Congress fails on police reform. Now what?

5 minute read

Police officers look on as demonstrators march for racial justice and police reforms in Washington, U.S., April 23, 2021. REUTERS/Evelyn Hockstein

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(Reuters) - The promising effort to reform American policing that was trumpeted as an all-out endeavor in Congress following the largest racial-justice protests in a generation has culminated into nothingness.

So where do things go from here?

Democratic Senator Corey Booker on September 22 figuratively threw his hands up, saying efforts to craft legislation to address our national crisis of abusive and racist policing had failed. Negotiations toward a bipartisan compromise hadn’t just stalled – they effectively moved backward, said Booker, who led negotiations for Democrats.

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His counterpart, Republican Senator Tim Scott, said he was deeply disappointed and pointed to a call to "defund the police" as the problem.

“Democrats said 'no' because they could not let go of their push to defund our law enforcement,” Scott said on September 22, referring to activists’ push to redirect police funds to other community needs.

None of Democrats’ proposals during the months-long negotiation actually sought to defund police, by the way.

And yet, here we are.

The end of the negotiations marks an abject failure on Congress’ part, and it’s a strong indicator that reform on the federal level remains a Sisyphean task. By all appearances, police and criminal justice reform will remain a largely local issue, at least for the foreseeable future.

Christy Lopez, former deputy chief of the Justice Department’s civil rights division and now professor at Georgetown University Law Center, said she remains hopeful because of new possibilities at the local level. Lopez has led multiple investigations of police departments, including in Chicago and Los Angeles, for patterns of unconstitutional policing.

"Congress has been stalled on so many fronts for so long that it's kind of a good thing we don't need to go through Congress to fix policing," Lopez said. "There's been more acceptance of the idea that we need to end our over-reliance on police to have more effective policing than at any other time in my career, and that gives me some hope."

Lopez cited as an example a recent announcement by John Choi, the Ramsey County attorney in St. Paul, Minnesota, that his offices would stop prosecuting felonies stemming from low-level traffic stops - like for a broken tail light.

DeAnna Hoskins, a former policy adviser to the Justice Department and president of JustLeadershipUSA, said she was somewhat optimistic about the latest federal reform efforts -- at the start.

“I think the public acknowledgement that there is something fundamentally wrong with the way policing operates was huge,” Hoskins said. “But even in the bills that were proposed, as people who are directly impacted, we didn’t see anything that would improve and save lives. And remember, this came from the murder of George Floyd.”

But given the track record on police reform from Congress, and especially Republicans, it's no wonder that skepticism about meaningful change this go-around was abundant from the outset.

Back in 2018, lawmakers passed what both parties described as the most significant criminal justice reform legislation in a generation in 2018, for example. But that bill was merely remedial: Congress passed the First Step Act to correct unjust disparities in sentencing caused by a racially biased law Congress enacted in the 1980s. Moreover, that “generational” reform bill was botched, largely because of Republicans’ opposition, and Congress went back to the drawing board just last week.

Congress’ repeated consideration and failure to pass another criminal justice reform measure – one that’s squarely about extrajudicial killings of Black people – is also instructive: Although the U.S. has issued a rare formal apology to Black Americans for refusing more than 200 proposals over decades to make lynching a federal crime, it has never actually made lynching a federal crime.

The latest negotiations, too, never made much apparent progress, despite lawmakers’ idealistic tone.

Just two months in, Senate Republican Minority Leader Mitch McConnell signaled that he opposed modifying qualified immunity – Democrats’ signature proposal, Fox News reported in June 2020.

As talks continued, Scott told Democrats he would back a bill if the Fraternal Order of Police approved it, according to a September 25 NBC News report, which also said that he backed out when Booker garnered the FOP’s endorsement.

It's clear that police reform will not happen on the national level without bipartisan support.

"We're able to get bipartisan agreement on sentencing or drug policy, but when it comes to policing it's been harder to get Republicans on board," said Inimai Chettiar, federal director for the Justice Action Network.

And keen, eyes-open negotiating skills also will be crucial. Hoskins said Democrats hampered their own ability to reach agreement by entering the negotiations with moderate proposals -- leaving little room to accept concessions.

“It was even more disturbing that the talks totally broke down,” Hoskins said. “Do we really want to fix this if it was that easy for everybody to walk away?”

But Chettiar remains hopeful, while recognizing that Congress, at least, is unlikely to have answers anytime soon.

"Bipartisan support for policing reform is just forming, so it might take a while," Chettiar said. "I imagine in a year or maybe sooner this will resurface, and I hope both sides can just agree to pass some legislation at that point."

Lopez added that "what we can expect is a lot of our 18,000 police agencies will try interesting things, and some of those will work politically and empirically, and others will say we can build on this."

"That was always the way this was going to happen," she said.

Opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias.

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com