher standards. “The Garland administration so far has focused just a little bit on its role as a leader in policing,” Rachel Harmon, a law professor at the University of Virginia and former federal prosecutor, told the Globe editorial board. “I think it could do much more in that area. Right now, the federal agencies lag rather than lead with respect to transparency.” Indeed, while many local departments make their use-of-force or disciplinary policies public, many federal agencies do not.
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Beyond establishing standards that could make federal agencies a better role model for their state and local counterparts, the federal government also has meaningful leverage to compel reform. While Garland has resumed pattern or practice investigations and consent decrees — a powerful tool that this editorial board endorsed — there’s more the Department of Justice can do, chiefly in its financial leverage over local agencies. Title VI of the Civil Rights Act of 1964 prohibits state and local programs from receiving federal funds if they engage in discrimination, and the Justice Department ought to more forcefully enforce that provision by suspending the distribution of federal funds to agencies until they can prove that no unlawful discrimination is taking place. This would require the DOJ to establish a standard for local police compliance with antidiscrimination laws, and to bolster its ability to review agencies’ data on the effect of law enforcement on protected groups.
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President Biden should also take executive action to reestablish the DOJ’s Science Advisory Board, which was formed by the Obama administration and disbanded by Donald Trump. It was tasked with researching and analyzing data regarding criminal justice programs to better identify problems and inform policy making. Reintroducing such an apparatus could improve the department’s ability to find discriminatory trends in agencies across the country.
And though consent decrees can be highly effective, they often come only after there has been an investigation of a police department facing public scrutiny and community pressure to reform. After all, that is the case with the department’s ongoing investigations of the Minneapolis and Louisville police departments in response to the killings of George Floyd and Breonna Taylor. To reform bad policing cultures before they give rise to incidents that make national news, and to encourage widespread reform, the department should also pursue quicker and smaller-scale investigations, such as going after medium-sized departments for violating specific laws, like engaging in banned excessive use of force. Doing so would show that the federal government will take a much more aggressive approach and could scare more police agencies into better enforcing their own policies so as to avoid a federal probe.
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Finally, the Biden administration should halt the militarization of state and local police agencies and rein in the federal government’s transfer of military weapons to local law enforcement. Though the president had made plans to sign an executive order to do just that early in his term, he has yet to actually sign one.
None of this will be as successful in reforming policing in America as it would have been had it been coupled with federal legislation. That’s ultimately why Congress must not give up on passing police reforms, even if it can’t happen this term. And until then, the Biden administration must not shy away from setting higher standards for police and from pursuing every tool it has to ensure justice under the law.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.
