State of the Union: Police reform under pressure after Biden killing

A year after President Joe Biden made a vocal call to “fund the police” in his State of the Union address, police reform advocates inside and outside Congress are closely watching Tuesday night’s comments to see if he offers a different message. They say the system is still broken

Advocates hope attention to recent deaths, like that of Tyre Nichols, a 29-year-old who was fatally beaten by Memphis police in January, will break congressional gridlock and force lawmakers — including Biden — to be more aggressive about reform. Nichols’ mother and stepfather, Rowan and Rodney Wells, will be in attendance Tuesday night as guests of Congressional Black Caucus Chair Steven Horsford (D-NV), a lawmaker who called on Biden to address the issue in his comments.

“A year ago, you screamed about funding the police, which helps fund the police,” said Amara Enya, policy and research coordinator for the Movement for Black Lives. “Will they turn a corner on it, or will it stay the same?”

A Description of incident Released Tuesday, the White House promised that Biden would push Congress to pass the George Floyd Justice in Policing Act in his 2023 State of the Union address and support funding for 100,000 more police officers.

The pledge is in line with Biden’s stance on policing, where he has called for both reform and more funding for police, an approach that advocates have criticized as inconsistent. In May 2022, Biden signed an executive order that would establish a database tracking police misconduct and require federal agencies to establish new use-of-force standards. So far, other federal measures on policing have stalled in Congress because of issues between Republicans and Democrats, including qualified immunity, a provision that makes it more difficult to sue police for harm and damages they cause.

With the National Police Reform Act in place, incidents of police violence have continued unabated: According to the Mapping Police Violence database, in 2022, police killed 1,192 people, the highest number in at least a decade; And in 2021, 1,147 people were killed by police.

The Congressional Black Caucus also recently met with Biden to discuss police reform efforts and urged him to use the State of the Union to build support for a bill and pave the way forward. Activists and lawmakers, including members of the CBC, have both stepped up pressure on Biden to talk about police reform during his speech and offer a rallying cry that builds public support for legislation in a divided Congress.

“The State of the Union is one of the best organizing opportunities right now,” said Rashad Robinson, executive director of Colors of Change, which has supported the call for refunds. “This is an opportunity for him to give people some marching orders.”

This evening’s State of the Union address is the latest test of how aggressive Biden is willing to be in his messaging on the issue. Although he has supported the Justice in Policing Act, the administration’s rhetoric on law enforcement — such as calls for funding — has raised concerns among advocates in the past. Additionally, some advocates hope Biden will more clearly call out police union opposition to some of the reforms.

“What I expect from the president is a strong story and a strong narrative,” Robinson said. “I think it’s been missing.”

What activists and lawmakers want to hear from Biden

First and foremost, advocates want to see Biden take a more active role in the fight for legislative police reform, despite facing political obstacles. They argue that his role is to build public support and maintain attention on the issue, which has seen greater focus following coverage of Nichols’ death. Biden’s State of the Union speech will signal how dedicated he is to not only continuing the call for action, but explaining what obstacles are holding it up.

“The president must rally the American people to pressure Congress, or the big problems are just going to repeat, repeat, repeat,” said Mark Morial, president of the National Urban League.

Police reform has seen strong public support, including many sections of the Justice of the Police Act. In a 2022 Gallup poll, 81 percent of people supported changing legal practices so that police officers face legal action for abuse of power or unnecessary harm, policies like curbing qualified immunity, and 78 percent supported community-based alternatives like violence intervention.

Activists argue that Biden can use the bully pulpit to activate and strengthen this support, so that people continue to pressure lawmakers to focus on the issue.

Enya, policy coordinator for the Movement for Black Lives, also said she wants Biden and other lawmakers to approach the issue through a lens of redirecting investment in police to invest more in communities.

Robinson also argued that Biden should clearly point out how opposition to police unions has contributed to the discussion of failing reforms, so supporters of these policies know where to focus their energies. Morial told Politico that Biden has told him in the past that it might be helpful for the president to be less vocal in making progress on the issue. Morial believes, however, that this moment calls for a stronger approach after past attempts at reconciliation have failed.

“An attempt to persuade quietly didn’t work,” Morial told Vox.

At the moment, any police reform would need House Republican support as well as the votes of at least nine Republican senators to clear a filibuster threshold in the upper chamber.

And Republicans have been hesitant to make sweeping changes to policing, worried that increasing officers’ legal accountability would make it harder for them to do their jobs.

Top congressional negotiators such as Sens. Cory Booker (D-NJ) and Tim Scott (R-SC), as well as members of the CBC, have expressed both optimism and urgency on the issue, but it remains unclear how the existing impasse will be resolved. A disagreement over handling solvable immunity blocks further talks in 2021, and Scott has already indicated that passing the Justice on Policing Act would be a nonstarter with his party.

That reality has led advocates to argue that Biden should continue to use his role to build momentum and consider other possible executive actions.

Biden may use executive action on police reform

In addition to focusing on legislation, the CBC said it is weighing more executive actions Biden could take. “We are exploring all options: legislative, executive, and community-based solutions,” Horsford told reporters after last week’s White House meeting, though he declined to offer additional specifics.

Biden’s 2022 executive order created a new database aimed at tracking police misconduct, curbing the use of chokeholds at the federal level, limiting the use of no-knock warrants and using federal discretionary grants to encourage local agencies to comply.

Additional executive actions may direct federal agencies to issue other grants based on specific requirements. Each year, significant federal funds are distributed to law enforcement agencies through discretionary grants, and it is possible that these resources may be withheld from police stations that have been found to have engaged in discriminatory practices.

Robinson also pointed to federal funding that is provided for traffic stops — including millions in annual highway safety grants — and said the administration could control those resources as well. Udi Ofer, former director of the Justice Division of the American Civil Liberties Union and a Princeton professor, added that Biden could use executive action to strengthen the provisions of his previous order. He could raise federal officers’ use of deadly force standards, for example, and further limit the militarization of local police.

Both lawyers and the White House have warned that there are limitations with executive actions because they can be applied more directly to federal law enforcement, which is a fraction of the police, and they are not a substitute for actual legislation in the matter. These incremental policy changes can still send an important message.

Beyond the additional executive action, CBC lawmakers pressed the administration to go over how the implementation of the current executive order is going. “One of the things we’re asking for is a status of the progress status of the implementation of that executive order through 2022,” Horsford told reporters. “And what else can we do that the executive order doesn’t include?”

According to the Marshall Project, which is in the process of establishing a misconduct database, Offer, who previously worked with the White House, told the publication that its implementation appeared to lack “a level of urgency and commitment.”

In Tuesday’s fact sheet, the White House claimed that several provisions of the executive order were kept, including updates to agencies’ use-of-force policies and a ban on the transfer of military-grade weapons to local law enforcement agencies.