Abstract

Excerpted From: Barry Friedman, Rachel Harmon and Farhang Heydari, The Federal Government's Role in Local Policing, 109 Virginia Law Review 1527 (December, 2023) (438 Footnotes) (Full Document)

23,0000 > 18,000 > 50 > 1. That is the mathematics of transforming American policing. Just under 23,000 cities and counties, 18,000 police departments, 50 states. And one federal government. The point seems obvious. If the goal is to change policing for the better, mustering the authority of the federal government can provide an enormous fulcrum.

Even if every one of those 23,000 cities and counties and 18,000 agencies were trying to make policing fairer and less harmful, they could not do so by themselves. Some are far too small to have the expertise or resources to do so. More than eighty-five percent of local police departments and three-quarters of sheriffs' offices have fewer than fifty officers. Yet, large jurisdictions struggle as well, and there is little doubt why. Most agencies lack the capacity to assess and adopt best practices without help. Or collect and share information in a consistent manner. Or attend to the interests of those most affected by policing in the face of other pressures and priorities. The simple fact is that even the most willing of states and localities cannot articulate or enforce national values and standards or coordinate easily across state lines. Only the federal government can do this.

Realistically, though, not all jurisdictions are focused on eliminating the harm in policing. Some are. Some states have pursued legislative or other changes to improve policing, and some states have done enough of this to plainly be taking the endeavor seriously. Overall, however, the spate of enactments since the nation's response to the murder of George Floyd tend to be piecemeal at best. Still, other jurisdictions have done less to increase fairness and reduce harm, as the horrific murder of Tyre Nichols by the “Scorpion Unit” in Memphis suggests. The fervor for police reform that began after George Floyd's murder itself has cooled, and the national narrative--accurate or otherwise--shifted to another wave of rising crime. Only the federal government has the capacity to protect constitutional rights in the face of local diffidence or recalcitrance. That is its job.

If we really care about addressing the many serious problems with policing, at least for some aspects it will be faster and more effective to adopt one set of changes rather than 50, 18,000, or 24,000. If money and might are needed, the federal government has them. Yet the federal government's resources and heft too often have been badly deployed.

Here, we offer some needed direction for federal involvement in local policing. We do that for Congress, which all too rarely has exercised its authority to set national rules for policing, or even authorized the executive branch to do so. And we do it for the executive branch, which, even with the existing authority it has, could do much more. We elaborate upon the need for national standards in some areas of policing, the value of information collection, and the utility of technical assistance and training, and call for more thought about how the federal government's enforcement power is utilized. We are critical of the Supreme Court's jurisprudence, to the extent it stands in the way.

None of what we suggest here is rocket science, however, which raises the question why the federal government's performance in police reform has been so anemic. For that reason, besides putting forward an affirmative agenda, we devote substantial time to four explanations for why the federal government has not done its job. We cannot repair them all, but we can shine a light on them, offer pushback, and--at times--antidotes.

The first is a lack of political will. Federal authorities could address almost everything we suggest here, even in the face of some problematic Supreme Court jurisprudence. They simply seem not to be able to muster the wherewithal to do so. After George Floyd's murder, Congress considered important legislation. It was not unproblematic, and it was not enough, but it would have been a notable start. It went nowhere.

You could think Congress failed to act because the public lost interest. Congress inevitably follows swings in public opinion. In 2020, the public favored police reform. By 2022 they were concerned about crime. In that case, one could argue Congress's lack of political will reflected political responsiveness. But if that is what Congress was thinking, Congress was wrong. As the public recognizes, effective and accountable policing need not be in tension. Even as crime rates rose in 2021 and 2022, support for some forms of reform--and for the Black Lives Matter movement, for that matter--remained. Polling shows widespread, bipartisan, non-ideological support for using first responders rather than police to address many problems such as mental health.

Which brings us to the second explanation. Opponents of federal reform frequently claim that principles of constitutional federalism stand in the way. Some argue that it is improper for the federal government to tell local police how to do their job. And others go further, questioning whether the federal government has power under the Constitution to set the rules for policing.

As this Article makes clear, these views about federalism's limits on federal power are wrong. Under our federal system, and the Supreme Court's somewhat baroque federalism doctrine, Congress may have to choose with some care the right font of power to meet the particular problem. For racial discrimination and use of force, Section 5 of the Fourteenth Amendment should suffice. For surveillance technologies, resorting to the Commerce Clause in most cases would do the trick. Some approaches to regulating policing may escape Congress's grasp, but for the most part, Congress has ample constitutional power to step in where it would be helpful to do so. And, of course, national standards and approaches do not eliminate state variation; they simply provide a floor.

The best evidence that federalism-based objections have little to support them is that the federal government already intervenes in deeply consequential ways to shape policing. It empowers local officers by deputizing them to federal ends. It pushes local agencies to pursue national public safety priorities, whether they be street-level drug enforcement, gun crime, or something else. It provides local police with militarized equipment and tools for surveillance and incorporates their work into federal databases. It trains officers to engage in deleterious practices like widespread pretextual traffic stops. The federal government meddles aplenty in local law enforcement without much objection from those who worry aloud about the federal government interfering in local policing. It seems only to rouse disagreement if the suggestion is the federal government should work to make policing more responsive to policed communities, more equitable, and less harmful. That one-way ratchet rests on an implausible account of “Our Federalism.”

The federal government's already ample role in local policing highlights the third explanation for why it has not done what is needed to transform policing for the better, which is that some parts of the federal government themselves are resistant to change--to the point that the federal government is complicit in many of policing's problems. When it comes to policing, there is a deep tension within the federal government as to what its role should be. On one hand, it has an obligation to protect civil rights and racial equality, a special role in preserving privacy, and the sole power to promote values such as democratic accountability and transparency at a national level. Some elements of the federal government pursue these ends, such as the Civil Rights Division and its Special Litigation Section. On the other hand, the federal government operates an enormous law enforcement apparatus, with dozens of agencies that depend on state and local cooperation. That law enforcement apparatus does not seem particularly reform-minded; indeed, some federal agencies such as the Drug Enforcement Administration, Customs and Border Protection, and Immigration and Customs Enforcement are themselves particularly concerning. Federal law enforcement has too often pursued its public safety priorities, such as the wars on crime and terrorism, and federal immigration enforcement, with little attention to the harms it causes. In short, while some parts of the federal government encourage reform, other parts of the federal government work against it.

The federal government--and many federal agencies--bear responsibility for many of the harms of policing. The federally driven War on Drugs garnered little in the way of success while shredding constitutional liberties and contributing to mass incarceration. Today, asset forfeiture drives unjustifiable policing practices, yet federal agencies have done little to curtail it and much to promote it. Tyre Nichols's murder brought widespread public attention to the problem of pretextual traffic stops, but the federal government has and continues to promote them, causing harm and racial disparities. The militarization of domestic policing is deeply troubling in a free society, and the federal government has driven that. Technology-driven surveillance is itself a threat to democracy and individual rights, and very much on the rise, and yet again federal agencies promote, supply, and fund these technologies with few guardrails on their use. One could go on and on.

To be clear, our claim here assuredly is not that the federal government should not help state and local governments in crime fighting. Small communities need help to be effective in addressing crime, all departments benefit from federal expertise about what works, and there are elements of crime that are both national and transnational. Each of these provides a classic justification for federal involvement in primarily local enterprises. It may well be warranted beyond that. Our claim, rather, is that the federal government must be concerned both with ensuring public safety from crime and ensuring public safety from the harms of policing. The simple fact is that policing is unlikely to be effective over time unless it also is fair, harm-minimizing, and accountable--and even if it could remain unaccountable, that simply is inconsistent with this nation's broader democratic values. The War on Drugs and federally supported asset forfeiture are indicative of a distorted sense of balance, if not one altogether missing.

Which brings us to the final explanation, and one on which we have a great deal to say, which is that the federal government has over-relied on an approach to addressing the harms of policing that rests in conditions on grants and civil rights enforcement, while undervaluing other approaches such as standard setting and regulation, or even ensuring that the federal government's policing strategy is internally coherent. Do not get us wrong--enforcement is essential to ensuring the rules of the road obtain adherence. But what the federal government has done for too long is not set out the rules of the road, relying instead on the minimalist notion of policing regulation set out in the Supreme Court's constitutional jurisprudence. Yet, as every first-year law student learns, the Constitution is a floor; it indicates what must be done, but often lacks any notion of aspiration or best practices.

The federal government's lackluster role in improving policing is in part a result of its piecemeal, reactive approach. When bad things in policing happen, for example, the Civil Rights Division prosecutes individual officers. Or it investigates and sues some deeply troubled departments. Enforcement is important, though it could be done more strategically. But litigating our way out of policing's problems is a doomed enterprise. The Department of Justice (“DOJ”) only can target a few troubled agencies or officers. The federal government also encourages some reform through grant programs and their conditions. But these efforts lack coherence, consistency, and comprehensiveness. They do far less than they ought.

Simply put, the federal government in the main has failed to set rules and standards that local policing agencies either must meet, or at least should aspire to meet. It has not collected or even made possible uniformity in data so that we can identify problems in local policing, and their solutions. If anything became clear in the aftermath of the killing of George Floyd--and should have been clear long before--it is that policing needs to be regulated with clear front-end rules, or at least provided with coherent guidance. As we indicated, states have taken up some of the work, but in piecemeal fashion. The federal government could and should--and indeed must--do more to bring needed cohesion and real progress.

There is no gainsaying that President Biden's May 2022 Executive Order (“EO”) on policing was a step in the right direction. It announced some efforts to bring federal agencies into line with best practices, some leadership in promoting nationwide accountability, and some effort to identify and promote best practices for local police departments. Even if radically incomplete, it was the most the nation ever has seen aspirationally about addressing real harms in policing. But orders are not action: a reform-oriented Trump order on policing had almost no effect. Only time will tell if the Biden Executive Order accomplishes what it set out to do. And even if it does--there is plenty more to be done, as the EO itself acknowledges.

This Article argues the federal government can and should foster change in policing and provides guidance as to what the federal government should do. The federal government has ample constitutional power to address the problems of local policing--sometimes acting along and sometimes in collaboration with state and local authorities. We at times suggest a regulatory approach, best achieved by setting rules and standards that guide local policing. We show how, when regulation would be inappropriate or ineffective, the federal government should use its other powers to achieve change. We strongly urge the federal government to adopt a coherent approach to policing--that, above all else, the federal government should stop using the power that it has in deleterious ways, exacerbating the problems of local policing even while claiming a desire to address them.

Part I of this Article is addressed to the question of need--where and why is federal intervention in local policing needed, and what should that federal role look like? It frames up three paradigmatic areas in which there is widespread consensus policing needs to change: excessive force by the police, racial discrimination in policing, and the use of surveillance technologies. It shows that state and local governments often are incapable of, or unwilling to, address the problems alone, thereby highlighting the vital role the federal government has to play. And it begins an exploration of what it is the federal government should do.

Part II turns to regulation and the role Congress should play in requiring better local policing. It sets out a minimal agenda for Congress in the three paradigmatic problem areas. But one cannot discuss congressional action without discussing constitutional power as well, thus implicating the Supreme Court. Part II acknowledges that Supreme Court precedent poses challenges to the exercise of federal power and critiques the doctrine accordingly. Still, it demonstrates that Congress has more than ample power to address what needs to be done. It explains how Congress could use this power to mitigate those problems of excessive force, undue surveillance, and racial injustice in policing.

Part III turns to the executive branch. If Congress does not act, or even if it does, the executive branch could do much with its discretion to set a national agenda, to enforce civil rights law, to implement federal programs, and to run federal law enforcement agencies to make policing better. The executive branch needs to promote a consistent, coherent approach to policing, one that supports policing that is fair, harm minimizing, and accountable as well as effective. But it also needs to stop doing things that make policing less equitable, less effective, and more harmful. Part III lays all this out.

The federal government is not going to fix everything that needs to be remedied around policing. But it could act to do less harm and reform policing substantially, even as it promotes effective efforts to address crime. It is time for federal officials at the legislative and executive level to take seriously their power and responsibility to address the harms of local policing.

[. . .]

We end where we began. There are some 18,000 policing agencies in the United States. Many lack the capacity to discovery and implement best practices; others lack the will. State (and local) governments have taken some steps in demanding reform. But if we are going to have anything approaching consistency in achieving effective, accountable, and equitable policing that minimizes harm, leadership is going to have to come from the federal government. Yet even the most ambitious efforts, such as the Biden Executive Order on Policing, fall far short. And, as we hope to have made clear, this is a job not just for the executive branch but for Congress as well. It is high time that the federal government--all branches of it--stepped up to recognize the problems of policing and acted to remedy them.

Jacob D. Fuchsberg Professor of Law, New York University School of Law; Director, Policing Project, New York University School of Law.

Harrison Robertson Professor of Law and Class of 1957 Research Professor of Law, University of Virginia School of Law; Director of the Center for Criminal Justice, University of Virginia School of Law.

Assistant Professor, Vanderbilt Law School; Senior Advisor, Policing Project, New York University School of Law.