By David M. Greenwald
Washington, DC – On the two year anniversary of the murder of George Floyd, President Biden will sign a historic executive order “to advance effective, accountable policing and criminal justice practices that will build public trust and strengthen public safety.”
“Police cannot fulfill their role to keep communities safe without public trust and confidence in law enforcement and the criminal justice system,” a White House statement said. “Yet, there are places in America today where the bonds of trust are frayed or broken. To heal as a nation, we must acknowledge that fatal encounters with law enforcement have disproportionately involved Black and Brown people.”
The President hopes the order will “enhance public trust by promoting accountability, transparency, and the principles of equality and dignity in policing and the larger criminal justice system.”
“Increased trust makes policing more effective and thereby strengthens public safety. Without that trust, victims do not call for help. Witnesses do not step forward. Crimes go unsolved. Justice is not served,” the Statement said.
It was two years ago that the murder of Floyd in Minneapolis sparked one of the largest social movements since the civil rights movement in the 50s and 60s, with calls from many to acknowledge the legacy of systemic racism in our criminal justice system and address the inequities faced by Black and Brown communities.
According to the White House, the executive order “mandates measures for all Federal law enforcement agencies, leveraging the President’s direct authority over the executive branch” as well as require “the use of federal tools such as guidance on best practices, training and technical assistance, and grantmaking to support reforms at State, Tribal, local, and territorial law enforcement agencies that will strengthen public trust and improve public safety across the nation.”
Among the tools is a national database of police misconduct created by the Attorney General in which all federal agencies must participate.
The database will include records of officer misconduct (including convictions, terminations, de-certifications, civil judgments, resignations and retirements while under investigation for serious misconduct, and sustained complaints or records of disciplinary actions for serious misconduct), as well as commendations and awards.
At the same time, the President believes that the data base will provide due process protections for officers.
“All federal agencies must use the database in screening personnel, and it will be accessible to state and local LEAs, who are encouraged to enter their records as well. The Attorney General will make aggregate data, by law enforcement agency, public, and will assess what whether and in what form records from the database may be accessible to the public,” the release explained.
Among the other innovations…
Strengthens Pattern or Practice Investigations. The EO requires steps to improve the investigation and prosecution of criminal civil rights violations, including directing the issuance of best practices for independent investigations and improving coordination to address systemic misconduct through pattern-or-practice cases.
Ensures timely and thorough investigations and consistent discipline. The EO requires Federal LEAs to adopt measures to promote thorough investigation and preservation of evidence after incidents involving the use of deadly force or deaths in custody, as well as to prevent unnecessary delays and ensure appropriate administration of discipline.
Mandates the adoption of body-worn camera policies. The EO orders all Federal LEAs to adopt and publicly post body-worn camera policies that mandate activation of cameras during activities like arrests and searches and provide for the expedited public release of footage following incidents involving serious bodily injury or deaths in custody.
Bans the use of chokeholds and carotid restraints unless deadly force is authorized, and restricts the use of no-knock entries. The EO orders all Federal LEAs to adopt policies that ban chokeholds and carotid restraints unless deadly force is authorized and restricts the use of no knock entries to a limited set of circumstances, such as when an announced entry would pose an imminent threat of physical violence.
Requires new standards that limit the use of force and require de-escalation for all federal agencies. The EO orders all Federal LEAs to adopt use of force policies with requirements that meet or exceed those in the Department of Justice’s updated use-of-force policy, which authorizes force only when no reasonably effective, safe, and feasible alternative appears to exist; authorizes deadly force only when necessary; and emphasizes de-escalation. The policy also imposes a duty to intervene to stop excessive force and a duty to render medical aid. Federal LEAs must conduct annual training on those policies, implement risk management tools to facilitate appropriate interventions before problematic behavior escalates, and ensure accountability for policy violations. The policy is publicly available on DOJ’s website.
Restores and expands upon the Obama-Biden Administration’s restrictions on the transfer of military equipment. The EO imposes sensible restrictions on the transfer or purchase with federal funds of military equipment that belongs on a battlefield, not on our streets. The list of prohibited equipment is broader than under the Obama-Biden Administration, and the EO’s mandate is broader than the George Floyd Justice in Policing Act (GFJPA) in that it pertains to all relevant programs, not only the Defense Department’s 1033 program. The EO continues to ensure that state and local LEAs can access and use appropriate equipment for disaster-related emergencies; active shooter scenarios; hostage or search and rescue operations; and anti-terrorism efforts.
There will also be reforms to the broader criminal justice system.
Directs a government-wide strategic plan to propose interventions to reform our criminal justice system. A new committee with representatives from agencies across the federal government will produce a strategic plan that advances front-end diversion, alternatives to incarceration, rehabilitation, and reentry. The Attorney General will also publish an annual report on resources available to support the needs of persons on probation or supervised release.
Improves conditions of confinement. The Attorney General, in consultation with the Secretary of Health and Human Services, will update procedures as necessary to increase mitigation of Covid-19 in correctional facilities; expand the publication and sharing of vaccination, testing, infection, and fatality data disaggregated by race, ethnicity, age, sex, disability, and facility; and to identify alternatives to facility-wide lockdowns and restrictive housing to reduce the risk of transmission. The Attorney General will also report to the President on steps to limit the use of restrictive housing and improve conditions of confinement, including with respect to the incarceration of women, juveniles, and persons in recovery.
Requires full implementation of the FIRST STEP Act. The Attorney General will update DOJ policy as necessary to fully implement the FIRST STEP Act and to report annually on implementation metrics, including an assessment of any disparate impact of the PATTERN risk assessment tool and steps to correct any such disparities.