What are the Major Differences Between the Democrats' & Republicans' Police Reform Bills?

What’s the story?

• Congress is debating police reform this week, but with the Senate taking up Republicans’ JUSTICE Act & the House taking up Democrats’ Justice in Policing Act, it’s unclear whether the bipartisan desire to act on reforms to policing practices will translate into a compromise that allows legislation to pass both chambers and be signed into law by President Donald Trump.
• While the two bills are very similar in some respects, there are also some significant differences between them. We’ll be tracking the legislative movement & potential evolution of the bills as the debate continues, and we’ll have a piece about their similarities for you later on Monday ― but here’s a look at the key differences between the bills as the week begins.

What are the major differences between the bills?

CHECKING POLICE MISCONDUCT RECORDS 

• Democrats’ bill would create the national police misconduct registry but doesn’t have an explicit requirement that it be checked by agencies during the hiring process, instead mandating that new hires be accredited within the state. 
• Republicans’ bill would explicitly require that law enforcement agencies check the database for an applicants’ misconduct history before hiring them.

CHOKEHOLD BANS 

• Republicans’ bill would incentivize law enforcement agencies to ban chokeholds in all cases except when a law enforcement officer’s life is jeopardy, and it does so by cutting agencies’ access to federal grants by 20% in the first-year of non-compliance and 25% in a subsequent year of non-compliance. 
• Democrats’ bill would ban chokeholds in all cases & cut non-compliant agencies’ federal law enforcement grants entirely. 
• The federal grants affected in both cases are the Byrne Justice Assistance Grants (JAG) program & the Community Oriented Policing Services (COPS) grant program, which each provide state & local law enforcement agencies with hundreds of millions of dollars in federal grants each year.

BANNING NO-KNOCK SEARCH WARRANTS IN DRUG CASES 

• Democrats’ bill would ban the use of no-knock search warrants in all drug cases at the federal, and incentivize states & localities to implement similar bans under penalty of a complete reduction in federal grants for non-compliance. 
• Republicans’ bill wouldn’t ban no-knock search warrants in drug cases, instead requiring law enforcement agencies to begin reporting information about the frequency & nature of all no-knock warrants to a database under penalty of a 20% reduction in federal grants in the first year, or 25% in a subsequent year. 

UNIFORMED CONSENT LOOPHOLE

• Republicans’ bill would make it unlawful for a federal law enforcement officer to engage in a sexual act while acting under the color of law, or with a person who has been arrested by, detained by, or is in the custody of a law enforcement officer. Consent wouldn’t be a defense to prosecution, and violators could face criminal penalties including a fine, prison term of up to 15 years, or both. It would also incentivize states to implement similar laws by providing $5 million in annual federal grants for preventing violence against women & providing sexual assault services. 
• Democrats’ bill wouldn’t address the so-called “uniformed consent loophole.” 

QUALIFIED IMMUNITY

• Democrats’ bill would eliminate the legal doctrine of qualified immunity, which courts have interpreted as barring individuals from recovering damages when law enforcement officers violate their rights unless there was a clearly established legal or constitutional right. 
• Republicans’ bill wouldn’t address qualified immunity.

CRIMINALIZING POLICE REPORT FALSIFICATION

• Republicans’ bill would establish a new criminal penalty for falsifying police reports in connection with a civil rights violation that results in serious bodily injury or death punishable by a 20-year maximum sentence, plus a 4-level sentencing enhancement in cases where a defendant knowingly & willfully falsifies such a report.
• Democrats’ bill wouldn’t address criminal penalties for falsifying police reports in violent civil rights cases. 

RACIAL, RELIGIOUS, & DISCRIMINATORY PROFILING

• Democrats’ bill would prohibit federal, state, and local law enforcement from racial, religious, and discriminatory profiling. Law enforcement agencies would be required to provide training on such profiling, collect data, and provide standardized reports to the Justice Dept. Failure to adopt best practices & policies combating profiling would result in federal grant funding being cut off.
• Republicans’ bill wouldn’t prohibit racial, religious, or discriminatory profiling.

STUDIES ON RACIAL DISPARITIES & POLICING

• Republicans’ bill would establish a bipartisan Commission on the Social Status of Black Men & Boys to carry out a systematic study of conditions affecting black men and boys, including homicide rates; arrest & incarceration rates; poverty; violence; fatherhood; mentorship; drug abuse, death rates; disparate income & wealth levels; school performance in all grade levels, including postsecondary education & college; and health issues. It would also establish a bipartisan National Criminal Justice Commission to recommend changes in federal oversight, policies, practices, and laws designed to prevent, deter, and reduce crime, violence, recidivism; improve cost-effectiveness; and ensure the interests of justice; in addition to recommending best practices for Use of Force Review Boards and law enforcement training for mental health, homelessness, and addiction.
• Democrats’ bill wouldn’t establish a bipartisan Commission on the Social Status of Black Men & Boys, or a bipartisan National Criminal Justice Commission. It would require the Government Accountability Office to study police officers’ training, vehicle pursuits, and use of force interactions with the public.

PATTERN & PRACTICE INVESTIGATIONS

• Democrats’ bill would grant the Dept. of Justice’s Civil Rights Division subpoena power to conduct pattern & practice investigations into discriminatory & unconstitutional policing practices. It would also create a program to provide state attorneys general with grants to conduct pattern & practice investigations.
• Republicans’ bill wouldn’t address pattern & practice investigations.

FUNDING DIFFERENCES: 

• Republicans’ bill would provide additional grant funding & establish new grant programs, including $112 million in FY2021 for complying with data reporting requirements; $100 million annually thru FY2025 for body camera purchases, their use, & storage of footage; $100 million for state & local governments to establish misconduct reporting systems; $70 million annually for de-escalation & behavioral health training plus $100 million annually for duty to intervene training. 
• Democrats’ bill would authorize less funding over the long-term its largest outlays are $750 million over FY2021-2023 for independent investigations of law enforcement misconduct & excessive use of force; $100 million over FY2021-2023 for pattern & practice investigations; and $28.3 million in FY2021 funding for developing law enforcement accreditation standards.

— Eric Revell

(Photo Credit: iStock.com / Joel Carillet)