What Role Might the Federal Government Play in Law Enforcement Reform?

What Role Might the Federal Government Play in Law Enforcement Reform?

Updated June 1, 2020
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. Congressional interest in policing reform revolves
If Congress wants to influence local policing, it can hone at
primarily around the public’s confidence in the police and
least three items in the federal criminal justice toolkit:
accountability for excessive use of force. What role should
policing-related data collection by the U.S. government,
Congress play in facilitating efforts to bolster confidence in
federal processes to investigate local police misconduct,
the police? Should Congress seek to improve law
and the relationship between the Department of Justice
enforcement’s accountability regarding the excessive use of
(DOJ) and police throughout the United States.
force? These questions are bounded by limits of
congressional authority.
Federal Data Col ection Efforts on Police Use of
Force
Limits of Congressional Authority
The federal government collects and disseminates limited
The federalized system of government in the United States
data on the use of force by state and local police. Several
limits the influence Congress can have over state and local
programs gather this kind of information, but none collects
law enforcement policies.
data on every use of force incident in the United States.
The U.S. Constitution established a federal government of
 On January 1, 2019, the Federal Bureau of Investigation
limited powers. A general police power is not among them.
(FBI) launched its use of force data collection system.
That authority is largely reserved for the states. The
The FBI program collects data on incidents that result in
Constitution, however, does vest Congress with legislative
the death or serious bodily injury of a person, or when a
powers under the Spending, Commerce, Territorial, and
law enforcement officer discharges a firearm at or in the
Necessary and Proper Clauses, as well as under the
direction of a person. Law enforcement agencies are
enforcement sections of the Civil War Amendments.
encouraged, but not required, to participate. The FBI has
Congress has exercised this authority in the past to enact
yet to release any publications using these data.
legislation that relates to law enforcement matters. Yet even
here, its authority is not boundless.
 Every three years, in its Police Public Contact Survey
(PPCS), the Bureau of Justice Statistics collects data on
Congress may spend for the general welfare and thereby
citizens’ interactions with police, including police use of
encourage states to take or refrain from various activities. In
force. While the PPCS produces reliable national
doing so, however, the encouraged state action must relate
estimates of police use of force, it is a survey, not a
to the purpose for which federal funds are spent. Moreover,
census of all such incidents. The most recent data
state action may be encouraged, not commandeered or
available are from 2015.
compelled. Commandeering and compulsion are also
beyond the scope of the Commerce Clause, which
 The National Violent Death Reporting System
otherwise empowers Congress to regulate the flow,
(NVDRS), administered by the Centers for Disease
instrumentalities, and substantial impacts of interstate and
Control and Prevention, operates in all states, the
foreign commerce. Congress may enact model legislation
District of Columbia, and Puerto Rico. Researchers in
for federal enclaves, but its reach there is geographically
these states gather and link records from law
limited. The Necessary and Proper Clause permits
enforcement, coroners and medical examiners, vital
implementing legislation, but only to the extent this
statistics, and crime laboratories. The NVDRS can
legislation reasonably relates to powers that the
provide data on deaths resulting from “legal
Constitution elsewhere grants to the federal government.
interventions.”
Finally, each of the Civil War Amendments—the
Thirteenth, Fourteenth, and Fifteenth Amendments—
 Congress passed the Death in Custody Reporting Act of
conveys the power to enforce its provisions by appropriate
2013 (DCRA, P.L. 113-242), which reauthorized the
legislation, but that power is cabined by the terms of the
Death in Custody Reporting program. This act requires
amendment and by judicial interpretation of its breadth.
states to submit data to DOJ regarding the death of any
person who is detained, under arrest, in the process of
being arrested, en route to be incarcerated, or
incarcerated at a municipal or county jail, a state prison,
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What Role Might the Federal Government Play in Law Enforcement Reform?
a state-run boot camp prison, a boot camp prison that is
community groups. This component of DOJ does not
contracted out by the state, any local or state contract
investigate or prosecute crimes, take sides in a dispute,
facility, or any other local or state correctional facility
impose solutions, assign blame, or assess fault.
(including juvenile facilities). States face up to a 10%
reduction in their funding under the Edward Byrne
 Funder—DOJ awards grants to state and local police, as
Memorial Justice Assistance Grant (JAG) program if
well as researchers probing important policing
they do not provide the data. Starting with FY2019,
questions.
states have been required to submit data required by
DCRA as a condition of receiving JAG funding.
Law Enforcement Reform Efforts
in the Current Congress
Investigating Law Enforcement Misconduct
Despite limits on congressional power to shore up trust and
The federal government has several ways to ensure that
accountability within local policing contexts, legislation
state and local law enforcement practices and procedures
introduced in the116th Congresses seeks to influence police
adhere to constitutional norms. The first is criminal
practices. Such legislation would attempt to (1) better
enforcement brought directly against an offending officer
understand and track use of force by law enforcement; (2)
under federal civil rights statutes. Section 242 of Title 18
reform how investigations of police-involved deaths are
makes it a federal crime to willfully deprive a person of his
conducted; (3) require law enforcement agencies to provide
or her constitutional rights while acting under color of law.
more training on issues such as implicit bias or racial
Similarly, Section 241 of Title 18 outlaws conspiracies to
profiling to their officers; (4) promote diversity in police
deprive someone of his or her constitutional rights.
hiring; and (5) expand the use of body-worn cameras. Much
of the legislation introduced in this Congress focuses on
More broadly, a key federal statute focuses on the civil
altering existing federal tools historically used to shape
liability of law enforcement agencies as a whole, rather than
local policing.
the wrongdoing of individual officers. Section 12601 of
Title 34 prohibits government authorities or their agents
Policy Options
from engaging in a “pattern or practice of conduct by law
There are several options policymakers might examine
enforcement officers ... that deprives persons of rights ...
should they choose to play a role in facilitating better
secured or protected by the Constitution or laws of the
police-community relations and accountability for
United States.” It authorizes the Attorney General to sue for
excessive use of force, including the following:
equitable or declaratory relief when he or she has
“reasonable cause to believe” that such a pattern of
 placing conditions on federal funding to encourage law
constitutional violations has occurred.
enforcement to adopt policy changes to promote better
community relations by, for example, expanding
The Influence of DOJ on Policing
training or reforming how use of force investigations are
DOJ and its component agencies, such as the FBI, can help
conducted;
shape policing in the United States. Such influence can be
seen in at least four roles that DOJ and its components play
 requiring DOJ to develop model policies or best
on this stage:
practices regarding the use of force, training standards,
or accreditation;
 Enforcer—DOJ can investigate and prosecute federal
laws related to police abuse of power. For example, the
 expanding efforts to collect more comprehensive data on
FBI can initiate cases involving official misconduct,
the use of force by law enforcement officers;
which DOJ can prosecute. In addition, DOJ’s Civil
Rights Division can review the patterns or practices “of
 providing grants to law enforcement agencies for the
law enforcement agencies that may be violating people’s
federal rights” and seek civil remedies when “law
purchase of body-worn cameras for their officers ;
enforcement agencies have policies or practices that

foster a pattern of misconduct by employees.”
taking steps to facilitate investigations and prosecutions

of excessive force by amending 18 U.S.C. Section 242

to reduce the mens rea standard in federal prosecutions,
Policy leader—DOJ can serve as a model for state and
or place conditions on federal funds to promote the use
local law enforcement. For example, it issues guidance
of special prosecutors at the state level; or
for law enforcement agencies; sets policies for its own
agencies that resonate broadly in federal, state, and local
 using the influence of congressional authority to affect
law enforcement; and provides training.
the direction of national criminal justice policy.
 Convener—DOJ brings together representatives from
law enforcement agencies and local communities to
Nathan James, Analyst in Crime Policy
discuss policing issues. For example, its Community
Ben Harrington, Legislative Attorney
Relations Service facilitates discussions among police,
IF10572
government officials, community residents, and various
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What Role Might the Federal Government Play in Law Enforcement Reform?

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https://crsreports.congress.gov | IF10572 · VERSION 4 · UPDATED