June 19, 2020

S.3985 – Just and Unifying Solutions to Invigorate Communities Everywhere (JUSTICE) Act

NOTEWORTHY

Background: Following the death of George Floyd while being arrested by Minneapolis police, there has been a widespread, even international, push to reexamine and reform police practices. In a recent poll, 69% of Americans said that Floyd’s death was a sign of broader problems in treatment of black Americans by police. President Trump issued an executive order on June 16 directing the attorney general to send discretionary grant funding only to state and local law enforcement agencies that obtain independent credentialing of their practices. The order also directed new transparency measures to share information on use of force by law enforcement. The House of Representatives appears likely to pass its own legislation aimed at police reform as early as next week.

Floor Situation: Senator Tim Scott, along with 46 Republican original cosponsors, has developed S.3985 to improve policing practices while maintaining the traditional allocation of law enforcement responsibilities to state and local governments. The Senate is expected to vote on cloture on the motion to proceed to the bill as early as next week.

Executive Summary: S.3985 provides federal incentives for law enforcement entities to, among other things: ban the use of chokeholds; report incidents involving the use of force; and ensure correct use of body cameras. It also contains reforms relating more broadly to the relationship between law enforcement and the African American community, including directing the Department of Justice to develop training on de-escalation and commissioning studies on policing practices.

NOTABLE BILL PROVISIONS

Title I – Police Accountability

Section 101 – George Floyd and Walter Scott Notification Act

Reduces federal funding by 20% for states and localities that do not make an annual report to the FBI National Use-of-Force Data Collection detailing law enforcement events involving a fatality, serious bodily injury, or discharge of a firearm either at or by the police. The reduction becomes 25% in subsequent fiscal years if the state or local government continues not to comply with the reporting requirement. Directs the FBI to make use-of-force information available to the public no later than one year after the date of enactment of the act.

Section 102 – Breonna Taylor Notification Act

Requires states and localities receiving federal law enforcement grants to report on the use of “no-knock warrants,” i.e., warrants authorizing a law enforcement officer to enter premises to execute a warrant without first announcing their presence. Failure to comply with the reporting requirements would result in a 20% reduction of federal law enforcement grants, and then up to 25% in subsequent fiscal years if noncompliance continues. Directs the attorney general to publish information on no-knock warrants provided by state and local governments.

Section 104 – Compliance Assistance Grants

Creates a federal grant program authorized at $112 million for fiscal year 2021 to award up to $1 million in individual grants to state or local governments seeking aid to collect law enforcement data.

Section 105 – Incentivizing banning of chokeholds

Conditions the receipt of grants under the Community Oriented Policing Services and Byrne Memorial Justice Assistance Grant programs on banning the use of chokeholds except when the use of deadly force is authorized. Directs the attorney general to develop policy for federal law enforcement agencies to ban the use of chokeholds except when deadly force is authorized.

Section 106 – Falsifying police incident reports

Creates a criminal penalty for falsifying reports in connection with a civil rights violation that results in serious bodily injury or death, with a 20-year maximum sentence.

Title II – Body-Worn Cameras

Section 201 – Body-Worn Camera Partnership Program

Creates a matching grant program administered by the director of the Bureau of Justice Assistance, authorized at $100 million for each of fiscal years 2021 through 2025, to fund state and local government use of body cameras in compliance with guidelines to be developed in concert with prosecutors, community organizations, and other interested groups. 

Requires that the cameras be used at all times when making arrests and that officers who fail to ensure the camera is engaged, functional, and properly secured are appropriately disciplined. Also requires training in proper usage of the cameras and handling of the recordings.

Section 202 – Penalties for failure to use body-worn cameras

Reduces federal funding for state and local governments to purchase body-worn cameras if those entities do not put guidelines in place to ensure proper usage of the cameras. The entity will suffer a 20% reduction for the fiscal year, increasing to 25% in subsequent years of continued failure to implement guidelines.

Title III – Law Enforcement Records Retention

Section 301 – Law enforcement records retention

Requires law enforcement agencies to maintain an employment and disciplinary records system of law enforcement officers for no less than 30 years. Records must include substantiated allegations of misconduct and internal investigation records, as well as awards or commendations. Disciplinary records must include allegations of misconduct substantiated and adjudicated by a government agency or court resulting in adverse action unless overturned on appeal. Grants each state a $1 million one-time grant to establish the system and appropriates $100 million for the purpose. Conditions receipt of federal law enforcement grants on creation of an appropriate employment and disciplinary records system.

Title IV – Justice for Victims of Lynching

Section 403 – Lynching

Creates a new criminal offense for conspiracy to injure, intimidate, or interfere with protected civil rights activities, e.g., voting, on the basis of race, color, religion, sex, handicap, familial status, or national origin. Conspiracy to violate those rights will be punishable in the same manner as a completed violation. Requires that where the maximum term of imprisonment is less than 10 years for a completed violation, the offender cannot be imprisoned for more than 10 years for conspiracy. 

Title V – Commission on the Social Status of Black Men and Boys Act

Section 505 – Commission duties and powers

Directs a new commission to conduct a systematic study of conditions involving black men and boys, including homicide rates, arrest and incarceration rates, poverty, violence, drug abuse, disparate income and wealth levels, school performance, and health issues. Directs the commission to propose measures to alleviate and remedy the underlying causes of those issues.

Title VI – Alternatives to the Use of Force, De-escalation, Behavioral Health Crises, and Duty to Intervene Training

Section 601 – Training on alternatives to use of force, de-escalation, and behavioral health crises

Directs the DOJ COPS Office to develop curricula in alternatives to use of force, de-escalation, and responding to behavioral health crises in consultation with state and local law enforcement agencies, labor organizations, professional law enforcement organizations, and mental health organizations. Direct the COPS Office to establish a process to certify entities to conduct training in those curricula.

Authorizes appropriations of $20 million for each year from fiscal year 2021 through 2025 for the COPS Office to develop and deliver the curricula and to certify entities to deliver training. Authorizes appropriations of $50 million each year from fiscal year 2021 through 2025 to establish new training grants for these curricula through the Byrne-JAG program.

Section 602 – Training on duty to intervene

Directs the attorney general to develop a training curriculum on the duty of a law enforcement officer to intervene when another law enforcement officer engages in excessive use of force. Authorizes $100 million in grants for each fiscal year from 2021 through 2025 for state and local law enforcement agencies to implement the training.

Title VII – National Criminal Justice Commission Act

Sections 704 and 705 – Purpose of the commission, review, recommendations, and report

Directs a newly created National Criminal Justice Commission to undertake a comprehensive review of the criminal justice system, including costs, practices, and policies of federal, state, local, and tribal governments. Requires the commission to report its findings and supplemental guidance not later than 18 months after its first meeting.

Section 708 – Direct appropriations

Authorizes $7 million for each of fiscal years 2020 and 2021 for the commission and its activities.

Title VIII – Law Enforcement Agency Hiring and Education

Section 801 – Law enforcement agency hiring

Allows COPS grants to be used by law enforcement entities with substantially different racial and ethnic demographic makeup than the community it serves to hire recruiters and enroll candidates in law enforcement academies to bring the demographics of the law enforcement entity closer to the demographics of the community,

Section 802 – Reauthorization of law enforcement grant programs

Reauthorizes the Byrne-JAG program at $800 million for each fiscal year from 2021 through 2025. Reauthorizes the Cops on the Beat grant program at $400 million for each fiscal year from 2021 through 2025.

Title IX – Best Practices and Study

Section 901 – Best practices

Directs the National Criminal Justice Commission to develop recommended best practices for policing, as well as the hiring, firing, suspension, and discipline of law enforcement officers.

Section 902 – Study

Directs the commission to study the establishment and operation of use of force review boards by state and local governments.

Title X – Closing the Law Enforcement Consent Loophole Act

Section 1001 – Prohibition on engaging in sexual acts while acting under color of law

Prohibits federal law enforcement officers from engaging in sexual acts while acting in their capacity as law enforcement officers with an individual who has been arrested by, is detained by, or is in the custody of a law enforcement officer. Specifies that consent is not a defense to prosecution. Subjects violators to up to 15 years in prison.

Section 1002 – Incentive for states

Authorizes DOJ to make grants to states with laws similar to Section 1001. Grants made under this provision must be used for the same purposes as formula grants under the STOP Violence Against Women Program and the Sexual Assault Services Program. Authorizes $5 million in grants for each of fiscal years 2021 through 2025.

ADMINISTRATION POSITION

The administration has not yet released a statement of administration policy on S.3985.

COST

CBO has not yet released a cost estimate of S.3985.