June 25, 2020

Congress Struggles to Reach Agreement on Competing Police Reform Proposals

House and Senate Bills Differ in Scope and Approach

In addition to supporting certain legislative changes, the ABA has taken other steps to eliminate racial disparities in the criminal justice system.

In addition to supporting certain legislative changes, the ABA has taken other steps to eliminate racial disparities in the criminal justice system.

The death of George Floyd while in the custody of Minneapolis police, combined with widespread protests and civil discord throughout the nation, has helped move police reform legislation to the top of Congress’s agenda, but partisan differences continue to forestall any final action.

The disturbing images of the deadly encounter went viral, leading to more than 2,000 protest marches in all 50 states and at least 60 countries, all at a time that much of the world has been operating under quarantine in response to COVID-19. Although many of the protests have been largely peaceful, numerous incidences of rioting and looting in certain cities also led to an increased police presence and in some cases the mobilization of the National Guard. Some states and local jurisdictions made swift changes to policing practices, and it became clear during hearings on Capitol Hill that there was bipartisan support for action. However, both the scope and the general approaches of the competing reform packages proposed by House Democrats and Senate Republicans differ substantially.

House and Senate leaders advanced their respective proposals by consolidating multiple existing bills on police reforms into two competing omnibus packages, each of which reflects the majority party’s views in that chamber. In the House, Rep. Karen Bass (D-CA) introduced H.R. 7120, the George Floyd Justice in Policing Act of 2020, while in the Senate, Sen. Tim Scott (R-SC) introduced S. 3985, the Just and Unifying Solutions to Invigorate Communities Everywhere (JUSTICE) Act.

Both bills seek to improve law enforcement accountability, transparency, police training, and data collection, but they differ on several key points. For example, while the Democratic House bill would  significantly limit police and correctional officers’ qualified immunity in federal private civil actions and lower the criminal intent standard needed to convict law enforcement officers for misconduct in a federal prosecution from “willfully” to “knowingly or recklessly,” the Republican Senate bill does not include those changes. The House bill seeks to place new limits on officers’ use of lethal force, prohibit racial profiling, ban chokeholds, end the practice of no-knock warrants in drug cases, and require the use of dashboard and body cameras in many cases, along with many other sweeping reforms.  Although the Senate bill contains provisions addressing many of these same issues, it contains fewer mandates or requirements than the House bill and instead focuses more on encouraging additional training and reporting to achieve its objectives. However, both the House and Senate bills also contain numerous provisions that condition states’ eligibility for grants on the adoption of or compliance with certain reforms in the two bills.

The House passed H.R. 7120 on June 25 on a near party-line vote of 236-181, but Senate Republican leaders so far have been unable to begin the floor debate on S. 3985 due to Senate Democratic opposition. Therefore, the fate of either bill remains uncertain.

Meanwhile, President Trump recently issued an Executive Order directing the Attorney General to support credentialing of state and local police, improve information sharing, and enhance officer training and resources for members of the public who may be mentally ill.

The ABA supports certain key aspects of many of the numerous reform proposals currently under consideration. For example, the ABA opposes the use of lethal force except as a last resort; supports independent investigations, robust data collection, and public reporting concerning situations in which lethal force is used; opposes racial profiling by law enforcement and supports measures to reduce it; and supports improved police training to ensure the equitable treatment of youth of color, along with many other reforms.

In addition to supporting certain legislative changes, the ABA has taken other steps to eliminate racial disparities in the criminal justice system. For instance, the ABA Criminal Justice Section, in collaboration with the Department of Justice Bureau of Justice Assistance, launched the Racial Justice Improvement Project in 2010 to identify the exact places in where discretionary decisions were having a disparate impact on racial and ethnic minorities in order to develop evidence-based solutions. And in 2015, the ABA signed a joint statement with the NAACP Legal Defense Fund on the concrete steps that prosecutors, defenders, judges, and law enforcement must take to reduce disparities and improve outcomes for people of color in the criminal justice system.

As part of the inward look on the role of the legal profession in ending racial bias and prejudice, the ABA Task Force on Building Public Trust in the Justice System issued a report in 2017 identifying 12 reasons for public mistrust. These 12 concerns, which were drawn from President Obama’s 2015 Task Force on 21st Century Policing and the Department of Justice, were highlighted to help describe the nature of the harm to society than proposed reforms should aim to heal.

For more information about police reform initiatives, related ABA policies, and the 2017 task force report, please visit  https://www.americanbar.org/advocacy/justice-system/.