Updated November 16, 2018
What Role Might the Federal Government Play in
Law Enforcement Reform?
Over the past few years, several high-profile police-
Tools Available to the Federal
involved shootings and alleged instances of excessive force
Government to Promote Law
have generated congressional interest in state and local
Enforcement Reform
policing. After declining in both 2014 and 2015, confidence
If Congress wants to influence local policing, it can hone at
in law enforcement has rebounded to historical norms, but
least three items in the federal criminal justice toolkit:
Gallup poll data indicate that confidence varies by race,
policing-related data collection by the U.S. government,
ethnicity, ideology (i.e., liberal, moderate, and
federal processes to investigate local police misconduct,
conservative), and age. Congressional interest in policing
and the relationship between the Department of Justice
revolves around confidence and accountability. What role
(DOJ) and police throughout the United States.
should Congress play in facilitating efforts to bolster
confidence in the police? Should Congress seek to improve
Federal Data Collection Efforts on Police Use-of-
law enforcement’s accountability regarding the excessive
Force
use-of-force? These questions are bounded by limits of
The federal government collects and disseminates limited
congressional authority.
data on the use-of-force by state and local police. Several
programs gather this kind of information, but none collects
Limits of Congressional Authority
data on every use-of-force incident in the United States.
The federalized system of government in the United States
limits the influence Congress can have over state and local
The Federal Bureau of Investigation (FBI) is working
law enforcement policies.
with state and local law enforcement to develop a use-
of-force national data collection program. The FBI
The U.S. Constitution established a federal government of
program is to collect data on incidents that result in the
limited powers. A general police power is not among them.
death or serious bodily injury of a person, or when a law
That authority is largely reserved for the states. The
enforcement officer discharges a firearm at or in the
Constitution, however, does vest Congress with legislative
direction of a person. The FBI is expected to launch this
powers under the Spending, Commerce, Territorial, and
program in 2018, pending the approval of the Office of
Necessary and Proper Clauses, as well as under the
Management and Budget.
enforcement sections of the Civil War Amendments.
Congress has exercised this authority in the past to enact
Every three years, in its Police Public Contact Survey
legislation that relates to law enforcement matters. Yet even
(PPCS), the Bureau of Justice Statistics collects data on
here, its authority is not boundless.
citizens’ interactions with police, including police use-
of-force. While the PPCS produces reliable national
Congress may spend for the general welfare and thereby
estimates of police use-of-force, it is a survey, not a
encourage states to take or refrain from various activities.
census of all such incidents.
In doing so, however, the encouraged state action must
relate to the purpose for which federal funds are spent.
The National Violent Death Reporting System
Moreover, state action may be encouraged, not
(NVDRS), administered by the Centers for Disease
commandeered or compelled. Commandeering and
Control and Prevention, operates in 40 states.
compulsion are also beyond the scope of the Commerce
Researchers in these states gather and link records from
Clause, which otherwise empowers Congress to regulate the
law enforcement, coroners and medical examiners, vital
flow, instrumentalities, and substantial impacts of interstate
statistics, and crime laboratories. The NVDRS can
and foreign commerce. Congress may enact model
provide data on deaths resulting from “legal
legislation for federal enclaves, but its reach there is
interventions.”
geographically limited. The Necessary and Proper Clause
permits implementing legislation, but only to the extent this
Congress passed the Death in Custody Reporting Act of
legislation reasonably relates to powers that the
2013 (P.L. 113-242), which reauthorized the Death in
Constitution elsewhere grants to the federal government.
Custody Reporting program. This act requires states to
Finally, each of the Civil War Amendments—the
submit data to DOJ regarding the death of any person
Thirteenth, Fourteenth, and Fifteenth Amendments—
who is detained, under arrest, in the process of being
conveys the power to enforce its provisions by appropriate
arrested, en route to be incarcerated, or incarcerated at a
legislation, but that power is cabined by the terms of the
municipal or county jail, a state prison, a state-run boot
amendment and by judicial interpretation of its breadth.
camp prison, a boot camp prison that is contracted out
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What Role Might the Federal Government Play in Law Enforcement Reform?
by the state, any local or state contract facility, or any
investigate or prosecute crimes, take sides in a dispute,
other local or state correctional facility (including
impose solutions, assign blame, or assess fault.
juvenile facilities). States face up to a 10% reduction in
their funding under the Edward Byrne Memorial Justice
Funder—DOJ awards grants to state and local police, as
Assistance Grant (JAG) program if they do not provide
well as researchers probing important policing
the data.
questions.
Investigating Law Enforcement Misconduct
Law Enforcement Reform Efforts
The federal government has several ways to ensure that
in the Past Congress
state and local law enforcement practices and procedures
Despite limits on congressional power to shore up trust and
adhere to constitutional norms. The first is criminal
accountability within local policing contexts, legislation
enforcement brought directly against an offending officer
was introduced in the 114th and 115th Congresses to
under federal civil rights statutes. Section 242 of Title 18
influence police practices. Such legislation included
makes it a federal crime to willfully deprive a person of his
attempts to (1) better understand and track use-of-force by
or her constitutional rights while acting under color of law.
law enforcement; (2) promote independent investigation of
Similarly, Section 241 of Title 18 outlaws conspiracies to
the use of deadly force by police; (3) minimize police use
deprive someone of his or her constitutional rights.
of military-grade gear and vehicles; (4) require law
enforcement agencies to provide more training on issues
More broadly, a key federal statute focuses on the civil
such as implicit bias or racial profiling to their officers; (5)
liability of law enforcement agencies as a whole, rather than
promoting diversity in police hiring; and (6) expanding the
the wrongdoing of individual officers. Section 12601 of
use of body-worn cameras. Much of the legislation
Title 34 prohibits government authorities or their agents
introduced in the past two Congresses focused on altering
from engaging in a “pattern or practice of conduct by law
existing federal tools historically used to shape local
enforcement officers ... that deprives persons of rights ...
policing.
secured or protected by the Constitution or laws of the
United States.” It authorizes the Attorney General to sue for
Policy Options
equitable or declaratory relief when he or she has
There are several options policymakers might examine
“reasonable cause to believe” that such a pattern of
should they choose to play a role in facilitating better
constitutional violations has occurred.
police-community relations, including the following:
The Influence of DOJ in the Criminal Justice Realm
placing conditions on federal funding to encourage law
DOJ and its component agencies, such as the FBI, can help
enforcement to adopt policy changes to promote better
shape policing in the United States. Such influence can be
community relations;
seen in at least four roles that DOJ and its components play
on this stage:
expanding efforts to collect more comprehensive data on
the use-of-force by law enforcement officers;
Enforcer—DOJ can investigate and prosecute federal
laws related to police abuse of power. For example, the
providing grants to law enforcement agencies for the
FBI can initiate cases involving official misconduct,
purchase of body-worn cameras for their officers;
which DOJ can prosecute. In addition, DOJ’s Civil
Rights Division can review the patterns or practices “of
taking steps to facilitate investigations and prosecutions
law enforcement agencies that may be violating people’s
of excessive force by amending 18 U.S.C. Section 242
federal rights” and seek civil remedies when “law
to reduce the mens rea standard in federal prosecutions,
enforcement agencies have policies or practices that
or place conditions on federal funds to promote the use
foster a pattern of misconduct by employees.”
of special prosecutors at the state level;
Policy leader—DOJ can serve as a model for state and
funding Community Oriented Policing Services (COPS)
local law enforcement. For example, it issues guidance
hiring grants so law enforcement agencies can have
for law enforcement agencies; sets policies for its own
more officers engaging in community policing
agencies that resonate broadly in federal, state, and local
activities; or
law enforcement; sponsors studies that examine policing
practices; and provides training.
using the influence of congressional authority to affect
the direction of national criminal justice policy.
Convener—DOJ brings together representatives from
law enforcement agencies and local communities to
discuss policing issues. For example, its Community
Nathan James, Analyst in Crime Policy
Relations Service facilitates discussions among police,
Ben Harrington, Legislative Attorney
government officials, community residents, and various
IF10572
community groups. This component of DOJ does not
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What Role Might the Federal Government Play in Law Enforcement Reform?
Disclaimer
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https://crsreports.congress.gov | IF10572 · VERSION 3 · UPDATED