Federal Policing Reform is Doomed
A weakened left-right-coalition, Democratic obstruction, a hostile conservative environment and the congressional calendar make the path forward impossible in the 117th Congress
Senator Tim Scott is set to introduce a bipartisan policing reform bill this week. After weeks of negotiations with congressional Democrats and more than a year after George Floyd's death, Congress could finally do something to increase police legitimacy and respond to increasing concerns about public safety. I've worked on criminal justice policy for six years through Congress, the US Sentencing Commission, and the nonprofit sector, and believe Congressional action is necessary. But it's just not going to happen this year.
I don't see any realistic path for this Congress to pass a bill similar to the modest reforms in Senator Scott's original bill last year, let alone the more ambitious plans of the left. I'm almost certain this bill won't become law. Instead of focusing on it, policing reform advocates should continue supporting policing changes on the local and state level and pressure members of Congress to pass legislation that has a limited, but positive effect on the federal criminal justice system, like the First Step Implementation Act, the Prohibiting Punishment of Acquitted Conduct Act and the EQUAL Act. Most importantly, we have to build a coherent political and policy response that responds to the erosion in police legitimacy and the nationwide rise in violent crime. And it has to be a response that doesn't activate the cultural anxieties of the right or antagonize the progressive left. This is difficult work but it also isn’t rocket science - congressional and mayoral candidates are already doing it. There are plenty of thinktanks and criminologists already building the intellectual scaffolding for effective criminal justice policy.
What needs to happen for policing reform to pass?
Why am I pessimistic? I believe four things need to happen for policing reform to pass this Congress:
1. Republicans must be convinced that passing reform won't trigger a backlash from conservative media and party activists
2. Democrats must support reforms that don't scare off moderate Democrats or piss off progressives as they head into a tough reelection year
3. Police unions have to not go on the warpath against police reform
4. Crime needs to not become even more of a culturally and politically salient issue. Basically, we can't have another crime major crime spike
Those are difficult needles to thread and I haven't even dived into the policy yet (qualified immunity is its own minefield) or gotten into the restrictions of the congressional calendar. And there are already signs that we might see a crime spike this summer.
The window of opportunity is closed
Here's the problem: I think last time really was different. There really was a mass movement for policing reform in 2020 that transcended political and racial lines. Time, political messaging, and the rise in violent crime has weathered that coalition.
Now support for Black Lives Matter is even lower among whites and Republicans than it was before George Floyd's death. Even the most moderate police reform bill is doomed to become a Blue Lives Matter vs. Defund the Police proxy fight. Just look what happened to the George Floyd Justice in Policing Act - it passed the House on a bipartisan vote. Until it didn't. Rep. Lance Gooden, the sole Republican vote in favor of the comprehensive policing reform package, immediately said he cast his vote in error and condemned the "radical left's anti-police Act." How do you pass policing reform in a political environment like this?
Senate Democrats killed the best chance for reform
The decision of Senate Democrats to filibuster Senator Scott's policing reform bill last July was inexcusable. It halted any chance for federal policing reform to pass Congress for at least six months and it killed off momentum at a critical time. The argument that the JUSTICE Act was so weak a proposal that it shouldn't have even been considered by the full Senate is laughable and yet another sign that Congress fears the messiness of legislating.
The Left-Right coalition feels weak
I might be wrong but the left-right coalition in favor of criminal justice reform feels less potent when it comes to policing reform. It certainly has less direction (and possibly less funding). The First Step Act was a singular achievement, the product of over a decade of work from organizations across the political spectrum. And it told a specific story - the excesses of harsh sentencing weren't making us safer, instead they were destroying lives and costing states a lot of money. That message carried more weight as more states started closing down prisons and reassessing their policies without seeing a rise in crime.
In sum: We had our policy theory for success, we convinced states to implement them, and with the right amount of funding and support we were able to convince federal policymakers (and President Trump) that this was a politically safe and positive policy shift.
Policing reforms just don't share the same policy evolution. Specific policing reforms have been bubbling in Congress for years. But they were narrow, dealing with issues like body cameras, civil asset forfeiture and police militarization. They weren't reflective of state or local policy shifts.
Polls show majority support for specific elements of police reform, but the public views federal legislation through the prism of political narratives not a set of individual policies. That means public sentiment can easily be trumped by political activists and shaped by a hostile political narrative. This is exactly what happened to sentencing reform in 2016: Senate Republicans chose to retreat from a popular sentencing reform bill once then-candidate Trump's cries of "law and order" started to echo in conservative circles.
Trump is out of office but conservative media hated sentencing reform and they seem to hate policing reform even more. Just watch Tucker Carlson's interview with Senator Braun about his bill limiting qualified immunity. Braun got so much pushback he now opposes the policy he once sponsored. That's a tough media environment for Republican policymakers to operate in!
So, what do we do?
If the 117th Congress doesn't pass a major policing reform bill the public shouldn't be disheartened. I hate the term but “progressive prosecutors” are still winning, cities are banning no knock warrants, state legislatures are limiting qualified immunity and more communities are experimenting with police reform. The next time Congress is interested in police reform, we’ll be able to point to the lessons learned through these experiments.
And federal lawmakers are still interested in criminal justice reform. The Senate Judiciary Committee voted the First Step Implementation Act out of committee last week and there are other bills out there that have a realistic chance of passing that can keep justice reform in the congressional conversation.
Policing reform is a tough topic to advocate for in Congress. But sentencing reform was similarly fraught when I started working in Congress back in 2013 and advocates still found a way to convince Congress that they needed to act. They can do it again, but I just don't think they will in 2021 or 2022.