Major police reform remains elusive under Biden's executive order

The City Hall Autonomous Zone protest to defund the New York Police Department (NYPD) in Manhattan, New York City
A makeshift barricade is seen near an area being called the "City Hall Autonomous Zone" that has been established to protest the New York Police Department and in support of "Black Lives Matter" near City Hall in lower Manhattan, in New York City, U.S., July 1, 2020. REUTERS/Andrew Kelly

(Reuters) - President Joe Biden signed an executive order last month that the White House said will help hold officers accountable for police misconduct and strengthen public safety.

Biden touted the order as "the most significant police reform in decades" in his remarks ahead of the signing ceremony.

The comment was particularly disheartening, considering the federal government’s successive failures to enact major criminal justice reform and the half-measures in this administration’s most recent effort.

The last bill lawmakers described as the most significant justice reform in a generation - the First Step Act of 2018 - has largely failed to achieve its goals, partly because of resistance from U.S. Justice Department officials.

Biden’s recent executive order represents a fallback for the administration after Republicans and some police groups scuttled more meaningful police reform bills, including the George Floyd Justice in Policing Act of 2020. (Executive orders don’t have the force of law, and they generally apply to federal officers, because the president doesn’t have direct authority over the more than 18,000 local police agencies around the country.)

Indeed, the specific measures in the order are largely symbolic - reaffirmations of existing policy and restatements of current law, without much more.

One notable example is the "new" use-of-force provision. The White House’s order simply requires federal agencies to adopt use-of-force policies “that meet or exceed” those already in place at the Justice Department.

The policy includes an updated duty to intervene when other officers use excessive force, but many of the provisions are based on U.S. Supreme Court precedent from a 1989 case called Graham v. Connor, which allows courts to focus on officers’ subjective perception of danger when assessing lethal force.

The same standard applied in the non-indictment of the officer who killed Michael Brown in Missouri in 2014, and the acquittal of the officer who killed Philando Castile in Minnesota in 2016.

Other major provisions in the executive order are also softer versions of policies Democrats had put forward -- which suggests the negotiations proceeded rather favorably for the police lobbying groups.

The executive order purports to create a new national database of police misconduct, and orders federal law enforcement agencies to submit information, for example. But state and local offices are merely “encouraged to enter their records,” and there isn’t even a provision for broad public access.

That’s not substantially different from previous data-collection efforts. The Death in Custody Reporting Act of 2000, for example, relied on local law enforcement agencies to voluntarily provide data about deaths in prisons, but that effort has largely failed because of non-participation and haphazard record-keeping, according to a June 2020 article in The Appeal.

Additionally, the order’s provisions on the use of chokeholds and no-knock warrants only require agencies to match or exceed the DOJ’s existing policy, enacted in September last year. The body camera policy is also a reiteration of rules the federal government already adopted, in June last year.

Many large state and local police departments have already adopted similar policies; and the DOJ’s guidelines are a limitation, not a ban, on chokeholds and no-knock warrants, as I noted in a previous column.

A number of civil rights advocacy groups, including the NAACP, the National Urban League and the ACLU characterized the order as a necessary step forward, while adding that it’s not a substitute for the broad national reforms they’ve pushed for - a point Biden also made when announcing the order.

The few provisions that seem directly responsive to proposals from racial justice advocates are likely to be ineffectual because they depend on voluntary participation by individual police agencies.

The executive order is better understood as a near-final sign that the Biden administration will not be able to deliver on some of his central campaign promises regarding racial justice, and that police reform will remain largely a state-and-local issue, at least in the short-term.

The White House didn’t respond to requests for comment.

In crafting the order, the White House consulted with civil rights advocacy organizations and two of the largest law enforcement groups in the country, the Fraternal Order of Police and the International Association of Chiefs of Police, according to Terrence Cunningham, deputy executive director of the IACP, and Jim Pasco, the FOP’s executive director.

The tremendous political power that the police constituency wields was on full display in January, when the effort was nearly derailed after conservative website The Federalist published a leaked draft of the White House’s order.

The reason? Police lobbying groups were infuriated by a section that restricted deadly force to situations where the officer has no reasonable alternative, and an introductory statement-of-policy which identified systemic racism as an underlying cause of police misconduct, according to Cunningham and Pasco, and reports in the New York Times and Associated Press in February and May.

Ultimately, much of the introductory language about systemic racism (which doesn’t actually create any obligations for any entities) remained in the final order. But the police groups otherwise had a very successful negotiation.

I asked Pasco and Cunningham whether there was anything in the order that the police groups didn't like or would amend. Both mentioned only the language about systemic racism, and said they were otherwise happy with the order. (Conversely, none of the civil rights groups who participated were as effusive in their public comments about the order).

At best, Biden’s executive order can serve as a floor for future bills – a bare minimum of rules and standards that should be included in any major efforts to reform policing in the years to come – not as a model for “major” police reform.

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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