JUSTICE Act: Incentivizing Bans on Chokeholds, Improving Law Enforcement Data Reporting, and Funding Police Training on De-Escalation & Historical Racism (S. 3985)

What is S. 3985?

(Updated January 31, 2021)

This bill — known as the Just and Unifying Solutions to Invigorate Communities Everywhere (JUSTICE) Act — would implement a number of policies aimed at reforming police practices to reduce the excessive use of force by law enforcement officers. The JUSTICE Act would use federal grant programs to incentivize state & local governments to ban chokeholds; improve the reporting of use of force data to the federal government and begin collecting & reporting data on the use of no-knock warrants; fund grants to increase the use of body cameras, and accommodate training in de-escalation, alternatives to the use of force, duty to intervene, and responding to behavioral health crises; and encourage hiring practices that reflect community demographics. It would also criminalize lynching, report falsification, and close the law enforcement consent loophole; while also establishing commissions to study & provide recommendations on police use of force review boards, and issues affecting the social status of black men & boys. A breakdown of the 106 page bill’s various provisions can be found below.

LAW ENFORCEMENT REFORMS

George Floyd & Walter Scott Notification Act: This section would seek to improve reporting of use of force data by police to help inform training & de-escalation methods, as only 40% of law enforcement officer information is reported to the FBI’s National Use of Force Data Collection database. It would: 

• Require state & local governments to report on annual basis to the FBI about use of force events by law enforcement that cause death or serious injury — including any discharge of a firearm by a law enforcement officer & any discharge of a firearm by a civilian at an officer — plus events where law enforcement officers are seriously injured or killed in the line of duty.

• Require the FBI to make the information available to the public within one year of this bill’s enactment and annually thereafter.

• Impose an initial reduction in federal grant funding of up to 20% for state & local governments that fail to comply with this reporting requirement in the first year, with an additional reduction of up to 5% for each year of non-compliance thereafter (up to a maximum reduction of 25%).

• Direct funds withheld from non-compliant state & local governments to states & localities that comply with this section.

• Allow state & local governments to request technical assistance & training from the FBI for the collection & submission of data.

The section is named after George Floyd, an unarmed black man who was killed by Minneapolis Police who used a chokehold on him for more than 8 minutes after he used a counterfeit $20 bill in 2020; and Walter Scott, an unarmed black man who was shot and killed by a North Charleston police officer in South Carolina when he fled after being stopped for a non-functioning brake light.

Breonna Taylor Notification Act: This section would establish a data reporting system for the use of no knock search warrants, as there is currently no standardized data tracking about their use. It would:

• Require states & localities to annually report data to the Justice Dept. on the use of “no-knock” warrants, including information about the reason why the warrant was issued & each violation of law listed on the warrant; whether force was used resulting in property damage, serious bodily injury, or death to any person; demographic information of each person found at the location authorized for entry under the warrant; whether the correct address was entered; whether the warrant required all required legal information; and crime rate data for the locality.

• Require the Attorney General to publish a public report of this information, including privacy protections to preserve the integrity of ongoing investigations.

• Impose a deduction of up to 20% in federal grant funding for states or localities that fail to comply.

The section is named after Breonna Taylor, an unarmed black woman who was killed by Louisville Metro Police officers executing a no-knock search warrant after her boyfriend opened fire on officers, thinking they were intruders. One of the main targets of the warrant was Taylor’s ex-boyfriend, who was believed to have received drug packages at her apartment, although no drugs were found in the search.

Data Guidance & Compliance Assistance: Within 180 days of this bill’s enactment, the Attorney General would be required to issue a guidance on best practices relating to establishing standard & consistent data collection systems that capture the above provisions after consulting & coordinating with the FBI and state & local law enforcement agencies. To help agencies comply with those requirements, a new grant program would be established with $112 million in funding for fiscal year 2021 to ensure that budgetary limitations don’t prevent law enforcement agencies from accurately & sufficiently reporting the required information.

Incentivizing Chokehold Bans: State & local governments would be required to put in place policies severely restricting the use of chokeholds, except in situations where deadly force is authorized, or that government would be prohibited from receiving Byrne grant program or COPS grant program funds for a fiscal year in which such policies aren’t in effect before the start of that year.

Criminalizing False Police Reports: A new criminal penalty would be established for falsifying reports in connection with a civil rights violation that results in serious bodily injury or death. It would be punishable by a 20-year maximum sentence, and there would be a 4-level enhancement under federal sentencing guidelines in cases where a defendant knowingly and willfully falsifies a report in connection with a civil rights violation.

Body-Worn Camera Partnership Program & Penalties for Non-Compliance: A new matching federal grant program would be established & administered by the Bureau of Justice Assistance to provide law enforcement officers with access to body-worn cameras and technology, training, and resources to ensure their optimal use. It would have $100 million in funding for each fiscal year from FY2021-2025. Grants could be used for the purchase of body-worn cameras; the development of best practices around their use; necessary training; requisite technological infrastructure; storage, retention, viewing, auditing, & release of footage; and personnel to administer the program.

States & local units of government would be incentivized to enact best practices for the use of body-worn cameras by conditioning eligibility for this funding on the department’s work to implement the required guidelines that: were developed with input from the community, crime victim organizations, and prosecutors; require body-worn cameras to be used at all times that an officer arrests or detains anyone; ensure officers are properly trained on the proper use of body-worn cameras in the field; and suitably handle recorded content.

Standards would be established for privacy & data retention, and making footage publicly available when appropriate to promote community confidence and transparency. Governments receiving grants under this section would be required to submit a report each year to the Bureau of Justice Assistance each year it receives funding, including a summary of the activities carried out through the use of the funding.

Entities receiving federal funding to purchase body-worn cameras would have to implement the necessary guardrails for their use and discipline law enforcement officers who intentionally fail to ensure the device is engaged, functional, and properly secured at all times. Failure to do so would result in a 20% reduction in federal funding each year that action isn’t taken to satisfy the aforementioned requirements. An additional 5% reduction would be added (up to a maximum reduction of 25%) if entities continue to fail to institute such policies in the second year. Funds subject to penalties would be reallocated to compliant states & localities.

Law Enforcement Records Retention: Law enforcement agencies would be required to maintain employment & disciplinary records of law enforcement officers for no less than 30 years through a covered system and carefully review the records of any officer before hiring them. Specifically, agencies would have to search & obtain employment & disciplinary records of the applicant from each agency they previously worked at to determine whether the applicant has a disciplinary record, internal investigations record, or record of an award or commendation.

Records would include substantiated allegations of misconduct & internal investigation records as well as awards or commendations. Disciplinary records would include any written document regarding an allegation of misconduct by an officer that is substantiated and adjudicated by a government agency or court, unless overturned by an appeal, and results in adverse action by the employing law enforcement agency or criminal charges. 

State & local law enforcement agencies that don’t establish & implement these systems would be ineligible for key sources of federal funding. Each state would receive a one-time grant of at least $1 million to establish these new systems & practices, and a total of $100 million in appropriations would be authorized for this purpose.

Law Enforcement Agency Hiring & Education: When the demographic makeup of a law enforcement agency differs dramatically from the community they serve, this section would allow that jurisdiction to use COPS grants to hire recruiters and enroll candidates that more closely represent the community. 

The Edward Byrne Memorial Justice Assistance Grant Program would be reauthorized at $800 million for each fiscal year FY2021-2025; while the Cops on the Beat Grant Program would be reauthorized at $400 million for each fiscal year FY2021-2025. Within one year of this bill’s enactment, the DOJ would study & submit to Congress a proposal regarding a possible implementation method to improve accountability for law enforcement agencies that receive funds from covered grant programs.

An education program for law enforcement agencies through the Smithsonian Museum of African American History would be funded regarding the history of racism in the U.S., improving relationships between law enforcement & the communities they serve, and training eligible program participants who can effectively train their law enforcement peers in their states & communities. It would authorize $2 million for each fiscal year FY2021-2025.

Alternatives to the Use of Force, De-escalation, Behavioral Health Crises, & Duty to Intervene Training: This section would fund both the COPS Office at the Justice Dept. to create training programs & best practices, and the Byrne-JAG grant program to award funding to jurisdictions to help pay for the training. Training curricula would be developed for alternatives to use of force, de-escalation, and responding to behavioral health crises. Development would occur in consultation with law enforcement agencies, labor organizations, professional law enforcement organizations, and mental health organizations. 

The COPS Office would establish a process for certifying public & private entities to deliver training using either the curricula developed by the COPS Office or equivalent training, and would receive an annual appropriation of $20 million from FY2021-2025 to pay for costs associated with conducting or procuring training. The Byrne-JAG grant program would receive an annual appropriation of $50 million from FY2021-2025 to help state & local law enforcement agencies pay for training costs.

The Justice Dept. would also develop training curricula on the duty to intervene, in which officers would be trained on policies for intervening when a fellow officer has crossed the line into using excessive force. A similar certification process for public & private entities to provide law enforcement agencies with training would be established, and $100 million would be authorized annually for FY2021-2025.

Justice for Victims of Lynching: This section would make lynching a federal crime that automatically warrants an enhanced sentence under existing federal hate crime laws, punishable by a sentence of up to 10 additional years imprisonment. It wouldn’t preclude murder charges from being filed, which can already be brought under existing law.

Closing the Law Enforcement Consent Loophole Act: This section would make it unlawful for a federal law enforcement officer to engage in a sexual act while acting under color of law or with an individual who has been arrested by, is detained by, or in the custody of a law enforcement officer. Consent would not be a defense to prosecution for unlawful conduct and a violator would be subject to criminal penalties including a fine, a prison term of up to 15 years, or both. It would also incentivize states to implement similar laws by authorizing additional grant funding to be used for the prevention of violence against women & sexual assault services. There would be $5 million authorized each fiscal year FY2021-FY2025 to carry out this section.

STUDIES

Commission on the Social Status of Black Men & Boys Act: The Commission would be established within the U.S. Commission on Civil Rights Office, and would consist of 19 members appointed by members of both political parties. If there is a partisan imbalance of Commission members after appointment is complete, the congressional leaders of the party with fewer members on the commission would jointly name additional members to create partisan parity. The Commission would meet within 30 days of all members being appointed and would meet at least quarterly, in addition to submitting an annual report.

The Commission would conduct a systematic study of the 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 document trends on those topics and report on the community impact of relevant government programs within the scope of such topics; and propose measures to alleviate and remedy the underlying causes of the conditions described through changes to laws, policies, or programs.

National Criminal Justice Commission Act: This Commission would be established to undertake a comprehensive review of the criminal justice system, submit recommendations to the president & Congress for federal criminal justice reforms, and provide findings & guidance to state, local, and tribal governments. The review would encompass all areas of the criminal justice system, including criminal justice costs, practices, and policies of the federal state, local, and tribal governments. Within 18 months of the Commission’s first meeting, it would submit its recommendations for changes in federal oversight, policies, practices, and laws designed to prevent, deter, and reduce crime & violence, reduce recidivism, improve cost-effectiveness, and ensure the interests of justice. 

The Commission would consist of 14 members appointed by members of both political parties based upon knowledge & experience in a relevant area of the Commission’s jurisdiction. It would receive $7 million for both fiscal years 2020 & 2021 to carry out its mission, and would sunset 60 days after it submits its report to Congress.

Best Practices & Study: The National Criminal Justice Commission would also conduct a study on the establishment & operation of Use of Force Review Boards by States & units of local government, wherein citizens can assist law enforcement agencies in reviewing use of force incidents, as well as best practices for developing standards for law enforcement officer due process. The Commission would submit recommendations for its findings, including recommended best practices for State and Local Use of Force Review Boards. 

Additionally, the Commission would study law enforcement training, crisis intervention teams, co-responder programs, personnel requirements, federal resources, and pilot programs needed to improve nationwide law enforcement officer engagement on issues related to mental health, homelessness, and addiction. 

Argument in favor

The JUSTICE Act would put in place commonsense steps to bring about police reform and rebuild lost trust between communities of color and law enforcement. It would incentivize state & local governments to ban chokeholds & increase reporting of use of force incidents, no-knock warrants, and disciplinary actions against police officers to increase transparency. It would also fund de-escalation training programs, make lynching a federal hate crime.

Argument opposed

This bill doesn’t go far enough in banning chokeholds and the use of no-knock search warrants by federal law enforcement. It also doesn’t make any reforms to the legal doctrine of qualified immunity, which shields police officers from liability for abuses unless there’s a clear violation of civil rights. Alternatively, law enforcement agencies should be defunded in their entirety, rather than reformed and provided with additional funding to make changes.

Impact

Law enforcement agencies and the communities they serve; communities of color; state & local governments; and the Dept. of Justice.

Cost of S. 3985

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sen. Tim Scott (R-SC) introduced the JUSTICE Act to provide long-term solutions focused on police reform, accountability & transparency, and promote efforts to find solutions to systemic issues affecting people of color such as education & health disparities:

“Now is the time for reform. The murder of George Floyd and its aftermath made clear from sea to shining sea that action must be taken to rebuild lost trust between communities of color and law enforcement. The JUSTICE Act takes smart, commonsense steps to address these issues, from ending the use of chokeholds and increasing the use of body worn cameras, to providing more resources for police departments to better train officers and make stronger hiring decisions.”

Senate Majority Leader Mitch McConnell (R-KY) at a press conference said that “without Tim’s leadership, it would not have been possible, and without his leadership, I wouldn’t be putting this on the floor.” He added that “we’re serious about making a law here” and the bill “is not about trying to create partisan differences, this is about coming together and getting an outcome.” Sen. James Lankford (R-OK), one of the bill’s original cosponsors, called for bipartisanship and an open debate on amendments to the bill the same press conference:

“This is about making a law, not just making a point. This is not messaging; this is trying to be able to work in the most bipartisan way we can work. Get it on the floor, let’s have amendments, let’s talk through the process. Equal justice under the law shouldn’t be a partisan issue.”

Senate Minority Leader Chuck Schumer (D-NY) said the legislation is a “bad bill” and that Democrats are “figuring out what to do with it.” Sen. Sherrod Brown (D-OH) said that, "I want to work with people that want real police reform unlike the people that want to just act like they're doing reform. McConnell's going to always do what plays to his bigoted base and his money base."

Sen. Dick Durbin (D-IL), who apologized to Sen. Scott for calling his efforts a “token” on the Senate floor (Scott had previously said he’s been maligned as a “token” because of his race since he began working on police reform), said that addressing qualified immunity is “critical” and that:

“[The question] is whether or not McConnell is offering this in good faith. If this is a high-noon moment and [Republicans] want to embarrass the Democrats by having them vote ‘no’ and then we’ll adjourn, it’s a waste of time. But we shouldn’t rule out the possibility that the Senate could actually be the Senate.”

This legislation has the support of 47 cosponsors in the Senate, all of whom are Republicans. A companion bill in the House has been introduced by Rep. Pete Stauber (R-MN) — a former police officer who was shot in the head in the line of duty — which has the support of over 140 Republican cosponsors.

Of Note: USAFacts notes that the debate over police reform is constrained by a lack of up to date, standardized data from all parts of the country & all levels of government:

“One of the most striking things about data on excessive police force is what is lacking. Federal data on excessive force and police shootings is often too dated and inadequate to inform current discussions. Old, incomplete information is an ongoing trend across government data that needs addressing. Some, but not all, local governments provide policing statistics; however, what’s reported is incomplete and nonuniform, making national comparisons all but impossible.”

Media:

• Sponsoring Sen. Tim Scott (R-SC) Press Release

• JUSTICE Act Section-by-Section

• Senate Majority Leader Mitch McConnell (R-KY) Press Release

• Daily Caller

• NPR

• Politico

• Countable (Police Reform Context)

• Countable (JUSTICE Act Context)

• Countable (Policing Data Context)

• Countable (Qualified Immunity Context)

• USAFacts (Policing Data Context)

• White House Statement of Administration Policy (In Favor)