How Police Reform Bills in Congress Compare

Everybody is talking about changing law enforcement, but not all proposals are equally worthy—or serious.


However grudgingly, most government officials have come to the realization that many Americans are sincerely concerned about abusive policing practices and the disparate treatment of minority communities by law enforcement. That means we're seeing competing proposals from lawmakers as they race to get on the right side of the national movement for reform. But not all proposals are equally worthy, or even serious.

The most promising of the proposals so far is the Ending Qualified Immunity Act from Rep. Justin Amash (L-Mich.) and Rep. Ayanna Pressley (D-Mass.). At four pages long, dealing with one subject, and clearly written, the bill is a model piece of legislation.

The bill would abolish qualified immunity, which "protects a government official from lawsuits alleging that the official violated a plaintiff's rights, only allowing suits where officials violated a 'clearly established' statutory or constitutional right," in the words of Cornell Law School's Legal Information Institute. It's a much-abused doctrine that has shielded police from consequences for abusive actions for decades.

The strength of the Ending Qualified Immunity Act could also be its weakness: it deals with one concern, not the host of problems that beset modern policing. There's nothing in here about civil asset forfeiture, racial bias, militarization, no-knock raids, etc. But that should limit the opportunity for debate and delay; lawmakers either support the one proposed reform in the bill, or they don't.

The main reform proposal from Democrats is the Justice in Policing Act of 2020, sponsored in the House by Rep. Karen Bass (D-Calif.) and Rep. Jerry Nadler (D-N.Y.), which takes on rather more topics than the Amash-Pressley bill. In 134 pages, it addresses racial profiling, data collection and the tracking of police misconduct, body cameras for law-enforcement officers, no-knock warrants, chokeholds, and the distribution of military equipment to police departments. Going beyond qualified immunity, which applies to state and local cops, the bill also seeks to rein-in use of force by federal officers.

There's a lot in here to like, such as the core reforms. There's also quite a bit to argue about, such as dramatically expanding the federal government's role in ways that may prove counterproductive (more federal funding for policing will inevitably result in more policing). And there's much to wonder over the fate of, such as a police misconduct registry and extensive data collection that, as years pass, are likely to be as neglected as those never-published excessive-force reports.

If it can win approval, the Justice in Policing Act of 2020 has the potential, on balance, to nudge policing in a healthier direction. But this is far from perfect legislation and it's easy to envision it stalling in the Senate over disagreements about any of a dozen different proposals.

By contrast, the Republican JUSTICE Act is weaker tea. The bill doesn't address qualified immunity at all—sponsor Sen. Tim Scott (R-S.C.) called such a provision a "poison pill" for his party. It does make federal funding for police departments conditional on restricting the use of chokeholds, requires the use of body cameras by officers, punishes falsified police reports, and criminalizes cops having sex with prisoners (which, it's hard to believe, actually has to be addressed). It also (despite much initial sparring over the issue) makes lynching a federal crime just as the Democrats' bill does.

Most of the GOP bill, though, is about kicking the can down the road. It proposes gathering data on police conduct, requires reports about the use of no-knock warrants, sets record-retention standards, and creates training programs for officers that will, hopefully, eventually improve their conduct. And it would create commissions, apparently to hold lots of meetings to determine if something else should be done in the future.

Take a crack at predicting the fate of those databases, reports, programs, and commissions 10 or 15 years down the line. The JUSTICE Act is less a piece of legislation than it is 106 pages dedicated to establishing new federal approaches to gathering dust.

An important caveat to keep in mind for all proposed policing and justice reforms is that policies passed in the heat of the moment will be interpreted and implemented by government employees long after popular enthusiasm fades. We've had reformist moments in the past that were sabotaged by bureaucrats and politicians.

In 1994, the Violent Crime Control and Law Enforcement Act, otherwise a gift to law enforcement agencies, included a section requiring data collection on the use of excessive force by police departments and the publication of annual reports. But "we still don't know how many of these incidents occur each year … the reports were never issued," as famed police whistleblower Frank Serpico pointed out in 2015.

"The brutal killing of George Floyd by Minneapolis police has been condemned by former Presidents Bill Clinton, George W. Bush and Barack Obama," noted USA Today columnist James Bovard recently. "However, police violence spiraled out of control in part because each of those presidents failed to obey a law compelling the feds to track police killings around the nation."

Ultimately, any programs meant to monitor or limit the government's enforcement power will be administered by officials not especially committed to such restrictions. Temper your expectations accordingly.

At present, the bar for police reform is set by the Amash-Pressley bill. Given its limited but important focus and the fact that it's a one-time change that doesn't have to be administered over the course of years by disinterested or even hostile bureaucrats, the legislation is a no-brainer. Any lawmaker unwilling to support abolishing qualified immunity is not serious about reforming policing.

The Justice in Policing Act of 2020 is probably worthy of passage for its core reforms, even though it could really do with less dedication to subsidizing that which it's supposedly trying to restrain. The ultimate effectiveness of data-gathering and the misconduct registry will require both continuing public attention and government efficiency—which is to say, don't place your hopes on those parts of the legislation.

The JUSTICE Act is not seriously in the running unless it gets major revisions. Forget it.

Will any of these bills change the nature of policing in a positive way? Polls find that a clear majority of Americans want to retain police departments as we know them, but with major overhauls to address abuses. Two of these bills offer some hope for just that, which is a start in the right direction.

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  1. They can pass whatever law they want. Individual police officers as well as their police departments and civilian authorities will break without consequence whatever law Congress manages to pass. No one has the political will to enforce restraints on the enforcement arms of their own dictates and demands on the average citizen.

    1. The main issue is public sector unions which make it nearly impossible to fire problem public employees. Chauvin would have been shown the door in any institution trying to identify employees most likely to cause problems in the workplace. The union, as they always do, threatened Armageddon if any discipline were handed out.
      If you wait for half an hour at the county permit office while the clerk in the back discusses a recent vacation trip while avoiding eye contact, only your time is lost. Complaints will get you nowhere, because public employees have almost total job security. A cop can destroy your life, which is much worse, but if you really piss off that clerk, your job will be stopped or delayed.

      1. Those union contracts are agreed upon by both sides of the negotiations.

        1. That logic works in the private sector because there really are two sides – unions representing the workers and management accountable for the consequences of the decisions. In public sector negotiations, the “other side” would be the taxpayers and nobody has the incentive to properly represent their interests. Public sector union negotiations are really two folks from the same side.

          So, no, the ‘right to contract’ is not a sufficient defense of union contract terms. We, the vast majority of people who have to deal with the consequences of those negotiations, had no seat nor even a representative at the table during the negotiations.

          1. My point is that political leaders do not show desire to rein in law enforcement because they are the ones who willfully negotiated away their ability to do so.

  2. “The brutal killing of George Floyd by Minneapolis police has been condemned by former Presidents Bill Clinton, George W. Bush and Barack Obama,”

    I guess we can say that the wars in Iraq, Afghanistan, Yugoslavia, Libya, etc. were not “police actions” then.

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  3. Does the Amash bill get rid of the court created absolute immunity for prosecutors and judges as well? Focusing on the limited immunity provided to police for decisions made in the heat of the moment and not the considered decisions make by government officials under significantly less pressure would be a pretty major flaw; of course, Congress has many more lawyers than ex-cops.

    1. It’s not perfect! It’s only good, not perfect! Kill it! It must be perfect!

      1. Seriously, dude. I’m just grateful that our betters have finally deigned to acknowledge our trifling whinges! Some pessimistic sorts see nothing more than a few stale crumbs offered up for self-serving motives, but take heart: in the right light – and only if you squint hard enough – even the smallest crumbs start looking a lot like cake! Maybe next they’ll let us eat cake!

  4. Everybody is talking about changing law enforcement, but not all proposals are equally worthy—or serious.

    Just a doggone minute, J.D — are you *discriminating*?!

  5. I see it differently.
    1. Amash’s single-issue bill approach is far and away the best.
    2. The Justice in Policing Act is so overloaded with conflicting and controversial proposals that it has no real chance of passing. And I think the sponsors knew it from the start. They wanted to look like they were “doing something” without being held accountable to the results.
    3. The JUSTICE Act is weaker tea but it might actually get passed.
    4. None of these proposals address the root cause – the failed “war” on drugs that led us to overpolice in the first place.

    1. ^^^This

  6. Police need to be held accountable for illegal acts. The Senate bill does not do this at all, the other two at lease make an effort. None will pass and this will be a campaign issue.

  7. “Polls find that a clear majority of Americans want to retain police departments as we know them, but with major overhauls to address abuses.”

    My own opinion is that we should have police that on first glance look substantially to what we have now. However, existing departments are too corrupt and need to be burned (metaphorically) to the ground so we can start over.

    New departments would have:

    1. Preferably no union, but at a minimum the union limited to negotiating compensation and with no say in department policy and discipline issues.

    2. No specialized SWAT or vice/drug units.

    3. Dynamic entry (no knock) raids severely limited to cases where “someone will die in the next five minutes if we don’t act”. Mandatory post-hoc review of all dynamic entries with discipline to follow if the dynamic entry is deemed unnecessary.

  8. I’m glad to know there are bills to establish commissions, because I’m very enthusiastic about doing things that way. You may look at commissions as a way to deflect reform, but I know they have an excellent record of leading eventually to significant and lasting reforms — considerably better than ad hoc legislation — on the local, state, and federal levels, in the USA and other countries. Do they always pay off in all respects? Of course not, but name something that does.

  9. All of the focus is on reforming police departments. Again.

    Police chiefs are hired by city councils. City councils set law enforcement priorities. If a city council has been promising to reform police ever since the Rodney King riots, and nothing has changed, the police are the symptom, not the problem.

    It’s been: black person gets hurt or killed, demonstrations gather, riots erupt, city councils kneel beside their outraged citizens and make promises, police chiefs get thrown under the bus, and the city council hires a new chief and hands them the same priorities; and the process starts over. For generations.

    Until the city councils are fired, I’m not holding my breath.

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