Police may not comply with bans, changes
Congress’ power of enforcement is limited
WASHINGTON – The national outcry over the deaths of George Floyd, Rayshard Brooks, Breonna Taylor and other Black Americans at the hands of police has Congress moving with unusual speed to debate sweeping reforms such as bans on chokeholds and no-knock warrants.
The bill House Democrats are expected to bring to the floor Thursday goes further than the version Senate Republicans plan to call up this week.
But even if the chambers can agree on a final measure, there’s a real question whether state and local law enforcement agencies will go along.
The proposals rely on the threat of a loss of federal funding for many of the suggested changes. When that has been tried in the past, federal oversight has been slow, and some states have determined that the funding cuts are smaller than the cost of complying.
“We already have examples of penalties leveraged,” said Chris Asplen, executive director of the National Criminal Justice Association, which represents state, local and tribal governments on crime control. “I would suggest they are not as effective as I think the originators would have liked them to be.”
Six years ago, activists pleaded for police reforms after Eric Garner, a 43year-old Black father of six, died after New York City officer put him in chokehold and a Ferguson, Mo., officer fatally shot Michael Brown, an unarmed 18year-old Black man.
Congress responded by requiring law enforcement agencies to report deaths that occur during custody.
But at the beginning of this year, the Justice Department still hadn’t adopted uniform procedures to collect reliable data or penalized any state for not complying.
In another example of the limits of Congress’ power, fewer than half the states are certified as being in full compliance with a 2003 federal law to prevent sexual assaults in prisons. Only 18 have substantially implemented a sex offender registration program, created by a 2006 law, despite the threat of a cut in Justice Department grants for not participating.
The loss of federal dollars is one of the few cudgels the federal government has over state and local law enforcement as regulation is an area the Constitution generally entrusts to the states.
“If you think about the inability to have any grants, if your department has chokeholds, that frankly is, by default, a ban on chokeholds,” South Carolina Sen. Tim Scott said when Senate Republicans introduced their proposal Wednesday.
Congress most recently approved about $900 million for the two grant programs that would be used as leverage, according to the nonpartisan Congressional Research Service.
That’s a significant amount but it’s less than 1% of what’s spent on justice systems at the state and local level. The budget of the New York City Police Department alone is nearly $6 billion.
Under the House and Senate proposals, grant funding would not just be reduced, as has been threatened in some of the past efforts. States and local law enforcement agencies could be barred from receiving anything from top grant programs unless they adhere to some of the proposed new rules.
That has entangled the political debate over whether to “defund” the police.
Democrats are resisting calls from the left to outright eliminate federal policing grant programs while trying to avoid being accused of slashing police budgets.
But congressional Republicans and the White House also want to use the threat of funding cuts as an inducement to change.
The executive order signed by Trump on Tuesday says grant funding shall go only to state and local law enforcement agencies pursuing certifications showing they meet certain standards, including banning chokeholds “except in those situations where the use of deadly force is allowed by law.”
When it comes to Trump’s order, though, the effort to use grants as leverage could face legal challenges.
The White House, for example, is engaged in a separate legal battle over whether it’s allowed to withhold law enforcement grants from “sanctuary cities.”
The United States Court of Appeals for the Second Circuit in Manhattan ruled in February that the administration can block funding to agencies in cities and states that do not cooperate with U.S. immigration authorities. Other appeals courts have said only Congress can make that stipulation.
The police reform bill the House is expected to consider Thursday would condition grant funding on prohibiting the use of no-knock warrants in drug cases and on banning chokeholds. Agencies would have to change their use of force standard from “reasonableness” to only when necessary to prevent death or serious bodily injury.
Senate Republicans would require state and local agencies to restrict the use of chokeholds to cases “where deadly force is authorized.” Funding recipients also would have to report the use of no-knock warrants and report incidents when force is used.
The proposals do include changes that aren’t tied to funding. In one of the biggest differences between their bills, for example, Democrats would make it easier to prosecute police officers for misconduct and allow victims of police brutality to seek damages.
For changes that Congress can’t make directly, one funding pool that would be used as leverage is the Community Oriented Policing Services program, created by the 1994 crime bill. In its latest round of funding, the Justice Department announced it was distributing nearly $400 million to help pay for the hiring of 2,732 officers in 596 law enforcement agencies.
The second program proposed as leverage, the Edward Byrne Memorial Justice Assistance Grant program, distributed nearly $253 million for law enforcement and corrections programs in the last fiscal year. The funding, which is based primarily on crime rates and population, can be used for training, equipment or drug treatment, reentry and mental health programs, and other needs.
Asplen, executive director of the National Criminal Justice Association, which opposes conditioning the grants on specific actions, said the funds are paying for “the kinds of programs that also are necessary to affect the kind of change that we’re looking at.”
In Wisconsin, the approximately $700,000 most recently received by Dane County Sheriff Dave Mahoney is less than 1% of his $84 million budget.
Still, Mahoney said eliminating the funding “would certainly have an impact.”
Mahoney, vice president of the National Sheriffs’ Association, said some sheriff departments already don’t apply for federal grants because they don’t want to be saddled with any requirements.
“It’s certainly something that every leader will have to look at,” Mahoney said. “In my case, I don’t anticipate a mandate being implemented that I couldn’t adhere to.”
But Andrea Edmiston, director of governmental affairs for the National Association of Police Organizations, called the approach shortsighted. At a time when states and local governments have big budget holes, she said, they’re being asked to take on new training and reporting requirements that will be expensive to implement.
“I understand that it’s their only way of really mandating, or trying to mandate, that these policies get put in place and states comply,” she said. “But at the same time, they’re just cutting off their nose to spite their face.”
Still, Daniel Nagin, a criminologist at Carnegie Mellon University’s Heinz College, said the threat of a funding cut can give political cover to agencies that will have to do the tough work necessary at the local level to make changes.
“It’s going to help a reform-minded police chief to build his or her case for these kinds of reforms,” he said.
Rachel Harmon, a former federal prosecutor who now directs the Center for Criminal Justice at the University of Virginia Law School, said the Justice Department has almost never enforced existing laws against racial discrimination by withholding funding from police departments. But there are other ways to change grant programs that could help, she wrote in an email.
Funding streams could be reoriented from “making policing bigger and more effective” to making it “less discriminatory and harmful.” Grants could be conditioned on local civilian approval to give the community more say over police departments that are resistant to public input.
“The political reality is that it is hard for the Justice Department to starve the same departments it is trying to assist,” Harmon wrote. “It just isn’t realistic to expect that this will be a major and lasting lever of reform.”