Harnessing Federal Power for Police Reform in America

Police kneel alongside a protest in Coral Gables, Florida, on May 30, 2020. Photo credit: That One Photography / Shutterstock.com.

History suggests that the response to the current crisis of policing in the United States must be a stronger role for the federal government. Yet few activists within the Movement for Black Lives are demanding that the federal government flex its coercive muscle. Given the racism of the current occupant of the White House — and also the bottom-up, radically democratic aspirations of many in the movement — this posture is understandable.

Threats from Donald Trump and Attorney General Barr to deploy the U.S. military on unarmed protestors raise legitimate concerns about state oppression. But based on our extensive research on how best to work towards racial equality in areas like voting rights, public schools, and housing, we believe it would be a grave mistake to absolve the federal government of its historically central role in enforcing civil rights through the country.

For any sustained reforms to take hold, campaigners must argue for the redeployment of federal power on behalf of African Americans. Local police reforms simply won’t be enough to protect Black lives.

A first challenge facing any serious reform of the police is the astonishing level of fragmentation of police jurisdiction in America. There are 17,985 law enforcement agencies in the United States. Department-by-department reform may be possible in theory — but not in practice.

Most of these departments are small. The majority of U.S. police departments employ fewer than ten officers and nearly three-quarters have fewer than 25 officers. In contrast, Police Scotland consists of 23,000 employees, 17,254 of whom are police officers. Even in the more fragmented English police service, local police forces will have a minimum of 1,000 officers.

In contrast, less than 0.5% of police forces in the United States have over 1,000 officers (83 out of nearly 18,000). This helps to explain why white suburban and rural Americans have totally different experiences with their police departments than Black men do in America’s big cities.

Second, the political economy of American local government rewards aggressive police tactics. Many local governments in the United States have become dependent on fines, forfeitures, and fees issued by police for minor infractions as a source of revenue. A study of 840 local government authorities with revenues of greater than $100,000 found that police fines account for 10% of general revenues in 583 jurisdictions, more than 20% in 284 jurisdictions, and over half of the total local government budget in 80 jurisdictions. In more than 720 of such localities, police fines exceed $100 per adult resident. As the Ferguson Police Department investigation by the Department of Justice showed, these fines are disproportionately meted out to African Americans.

For lawmakers, these fines are politically welcome: they extract resources from predominantly disenfranchised people while keeping local taxes low for politically powerful, wealthier residents. State efforts to reform these practices have accentuated the problem. In North Carolina, police fines must be used to fund local public schools: this creates the perverse situation that reducing police exploitation of African Americans on the street results in budget cuts for their children’s schools. By the state’s own admission, the Civil Penalty and Forfeiture Fund (CFF) is “a significant source of revenue for North Carolina’s public schools,” worth tens of millions of dollars.

The third impediment to local police reform is the dominance of powerful, anti-reform interests. Local police unions have demonstrated extraordinary strength in securing gold-plated contracts for their members. City councils often “trade” for provisions that obscure police accountability in lieu of pay increases. It is cheaper for a city to offer police officers immunity protections, than it is to increase their pay. In Chicago, the Fraternal Order of Police has successfully negotiated with the cash-strapped city to secure the destruction of police misconduct records after five years; they have also negotiated restrictions on what officers accused of misconduct can be asked by investigators, and secured the right of officers to amend their own statements after a police shooting.

Police also use their local power to target reformist elected officials. Police intimidate local politicians from advocating measures such as greater accountability or reduced funding.

For example, in July 2014, Eric Garner was killed by a New York Police Department officer in a chokehold in spite of Garner’s protestations that he could not breathe. New York Mayor Bill de Blasio’s subsequent modest reform proposals met fierce resistance from the NYPD, who refused to engage in proactive policing measures over the Christmas period (ironically, crime dropped).

Another example: in Minneapolis, councillors favoring reduced police budgets have seen their wards affected by police “slowdowns,” whereby officers deliberately respond slowly to 9-11 calls and then blame the local councillor to residents who are perturbed by their lack of response.

The difficulty of achieving police reform at the local level is not surprising. Jurisdictional fragmentation, urban-suburban political economies, and hostile interest group capture were all tools used to block equal civil rights across a range of other policy realms, especially education, housing, and voting.

Previous movement towards greater racial equality in the United States has rested on marshaling the full coercive force of the federal government, whether that was during the Reconstruction period after the Civil War, or in federal efforts to integrate schools and the public sphere after 1964. These federal efforts faced violent resistance by locals — but their defiance only underscored the need for federal enforcement of civil rights reforms.

In other words, the federal government must take the lead here. Barack Obama’s “President’s Task Force on 21st Century Policing,” created by an executive order in December 2014 following the Ferguson protests after the killing of Michael Brown, began this process. The report recommended restructuring departments, police record transparency, the end to “zero tolerance” policies, civilian oversight boards, a national curriculum for police training, resident officer programs, affirmative action in police hiring, bias training, department apologies for past injustices, and shifting resources to public health, education, and mental health services.

The task force’s recommendations went largely unimplemented. At the time the executive order was issued, the Obama administration lacked the requisite legal clout to make its recommendations mandatory. Some police departments (e.g., Seattle, Cleveland) voluntarily signed onto the recommendations, but there was no external enforcement mechanism, beyond some mild financial inducements. Enforceable federal action to implement police reform requires Congressional approval; in 2014, Republicans in control of both the House and the Senate were not interested in a national initiative to reform the police.

The “George Floyd Justice in Policing Act” passed by House Democrats in mid-June proposes to remedy this impasse by creating baseline standards in recruitment, training, and conduct. Citizens would be allowed to seek justice in the courts whenever a police officer or department violates this standard, obviating locally bargained police union contracts that prevent accountability.

Although a welcome first step, the House bill is still too weak. It does not sufficiently deploy the tools of “forceful federalism” for racial equality. The relevant precedent here, in our view, is the Voting Rights Act of 1965 (VRA), which was the most successful piece of civil rights legislation in American history.

Before the Voting Rights act became law, most civil rights laws in the United States had been premised on the expectation that victims of discrimination will sue for their equality in federal court. This can be a lengthy and costly process. The Voting Rights Act was different. In a formula in Section 4 of the Act, Congress identified areas of the country which had consistently shown resistance to equal citizenship for non-white people.

Under Section 5 of the Voting Rights Act, jurisdictions identified under the Section 4 formula had to seek approval from the federal government before making any changes in election law or practice. Jurisdictions under federal pre-clearance were forced to submit even the most minor changes for review by the Civil Rights Division of the Justice Department or the DC Circuit Court. Between 1965 and 2013, Section 5 was used to block more than 3,000 electoral changes deemed by the federal government to be discriminatory.

Section 6 of the Voting Rights Act provided the legal basis for the physical presence of federal agents in areas under the Section 4 formula. Between 1966 and 1974, the Justice Department sent 7,359 election observers to areas under the formula.

During the Johnson administration (1965-69), federal agents directly signed up 158,384 African Americans on the electoral rolls. The next Democrat to become president, Jimmy Carter, sent about 3,000 federal agents to monitor elections in his one-term presidency alone. These agents were not simply passive observers. They actively sought out African Americans to register them to vote. And what a change this was! Instead of trying to discourage Black Americans from voting, federal agents were encouraging them.  

Something similar needs to happen now with national police reform, if these reforms are to be successful.

Inspired by Sections 5 and 6 of the Voting Rights Act of 1965, we propose that the federal government place local police departments under mandatory “consent decrees” by devising a formula to identify the most problematic departments (much like the pre-clearance formula in the Voting Rights Act). Consent decrees are powers given to the attorney general which allow direct Department of Justice intervention in police departments deemed to be systematically violating citizens’ constitutional rights, brokered by a federal judge. The power was passed by the Democratic Congress in Bill Clinton’s first term, following pressure from protestors and activists in the wake of the Los Angeles riots. Clinton used them in a limited fashion, but they were deployed more aggressively by Barack Obama’s attorney general Loretta Lynch as a means to push reforms through problem police departments.

For example, the Obama administration placed a “consent decree” on the City of Baltimore on the basis that Baltimore City Police Department had “engaged in a pattern or practice of conduct that violated the Constitution and federal laws by making unconstitutional stops, searches, and arrests . . . [and] using enforcement strategies that disproportionately impact African Americans, in violation of Title VI of the 1964 Civil Rights Act.” The consent decree prescribed a wide set of reforms to the city’s police department at the instruction of the Department of Justice, including community oversight of the police, stricter procedures for investigations of police wrong-doing, de-escalation techniques between police and suspects, and training about “the specific history and racial challenges in the City of Baltimore.” These reforms were mandatory and cost the city millions of dollars.

Because the consent decree was an executive branch action, however, the Trump administration dismantled the decree soon after coming to power in 2017. Stronger statutory protection — requiring Congressional action — is necessary for these reforms to be durable.

Additionally, we believe that a federal presence on the ground is vital. The federal government should be empowered to recruit and send agents to monitor local police departments and take them over where they find examples of non-compliance with the federal standards. Department of Justice officials should be able to dismiss officers and commanders who violate the rights of African Americans and, if necessary, install external officials to transform the department from within.

This level of federal intervention will be fiercely resisted, just as Sections 5 and 6 of the Voting Rights Act were. Shortly after Johnson signed the act into law, an editorial in the Montgomery Advertiser declared Alabama would be under “federal occupation,” editorializing that “federal agents, lineal descendants of Reconstruction corrupters, will be at work showing illiterates where to make their marks.”

However, the relative success of the Voting Rights Act shows that such coercive action at the level of the federal state was both necessary and effective.

Dr Richard Johnson is lecturer in U.S. Politics at Lancaster University.

Professor Desmond King is the Mellon Professor of American Government at the University of Oxford.