Joe Biden called on Congress Wednesday night to “root out systematic racism in our criminal justice system and enact police reform in George Floyd’s name that passed the House already.” The Democrats’ “George Floyd Justice in Policing Act” is a textbook example of politicians responding to a sensational crime with an attitude of “we must do something; this is something, so we must do it.” It is no dishonor to George Floyd’s memory, and no insult to righteous anger at his death, to oppose this legislation and prefer better proposals that can draw bipartisan support.
The job of enforcing the law is never done, and neither is the work of enforcing the law better. Conservatives have championed many improvements in law enforcement in the past few decades — some to prevent more crime, some to catch more criminals, some to protect citizen liberty from the law — and we should not reflexively resist further changes. But neither should we allow periods of panic to undo things that have been proven to work.
We begin with first principles. Policing is traditionally and constitutionally a local obligation. Most progress in policing has come from cities and states experimenting with new approaches suited to their own populations and terrain, and seeing what works. The Democrats’ instinct to micromanage local departments across the country with one-size-fits-all federal mandates is not only constitutionally questionable, it also risks freezing police practices in place when reforms should be evaluated and continually revised by state and local governments that are better equipped to provide ongoing supervision.
The federal government should start by undoing its own mischief. It should repeal federal laws against marijuana, scale back the costly and failed War on Drugs, and place clearer lines of accountability on joint federal–state task forces, so that combined operations do not shield state officers from the ordinary channels of state law.
Federal qualified-immunity doctrine arose from a reasonable premise (police should not be sued for enforcing unconstitutional laws passed by legislatures) and grew as a way for activist courts to invent new, unwritten “rights” without ruinous retroactive liability for cops who could never have imagined what creative judges might do. But it has grown into its own body of judicial fictions, which Justice Clarence Thomas has called on the Supreme Court to revisit. Congress need not abolish qualified immunity, but it is supposed to be a creature of statute. Rather than punt the job of lawmaking to the Court, Congress can and should significantly rein in the qualified-immunity protection of misbehaving police who do not act in good faith.
The Democrats envision a vastly more intrusive federal role, based on fantasyland conceptions of crime and policing. The “George Floyd Justice in Policing Act” creates civil liability for “racial profiling,” broadly defining it to cover any “disparate impact on individuals with a particular characteristic.” Disparate impact is the alchemy by which progressives generate “racial discrimination” out of thin air. The fiction here is that if young black men are less than 6 percent of the overall population but are subjected to over 30 percent of total police stops, arrests, prosecutions, and prison sentences, the only conceivable explanation must be systemic racism in police departments and court processes.
Set aside race for a moment, and we see this reasoning for the absurdity it is. By the Democrats’ lights, if more men than women are subjected to law-enforcement stops, that means “disparate impact” and thus “profiling,” because police are supposed to pretend that men do not commit vastly more crime than women. Yet, nobody would seriously dispute that the disparate rates of male arrest and incarceration are due to disparate rates of male crime — and, for that matter, young male crime. In fact, following their own logic to their own bizarre end, the bill even penalizes disparate impacts on the basis of gender. That could compel police departments to either greatly restrict stops of men, or expand stops of women for no good reason.
The same is true when applied to race. The majority of crime is reported to the police, not observed by the police. We know who is committing crimes not because of police suspicions but from victim reports, the bulk of them filed by people of the same race as the perpetrator. The remorseless fact is that young black men violate the law at rates that are themselves disparate to their share of the overall population — and perpetrate most of that crime against their own neighbors.
This is just one of countless ways “disparate impact” theory warps policy. Rather than grafting it onto our law, we should be purging it. As applied here, it would hopelessly distort honest police work and spawn endless litigation and enrichment of the trial bar. The bill is also, like most things to come from Nancy Pelosi’s Democrats, designed to funnel taxpayer money to left-wing activist groups, by appointing them to give “training” to police.
Tim Scott’s JUSTICE Act offers better policy ideas, including some sensible overlap with the Democrats’ proposals, and Democrats acted shamefully by filibustering Scott’s bill last year instead of engaging with him. As Scott observed Wednesday night, they “seemed to want the issue more than they wanted a solution.” While Scott (like the Democrats) envisions an expanded role for the Department of Justice in collecting data and criminalizing the falsification of police records, not all of his ideas need to be federalized. More states should take the lead on requiring body cameras and restricting no-knock warrants and dangerous chokeholds. Chokeholds are not the only issue with restraint techniques that can prove deadly: The Floyd case itself, like the Eric Garner case, illustrates the hazards of police restraining suspects in ways that compress their chests.
Other reforms must be pursued at the state level. Police unions are too powerful and too often act to protect misbehaving cops. The discipline of individual officers for abuses of citizens should not be the subject of collective bargaining. More states should take police prosecutions out of the hands of local district attorneys who need to maintain working relationships with local police, and handle them at the state level. And every level of government should look to pare back the number of laws the police must enforce, in order to reduce unnecessary encounters and focus on serious crime.
The madness of “Defund the Police” was originally understood to mean what it said: eliminating police departments by zeroing out their funding. That remains the hard Left’s long-term project, but it is politically unattainable because most Americans of all colors recognize the need for the men and women in blue, want them in their neighborhoods, and respect the difficulty of their jobs. Thus, elected Democrats are fleeing the slogan, while progressive activists have revised the “Defund the Police” campaign under other names. Many departments are being slashed both dramatically (through significant budget cuts) and gradually (through not filling slots opened by retirements — which are increasing as the job is made harder — and canceling new cadet classes). Of course, the funding does not disappear; it is reprogrammed to other agencies and to progressive activism, which, by design, makes reversing course more difficult.
This has happened in several cities across the country, and it is no accident that violent crime is surging in them. This may be of no moment to the anti-police ideologues, but it distresses many residents of the communities that have become laboratories for this progressive “life without cops” experiment.
Many Democrats said after the election that they wish to distance themselves from their party’s anti-police radicals. There is broad bipartisan space for incremental reforms to curb abuses and improve trust in police — trust that benefits the cops, too, at a time when police morale is desperately low. Biden himself acknowledged Wednesday night that “Republicans have their own ideas,” and gave lip service to “consensus” and “productive discussions” between the parties. If Democrats don’t merely want “the issue,” as Scott said, they should drop the posturing and get serious about finding some common ground.