Editor’s Note: CNN host Van Jones is the CEO of the REFORM Alliance, a criminal justice organization. The views expressed in this commentary are his own. View more opinion on CNN.
An endless stream of sickening videos from civilian cell phones and police camcorders has shown the world an undeniable truth: Our policing system in the United States is badly broken – and it needs to be completely reinvented and overhauled.
Police accountability systems are so pathetically inadequate that no single federal law or action – such as President Donald Trump’s forthcoming executive order on police reform – could hope to fix them all in one fell swoop. But even in an election year, even with the US government as polarized as it is, meaningful progress to lock in a set of basic improvements that address the worst symptoms and lay the groundwork for more fundamental changes is possible and necessary.
Below I will spell out where I think the common ground is.
But first, here’s a thought experiment. What if you gave 800,000 decent, law-abiding citizens handguns, batons, Tasers, pepper spray, fast cars and badges – and told them it was their job to maintain order in a big, diverse country?
Grand experiment with 800,000 officers
What if you told them, “Please follow the rules. But because you are good people doing a tough job, nobody is going to fire you … or sue you … or jail you … no matter what you do! Just please follow the rules!”?
What if you ran this experiment in a nation with a long, documented history of severe discrimination against one or more disfavored ethnic minorities?
How soon do you think you would have a huge mess on your hands? Which groups do you think would suffer the most from excesses or brutality?
Well, unfortunately, the above scenario is not a thought experiment. It is a pretty decent description of America’s law enforcement system.
This approach is turning out exactly as you would imagine – with the vast majority of people trying to do a good job, but way too many of them breaking the rules (even killing people) and getting away with it. The endless videos showing cops behaving lawlessly are entirely predictable because the mechanisms to enforce the law against law enforcement are almost completely nonexistent.
It is hard to FIRE bad cops. Police unions have made it their mission, over the years, to bubble wrap even the worst police officers in layers of protective red tape. As a result, even the best police chiefs have a hard time hacking through the bureaucracy to impose order – even when they are trying to get rid of notoriously brutal cops.
It is almost impossible to SUE bad cops. The US Supreme Court has granted qualified immunity to police officers; on Monday it declined to reexamine the doctrine. So, even if a cop rapes, unjustly beats or kills someone, it is extremely difficult for a citizen to sue a police officer individually in a court of law.
It is very difficult to JAIL bad cops. Meanwhile, prosecutors are reluctant to press charges against officers who break the law because prosecutors have to work with police officers on other cases. And juries are reluctant to pronounce a cop guilty of a serious crime.
The dangers of impunity for police
The result is a de facto “policy of impunity” for police officers – meaning that cops generally can violate their training, police policy, criminal law and the Constitution, without fearing serious consequence. It’s a recipe for disaster, on its face. But when you add well-documented racial bias against African Americans to the mix, you have an inevitable catastrophe for the black community.
Any human system without adequate oversight, checks and balances will tend toward corruption and abuse. That’s why we have meat inspectors; not because we hate the butchers. That’s why we have building inspectors; not because we despise all construction workers. The reason we maintain strict oversight over both professions is because otherwise we would have a national epidemic of food poisoning and collapsing buildings. By the same logic, lack of meaningful oversight is a major reason we have an epidemic of unlawful police violence.
Until we address the core issue of “police impunity,” we will continue to see outrageous misconduct – especially targeted at people of color.
That said, penetrating the hardened bunkers of unaccountable police power will take years, not weeks. Before the presidential election sucks up all the oxygen this fall, leaders in DC should move quickly to solve as many problems as they can now. And their actions should set the table for more significant changes after the election.
Congress: Essential elements of police reform
Democrats and Republicans in the House and Senate are developing legislative proposals on police reform.
Misguided funding programs that channel federal dollars to local law enforcement have contributed to the massive expansion of local police forces over the past 40 years. So, even though the federal government can’t directly regulate state and local police, it can use the power of the massive federal purse to effect change in the way conditioning federal highway funding helped to change state drunken driving laws.
Any bill worth passing Congress must include several bare minimum items.
1. Ban choke holds: Congress should prohibit federal funding from going to any state and local police departments and law enforcement agencies that don’t adopt tougher policies on when the use of deadly force is permitted. Police must especially ban the hideous choke hold restraints that killed George Floyd, Eric Garner and many others. Some cities and states have already done so; the rest of the nation must follow suit. Federal tax dollars should not go to support any police department that permits choke holds – or any other maneuvers that restrict breathing – as a policing tool.
2. Eliminate no-knock entries: Congress also needs to address the use of no-knock entries, like the one that led to the death of Breonna Taylor in Louisville, Kentucky. Analysis of these entries show that they have evolved from an unusual tactic used in high-risk situations to an everyday policing tool, used to serve low-level drug warrants and the like. These dangerous entries present terrible risks to officers and citizens, as the Taylor case demonstrates, and their use needs to be severely curtailed and subject to stringent oversight to ensure public safety and respect for citizens’ rights.
3. Mandate review boards: Police departments that receive federal funding should also be required to create review boards with civilian membership that can review the use of deadly force, compel the disclosure of documents and testimony, and issue public findings. Transparency is the cornerstone of any good government agency, and police can no longer be permitted to abuse citizens and then cover up that abuse. Review boards with teeth might have prevented a number of police killings, including the 2014 murder of Laquan McDonald by a Chicago police officer who had been subject to 20 complaints for excessive force.
4. Decertify bad cops: State and local police departments that get federal money must have decertification programs with teeth that revoke the certification of cops who use deadly force illegally.
5. Register bad cops: And we need a “bad cop” registry that identifies officers who have been fired for misconduct, especially the use of excessive force, so that they can’t simply move from department to department to commit more wrongdoing.
The first two steps would help save lives. And the last three steps would give good police chiefs and communities better tools to find and weed out the worst elements. Fortunately, many of these ideas are already under consideration in the US House.
But Congress should try to go further – if not in this summer’s bill, then in the next ones.
1. Fix immunity: Congress needs to roll back the woefully misguided doctrine of “qualified immunity,” which protects officers who commit constitutional violations from the kind of civil liability that any other citizen would face.
2. Involve the feds: Congress should create an enhanced federal role in investigating officer misconduct committed during the use of deadly force.
3. Support de-escalation: Congress should mandate tougher training requirements on de-escalation for local police departments.
4. Support mental health: Congress needs to repurpose some federal police dollars into hiring mental and behavioral health specialists. It is unfair to expect police officers to also function as therapists, marriage counselors and psychologists.
Those steps would also create more checks and balances, less violence and more peaceful streets.
Trump: Steps the administration should take
While President Trump waits for Congress to pass a bill, he can solve some problems by executive order.
1. Condition use of force: The President could order a review of the use of federal-state policing task forces, requiring states to agree to federal conditions on use of force and other policing tactics if they want federal help.
2. End military policing program: The President should end the Pentagon’s infamous 1033 program, which distributes military equipment to local police departments, many of them small departments with just a few dozen officers. This program has helped to fuel the rise of the “warrior cop” mentality that lies at the heart of many instances of excessive force. If a police department really believes it needs an urban assault vehicle, it should be put to the discipline of paying for it.
3. Deal with mental health: The President should order a comprehensive plan to address the response of police to persons undergoing a mental health crisis. We need national standards that address how police can work with (or even cede the response to) trained mental health professionals who can divert people into needed psychiatric treatment who would otherwise languish in jail.
4. Ban federal choke holds: The President must impose a use of force standard on federal law enforcement that would make clear that choke holds and other forms of excessive force won’t be tolerated.
I am not na?ve. I know that the task of transforming policing is not going to be accomplished with one law, with one executive order or even with several. The broken culture of policing and the lack of accountability for cops who use deadly force against black and brown people is too deeply rooted to change overnight.
But this summer, our nation’s leaders can take meaningful steps and put down important markers.