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How the federal government could improve police oversight

Two legal experts say the Voting Rights Act could be an effective blueprint for police reform.

A officer in black riot armor lunges toward the photographer, truncheon arm raised and clear riot shield held high. Behind this officer, two others in riot armor run forward, as if about to charge an enemy in battle, as a third officer appears to strike a protester attempting to flee.
Police officers charge toward protesters in Washington, DC, in May 2020.
Samuel Corum/AFP/Getty Images

Police departments around the United States operate with limited oversight — and that is a problem.

It’s a problem that has led to adverse outcomes for citizens, from killings to assaults to improper detention, but, far too often, little accountability on the part of police. For instance, of the 249,782 allegations of misconduct Chicago police officers faced from 1988 to 2021, only 17,130 — about 7 percent — resulted in disciplinary action, according to the Citizens Police Data Project. For about 30 percent of those officers, that discipline came in the form of a reprimand.

What’s also a problem is that the kind of data that’s available for Chicago is not available for all of the United States’ roughly 18,000 police organizations. Bowling Green State University criminal justice professor Philip Matthew Stinson has tried to fill a portion of this gap by collecting data for on-duty police shootings — and has noted a similar pattern of a lack of police accountability.

He found that between 2005 and 2020, 126 police officers were arrested for either murder or manslaughter following a shooting, and that of those 126, only seven were convicted of murder. These arrests represent just a fraction of the police killings during those 15 years — for example, in the first two months of 2021, police killed at least 171 people, according to Mapping Police Violence.

Currently, the federal government does have the ability to investigate police departments that have demonstrated a pattern of misconduct, but a willingness to pursue these sorts of inquiries can wax and wane depending on who is leading the Department of Justice. And even a motivated Justice Department can struggle with these investigations — the DOJ has historically been resource-limited when it comes to such work, with respect to both personnel and funding.

The most recent move to expand the federal government’s oversight abilities was the House of Representatives passing the George Floyd Justice in Policing Act, but it is unclear whether that legislation will become law. The bill faces a difficult road in the Senate, needing the backing of at least 10 Republican senators — something it seems highly unlikely to receive.

Were the Justice in Policing Act to become law, it would require federal law enforcement to enact changes like mandating that officers wear body cameras, and would incentivize state and local departments — over which the federal government has little control — to do the same. It’s unclear whether these changes would have the intended effect of reducing violence — as activists have pointed out, racial bias training and body cameras did not stop George Floyd’s killing in Minneapolis. With respect to oversight, the bill would expand the Justice Department’s investigative powers, increasing the department’s ability to pursue misconduct cases.

An unorthodox proposal from two legal scholars argues for going further than the Justice in Policing Act, however, attempting to circumvent the federal government’s current lack of influence over state and local departments through more rigorous oversight. Under this plan, any department that pulls one of its automatic triggers would have to submit to federal supervision, working with federal officials to make the sorts of changes many police leaders have long resisted.

The plan — by Jason Mazzone, director of the program of constitutional theory, history, and law at the University of Illinois, and Loyola University associate professor of law Stephen Rushin — is modeled on the Voting Rights Act of 1965, which put areas that failed to meet certain voting rights standards under federal supervision.

“You really cannot fix this big problem unless you do it top-down — perhaps in partnership with local reform efforts — but you really need a federal response,” Mazzone told me.

Under Mazzone and Rushin’s proposal, any jurisdiction that did not meet federal criteria for fair policing would be subject to federal oversight, and the changes that would come with it. For instance, a department that demonstrated a pattern of violence might be required to enact deescalation procedures or to adopt more stringent use-of-force standards — as well as severe punishments for officers who have violated them.

While this style of oversight would go further than that proposed by the George Floyd Justice in Policing Act, it is not as sweeping as some other plans, like the Movement for Black Lives’ BREATHE Act, which calls for defunding a number of federal agencies and for their budgets to be reinvested in community programs and initiatives that target the root causes of police misconduct, from education to housing.

“Our proposal would almost certainly involve, in some cases, more money being invested in policing, more money invested in oversight, or money invested in accountability mechanisms,” Rushin said, adding, “Our proposal is a little bit more focused upon viewing policing as something that needs to exist, will exist, and needs to be well regulated to ensure the protection of civil rights for anyone who comes into contact with law enforcement.”

This stance makes Mazzone and Rushin’s proposal something of a middle ground between some of the reforms in the Justice in Policing Act and more revolutionary divestment proposals. Were it to be taken up, it would push police toward greater accountability without a complete overhaul of the institution. It would not be a panacea, but as Rev. Raymond Greene, executive director of Freedom BLOC, told me, it would be “a step in the right direction.”

In a period in which there is unique attention on racist policing of people of color — particularly Black Americans — the time could be right for a federal oversight framework that has been successful before.

“This may be the moment — in the same way that just before the Voting Rights Act of 1965, there was this shift in the national mood, and the national sense that some reform was needed,” Mazzone said.

How policing might be reformed through oversight

Mazzone and Rushin argue that federal police reform efforts are trapped in a place similar to federal efforts to guarantee voting rights prior to 1965; that current law, which gives the DOJ the power to investigate police departments engaging in a pattern of misconduct, is limited in its effectiveness.

The DOJ only has the resources to launch a few investigations at a time because they can lead to expensive and drawn-out lawsuits if wrongdoing is uncovered, as Vox’s Ian Millhiser has explained. These lawsuits can be so costly and convoluted, in fact, that offending departments would often enter into consent decrees with the federal government — essentially agreeing to make changes under the supervision of a judge — in order to avoid having to deal with the suit.

And even getting to the lawsuit or consent decree phase has historically been challenging for the federal government, Rushin noted.

“During the Obama administration [and] during the Clinton administration, the federal government and the Civil Rights Division were only able to use the existing law to bring about consent decrees in a very small number of cities annually,” Rushin said. “We’re talking about, like, three cities per year [that] they could investigate, and maybe one or two per year they could initiate a consent decree against.”

And this process is also flawed in that it depends on an executive branch interested in police oversight; the Trump administration was vehemently against consent decrees and refused to use them. Trump’s first Attorney General Jeff Sessions called consent decrees “an insult,” and as his final act as head of the Justice Department, severely restricted the department’s ability to employ them. Even the expanded powers that the George Floyd Justice in Policing Act gives the attorney general would not solve this problem — having more subpoena power does not matter if the attorney general is unwilling to use it.

Ahead of the Voting Rights Act, Mazzone and Rushin note, the federal government was in a similar situation. While the executive branch was willing to pursue legal challenges to voting rights abuses, its resources were strained by what was essentially a game of whack-a-mole, as federal court victories were sometimes ignored by local officials.

“Voting and policing are similar, in that when problems arise, the problems can be distributed unevenly,” Mazzone said. “The way that you can deal with them can become really problematic because you can go after one problem, but then there’s always another one that will pop up somewhere else. And it’s very hard to generate any sort of comprehensive reform.”

The Voting Rights Act solved this problem by mandating federal oversight for any state or local area that used what were essentially racist practices (like poll or literacy tests) or had low Black voter turnout because of these practices (like any locality in which fewer than half of all voting-age citizens were registered to vote).

As the Economic Policy Institute has explained, these restrictions were strikingly effective. In 1964, for instance, only 22.5 percent of Black Americans living in Alabama, Georgia, Mississippi, North Carolina, and South Carolina were registered to vote; the situation was particularly dire in Mississippi, where nearly 95 percent of white Americans were registered to vote, but only 5.1 percent of Black residents were.

Under the Voting Rights Act, Alabama, Mississippi, Georgia, South Carolina, Louisiana, and Virginia became covered jurisdictions in their entirety, as did 40 counties in North Carolina. All of these jurisdictions were subject to the act’s “preclearance” system, which meant any changes governments wanted to make to their voting rules had to be cleared ahead of time by the Department of Justice or a federal judge. The act was ultimately successful in increasing turnout of voters of color — a 2018 study found that it did so by as much as 30 percent.

A policing law based on this model would rely on triggers as well. If a department surpasses a given number of civilian killings, for example, then it will fall under federal oversight. Other triggers Mazzone and Rushin suggest using: the number of police use-of-force incidents; how often civil rights suits are brought against a given department; the frequency of payouts by a given local government; abnormalities in arrest, search, or stop data; and the content and number of disciplinary records and complaints against a department’s officers.

That oversight could take a variety of forms. Just as the Voting Rights Act, for instance, contained a ban on poll tests being used in any covered jurisdiction, a policing law following its model could include policies like a chokehold ban, limits to drug enforcement activities, or a requirement for police academies to spend more time on deescalation training.

Ideally, this plan would solve the issue of state and local governments failing to institute real and lasting reforms. But some reformers told me they were concerned about the federal government’s ability to do any better.

“I still think there’s a deep-seated vein of white supremacy and anti-Black bias within the Justice Department and the FBI, and that I would worry about still having some type of control, oversight over police departments,” DeAngelo Bester, executive director of the Workers Center for Racial Justice, said.

Bester also questioned if the federal government would have the resources to conduct oversight as needed.

“I’m assuming there would be hundreds, if not thousands, of police districts that this type of oversight would cover,” Bester said. “I just don’t know if it can be done, feasibly, to really have preclearance for that many police districts.”

Overall, Bester said, “We’re in favor of it in theory, but I guess just in practical terms, I have concerns about how it will be applied and implemented.”

Greene echoed these concerns, saying that for Freedom BLOC, “transformational justice is our number one.”

“I think it’s a step to start having conversations about state-sanctioned violence being held accountable,” Greene said, but added, “I think we have to begin the conversation of transformational justice and get to a place of abolition, and raising up a new generation that’s able to handle and deal with conflict in a different kind of way than we see now.”

There are some challenges to enacting oversight — but not necessarily insurmountable ones

One key issue with Mazzone and Rushin’s plan is that it would require the federal government to have a granular level of policing data — and at the moment, data reporting is incredibly uneven. The federal government has a better understanding of what goes on in certain departments than others — and in some cases, has little to no idea what’s happening.

For instance, not all police misconduct settlements are public; police disciplinary records are confidential in 23 states; and the quality of available data has been called into question by some researchers, who argue unconscious bias — and sometimes, outright lies — taint police reports, creating inaccurate records of encounters with civilians.

“Lying is a normal part of policing in many places across the country,” Stinson, the Bowling Green professor, who is also a former police officer, told me. “Police officers lie in their reports. They write narratives up to justify the actions that they wanted to take or did take.”

New efforts are being made to collect the data police generate, good or bad, but have not yet been passed into law. The 2021 George Floyd Justice in Policing Act would collect use-of-force data for a publicly accessible federal database, and the Cost of Police Misconduct Act — which Virginia Democrats Sen. Tim Kaine and Rep. Don Beyer hope to add as an amendment to the Justice in Policing Act as it makes its way through the Senate — would also create a publicly accessible federal database, tracking police misconduct allegations and settlements at both the state and federal levels.

Whether state and local governments will turn the data in as requested isn’t certain, however.

Even with good data, oversight like Mazzone and Rushin propose would face a host of challenges.

For one thing, Republicans in Congress have been critical of the police reform proposals contained in the George Floyd Justice in Policing Act, and the professors’ plan arguably takes those reforms a step further. And even if the professors’ proposal were to become law, it would likely encounter legal challenges, which Bester also noted.

Any legal case against oversight-based reform would likely turn on the fact that the Supreme Court gutted the Voting Rights Act in 2013 in Shelby County v. Holder, citing the formula used to decide which areas required oversight as problematic.

But Rushin noted that Court invalidated the Voting Rights Act “because of the fact that the formula itself was no longer constitutionally valid. It didn’t say that the formula system that we talked about couldn’t be used, or the preclearance system, etc., couldn’t exist. It just said that the formula that was being used was relying upon data that’s no longer good data.”

All that needs to be done to get around oversight running into Shelby County-style issues, Mazzone said, is for Congress “to be careful in terms of the particular mechanisms that it’s going to impose upon the states.” The easiest way to do that, Rushin said, is to collect good data.

Historically, the federal government has struggled with this — and police departments have not always been prompt or cooperative in providing data. The federal government does not really have much leverage to force departments to submit their data, but Beyer said that shouldn’t stop lawmakers from trying to access it.

“Skepticism is probably appropriate — just look at how difficult it’s been to collect the data on hate crimes,” Beyer told me. “But we have to start. I think any data we collect is going to be enlightening, and teach us more about how best to collect the data. And the fact that it’s going to be difficult is not a reason not to do it.”

Rushin said the same is true of increasing federal oversight of police in general: “I recognize it’s hard, but I also think it’s plausible and doable, and Congress has done more difficult things in the past.”

Whether Congress can successfully pass police reform remains to be seen: The Justice in Policing Act will test the Democratic majority’s ability to win Republican votes. If they fail to do so, Democratic senators will likely face increased pressure from reformers to abolish the filibuster, allowing bills to be passed by majority votes. And should that legislation succeed, there will be pressure from activists to take steps toward more sweeping reforms like those proposed in the BREATHE Act, or Mazzone and Rushin’s plan.

In part thanks to 2020’s civil rights protests, Mazzone said Americans have become more vocal with their concerns about policing, and that pressure to make significant changes is steady.

“I don’t know if it’s exactly the same kind of national attention as we saw just before the enactment of the Voting Rights Act in 1965,” Mazzone said. “But it’s pretty close in terms of a kind of shift in public attention and public mood, and much more interest across political lines across the broad public, in terms of actually doing something.”

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