ANALYSIS — Senators returned from a weeklong Memorial Day recess on June 1 to a Washington transformed. Three months of focus on combating the coronavirus with economic lockdowns, social distancing and trillions of dollars in relief had given way in the preceding days to protests, including some at the Capitol.
It was impossible to find a lawmaker who wasn’t horrified by the Memorial Day killing of George Floyd, an unarmed black man, by police in Minneapolis, which had set off marches and riots in cities from coast to coast.
Senators’ sympathy for the plight of African American victims of police brutality does not mean that Congress will end the problem of prejudiced law enforcement, though. It’s unlikely Congress could end it, even if a consensus on legislative remedies existed, and no such consensus exists.
If history is a guide, it shows that it’s unlikely Congress will even take steps that might significantly curtail the abuses.
After the GOP luncheon on June 2, Senate Majority Leader Mitch McConnell acknowledged the racism at the problem’s root and said those responsible for the death not only of Floyd but also of Breonna Taylor in McConnell’s home state of Kentucky, and Ahmaud Arbery in Georgia, should be brought to justice.
Still, he offered no solution. “If we could have figured out exactly what to do, I think we’d have done it years ago,” McConnell said.
It’s not that there aren’t ideas, even ones that have bipartisan support. Rather, it’s that the most likely ones to become law are the least likely to make a substantial difference, while the potentially more impactful ones are more controversial and come with corrosive side effects.
This, of course, is not the first time protesters have called on Congress to address the fact that police too often treat black people more harshly than they do white ones. The country blew up in the summer of 2014 after New York City Police Officer Daniel Pantaleo strangled Eric Garner in Staten Island for selling loose cigarettes. The next month, protests and riots followed Officer Darren Wilson’s shooting of Michael Brown while attempting to arrest him for shoplifting in Ferguson, Missouri.
Then, as now, the Senate Judiciary Committee, under Republican control, pledged to investigate. Then, as now, the Congressional Black Caucus and its allies proposed remedies, ranging from banning police chokeholds to enlisting independent prosecutors to handle cases of alleged police misconduct.
What came of it? Not much.
In relatively short order, Congress responded to the killings by offering grants to states and localities to purchase body cameras to record interactions between police and citizens. In December 2014, it reauthorized a long-expired law encouraging localities to report to the Justice Department on deaths in police custody. And the following January, President Barack Obama issued an executive order limiting the transfer of military equipment to police departments.
If any of those steps made a difference, it was around the margins.
A 2017 study that looked at whether police officers in Washington, D.C. wearing body cameras used force less often than those not wearing cameras found that they did not.
The Justice Department has never implemented the death-in-custody law. A January letter from House Judiciary Chairman Jerrold Nadler and Congressional Black Caucus Chairwoman Karen Bass to DOJ Inspector General Michael Horowitz complained that five years after the law’s enactment, the department still “has not adopted uniform procedures to collect reliable data nor penalized any state for failing to report data.” The department has not published a report on the minimal data it has collected, they added.
An investigation by “In These Times,” the liberal journal, found in 2016 that Obama’s limits on military transfers to local police were toothless and that the value of the equipment going to them from the Pentagon had actually gone up after Obama signed the order. In 2017, President Donald Trump lifted the order entirely.
In 2015 and 2016, Republicans more supportive of police controlled both chambers of Congress, which halted more far-reaching proposals. But it’s worth noting that Democrats who controlled the Senate in 2014 and the House again, starting last year, made other bills a higher priority.
With protesters now demanding more, Democrats in Congress are again pushing to limit the military transfers. But George Floyd wasn’t killed with military equipment.
Democratic Caucus Chairman Hakeem Jeffries has a bill to ban chokeholds like the one used by Derek Chauvin, the Minneapolis officer who killed Floyd by kneeling on his neck, and like Pantaleo used in killing Garner. But both Chauvin and Pantaleo were already violating their own departments’ policies.
More police accountability might give officers pause. Wilson and Pantaleo both went free, an indication perhaps of how a combination of friendly prosecutors and laws gives officers wide leeway and protects them.
Democrats, led by New Jersey Sen. Cory Booker, say they want to take away, at least in part, officers’ “qualified immunity” from civil damages. Tennessee Rep. Steve Cohen has again proposed that independent counsels prosecute police misconduct.
But those potentially more meaningful remedies are also the ones most vociferously opposed by police unions and by Republicans in Congress. And they would, undoubtedly, have side effects, in deterring officers from taking aggressive actions to stop criminals and by deterring qualified candidates from choosing to become officers.
Speaker Nancy Pelosi said the black caucus would release a broad package banning racial profiling and excessive force, while taking away qualified immunity, on June 8. “We want to see this as a time where we can go forward in a very drastic way, not incrementally,” she said.
GOP senators expressed sympathy with the protesters, and Judiciary Chairman Lindsey Graham pledged a June 16 hearing, but their focus remains on confirming judges and executive branch nominees.
They also passed a bill to make it easier for small businesses with more overhead than labor costs to use the Paycheck Protection Program. Congress created that program of forgivable loans in March to help businesses pay their workers and weather the coronavirus lockdowns, but restaurants and others said its strictures made it unhelpful to those more worried about rent than labor costs.
Whether or not GOP senators are receptive to policing legislation, Democrats said they’d respond to the killing of Floyd with something. The Congressional Black Caucus, in cooperation with Booker and California Sen. Kamala Harris, is preparing a policing bill, and House Majority Leader Steny H. Hoyer said he’d bring representatives back before their next scheduled votes, on June 30, if it’s ready before then.
Acknowledging the anger in their base, Democrats promised it would be the first step in a broader restructuring of American society. Democrats would treat legislation on policing as the first step “in chipping away at the racial disparities that exist in health care and housing and education and in the economy,” said Senate Minority Leader Charles E. Schumer.
Schumer did not detail his broader plans for racial justice. It would be “bold, bold change,” he said, though not likely to happen in “a week, or a month, in a year.”
“Let’s hope they can solve them in this decade,” he said.