There is some hope on Capitol Hill that a bipartisan police-reform compromise — something between the JUSTICE Act Senate Republicans put forward last year and the George Floyd Justice in Policing Act that House Democrats passed in March — could be agreed upon in the near future.
While Senate Democrats outright rejected Senator Tim Scott’s aforementioned JUSTICE Act, even going so far as to deploy the “Jim Crow” filibuster to prevent a floor vote on it, Scott has shown a willingness to negotiate. He’s been in discussions with Representative Karen Bass and Senator Cory Booker, and says the group is “on the verge of wrapping this up in the next week or two.”
Of course, a compromise bill is not worth supporting just for the sake of passing something. Anything that has a chance of garnering the requisite 60 or so votes can’t include any of the most radical changes proposed by Democrats in their legislation. And anything Democrats get behind will include some provisions that would not by themselves be favored by the average Republican in Congress. So what might a compromise look like?
Some aspects of the George Floyd Justice in Policing Act are nonstarters. Its consideration of any disparity in the number of police “interviews, traffic stops, pedestrian stops, frisks and other types of body searches” that people of different races, ethnicities, national origins, religions, genders, gender identities, or sexual orientations face to be prima facie evidence of illegal profiling will need to be excised. So will its efforts to pay progressive advocacy organizations such as the ACLU and NAACP to create accreditation programs, and to force police departments to spend money on those programs. It would be a surprise if any Republicans signed on to a bill with anything as misguided or partisan as these provisions.
In other areas, however, there is room for compromise. Neither side has come forward with a reform that would balance the needs and efficacy of law enforcement with the public’s interest in discouraging the frivolous use of no-knock warrants. The JUSTICE Act would cut funding for state and local governments that failed to provide data on the use of no-knock warrants in their jurisdictions; Democrats favor a blanket ban on such warrants’ use in drug cases. The former provides no practical disincentive for their general usage while the latter is overbroad and could endanger officers’ lives as well as certain investigations. A middle ground — somewhere between data-gathering and prohibition — exists. As James Copland and Rafael Mangual have previously argued, a requirement that a “high-level commanding officer” or perhaps even the police chief sign-off on every raid of this kind might be a workable middle ground.
Chokeholds are another area where compromise could be had. The Republican plan would withhold certain federal funds from governments and departments that allow for their use, except in situations in which deadly force is required. Democrats want to do the same, but without the exception. Senator Scott should push for a step back from not only the Democrats’ proposal but his own, as they both represent overreactions to the horrifying use of force in the case of George Floyd. That pressure was used improperly with such deadly consequences in the Floyd case does not mean it should be disallowed in every instance. One can certainly conceive of dangerous situations in which an officer might naturally rely on such a technique, and it remains — in spite of the risks — a much less deadly way of incapacitating a suspect than resorting to the use of a firearm. Even limiting its usage to circumstances in which deadly force is required will force officers to make split-second calculations that could put themselves and others at risk.
Instead of hastily pursuing what is mostly a symbolic measure, Congress should require data-collection and -reporting on the use of chokeholds and the outcomes they lead to. It could also consider a more targeted solution, such as withholding funds from departments that allow for the use of chokeholds after a suspect has already been incapacitated and restrained and/or if back-up is already on the scene — both of which were true in the Floyd case.
Qualified immunity — a legal doctrine that “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” — is one of the more divisive issues in this debate. The JUSTICE Act did not touch the doctrine, while the George Floyd Justice in Policing Act would throw it out entirely. Neither extreme makes much sense. Of course officers should be protected from legal liability for violating rights and laws that do not yet exist. But this doctrine is sometimes abused on the basis of fact patterns rather than legal principles. Copland and Mangual again have an apt suggestion: Let “Congress helpfully clarify that the qualified-immunity doctrine applies only to clear changes in legal rights — not idiosyncratic fact patterns.”
Last, but not least, a compromise bill should include a version of the Fifth Amendment Integrity Restoration (FAIR) Act. While neither party’s police-reform bill currently addresses the issue of civil asset forfeiture, both should be interested in solving this problem. As it stands, federal law allows law enforcement to seize any property suspected to have connection to a crime, and then allows authorities to keep it if they’re able to prove such a connection by a preponderance of the evidence. The owners then must prove they were not involved in the crime or aware of their property’s connection to it. Worse, they’re not even entitled to legal representation in such proceedings.
The status quo represents not only a violation of Americans’ basic rights but a problem for community–police relations, because it entices local law enforcement to pursue civil asset-forfeiture cases for financial reasons. For obvious reasons, this breeds distrust. Tacking the FAIR Act on to a compromise bill would fix the problem. It’s a worthwhile addition, even if funding increases would be needed to offset departments’ losses.
Police reform is a controversial topic, particularly in these polarized times. Nevertheless, there seemingly exists room for compromise, and normative — rather than ideological — progress. It will require sacrifice from both sides. Democrats will need to let go of their wish list and the desire to please the most radical members of their base. Republicans will have to hand Joe Biden a bipartisan victory. Surely, even more horse-trading and wheel-greasing than is discussed above will be necessary before any bill becomes law. But there is a compromise there to be had, and if the two sides can come together to hammer it out, everyone will benefit.