2020–2021 National High School Debate Topic: Criminal Justice Reform: Overview

Introduction

In the 2010s and early 2020s incidents of police-involved death and injury in the United States were closely covered in the national media, sparking outrage and protest nationwide and deepening the national debate about the fairness and structure of the criminal justice system in America. According to Bureau of Justice Statistics data compiled by the Brennan Center, Americans are incarcerated in disproportionate numbers as compared to citizens of other democratic countries. Involvement in the judicial system is often influenced by racial, ethnic, and economic factors.

For many Americans, the system is clearly in need of reform—whether in terms of policing, forensics, sentencing, or all three. Because the initial interaction with the criminal justice system is most often through contact with the police, many efforts at criminal justice reform have focused on the need for police reform, training, and accountability, and greater consistency nationwide. Advocates for broad-ranging police reform argue that because state and local police departments vary widely in recruitment and training processes, this leads to unequal and unfair differences in treatment of suspects and citizens. Others say imposing further restrictions to policing would make an already difficult job nearly impossible and reduce police presence and recruitment, which could, in turn, embolden both criminals and extrajudicial militias. Thus, they favor narrower, local solutions to police reform, on an as-needed basis.

Understanding the Discussion

Black Lives Matter movement: A decentralized coalition of activists who, among other actions, organize protests against incidents of police-involved violence against Black Americans; sometimes abbreviated BLM.

Campaign Zero: A slate of specific police reform proposals created by Black Lives Matter activists in 2015 to reduce police violence.

Jim Crow laws: State and local laws enacted between 1877 and 1965 in the American South to enforce segregation and the disenfranchisement of Black Americans.

Qualified immunity: A Supreme Court doctrine that is intended to protect police officers operating in good faith from civil-rights lawsuits and to reduce their exposure to liability; often interpreted to mean that an act cannot be considered a constitutional violation if that same type of act has not previously been ruled upon in a given jurisdiction.

History

The criminal justice system in the United States has evolved as the nation has evolved over time. Many of its key features, such as publicly funded police forces, are relatively modern developments. Prior to the urbanization, industrialization, and immigration of the nineteenth century in America, security for businesses tended to come from private citizens. In most communities, participation in the maintenance of public order was voluntary, with citizens staffing the night watch or being deputized as needed to deal with crime. The first publicly funded police force was set up in 1838 in Boston, Massachusetts, primarily to safeguard the interests of commerce and trade. Other large cities followed suit, and by the end of the 1880s a professionalized, publicly funded police force was a staple of urban life in the United States. Such police forces were at times used for intimidation in labor disputes, to control immigrant populations, or to influence politics.

In the American South, however, public policing often originated with the control and repression of enslaved Black Americans. The first slave patrols were reportedly organized in the Carolinas in 1704. After the Civil War and Reconstruction, police sheriffs often became closely connected to White supremacist terrorism and the enforcement of Jim Crow laws, designed to keep Black Americans segregated and disenfranchised. During the civil rights era in the 1950s and 1960s, federal troops were sent into the South when local and state law enforcement attacked protesters with dogs and fire hoses or otherwise failed to protect their citizens or follow federal law. The unrest of the 1960s led to efforts to train and further professionalize police forces nationwide.

Police generally serve as the entry point to the modern criminal justice system. They also have primary responsibility for investigating a crime and gathering evidence. State and local police forces vary in structure and are responsible for enforcing a patchwork of local, state, and federal laws. (Note that while tribal police enforce laws on reservations, complexities involving certain crimes, suspects, victims, and location mean that state or federal law enforcement may have jurisdiction.) Once verification of a crime has been carried out, evidence gathered, and formal charges made, adjudication—processes involving the courts—begins. Court involvement can take place at a local, state, or federal level, and includes all stages in the process from the point when law enforcement submits their information and evidence to a prosecutor through the final verdict in court. If a verdict requires incarceration, the final steps in the criminal justice system are sentencing and corrections, the latter of which continues to monitor former inmates after release. Although in the past the corrections system was seen largely in punitive terms, the modern system is intended to include opportunities for reform and rehabilitation as well.

The way that people involved in the criminal justice system are treated has also changed over time. Crime has been seen as a moral, economic, racial and ethnic, and even medical issue, and reforms have focused on identifying the perceived source of the problem and bringing the accused in line with cultural expectations of the time. Criminal justice reform in America also has a long tradition of exacerbating, rather than solving, existing problems. Efforts to address crime in impoverished immigrant communities in the late nineteenth and early twentieth century, for instance, led to the incarceration of tens of thousands of young offenders for small infractions, often sent away without due process. Within the prison system such people risked becoming hardened in antisocial behaviors.

In the 1990s a framework was created for federal involvement in police reform. In 1991 several Los Angeles Police Department (LAPD) officers severely beat Rodney King, a Black man, after a car chase—an incident captured on film. In 1992, after three officers were acquitted, riots broke out, eventually causing dozens of deaths and thousands of injuries. The Rodney King beating led to a number of studies and investigations into the causes and remedies for police brutality. One result was that Congress passed the 1994 Violent Crime Control and Law Enforcement Act, which, among numerous other provisions, authorized the Department of Justice (DOJ) to intervene in cases where the police routinely deprive citizens of their constitutional rights. The DOJ launched seventy such investigations between 1994 and 2017, and forty of those resulted in enforceable reform agreements. Under the administration of President Donald Trump, however, there was a dramatic reduction in DOJ “pattern-or-practice” investigations of police departments. Only one such public investigation was opened between 2017 and mid-2020, and another concluded by consent decree.

Individual police departments have successfully implemented police reforms that could set the groundwork for national standards. Use-of-force reforms in major cities across the country—including Los Angeles and San Francisco, California; Baltimore, Maryland; Chicago, Illinois; Philadelphia, Pennsylvania; and Phoenix, Arizona—led to reductions in the numbers of police-involved shootings and fatalities, based on data from third-party databases. The common thread in most of these instances was an initial public outcry leading to changes in training around use of force or de-escalation and the hiring of new officers.

Criminal Justice Reform Today

In 2013, outraged at the acquittal of George Zimmerman, a Hispanic neighborhood watchman who shot Trayvon Martin, a Black teenager, to death, the hashtag #BlackLivesMatter began circulating on social media. Increasing outrage and widespread protests followed the 2014 police-involved deaths of two other Black men: Michael Brown, who was shot in Ferguson, Missouri, and Eric Garner, who was placed in an illegal chokehold while in New York police custody. With national attention turned to police-involved violence and the growing Black Lives Matter (BLM) movement, protests spread across the country. Additional high-profile incidents of police violence took place over the ensuing years. In March 2020, Breonna Taylor, a Black medical worker, was shot in her home during a raid by police. On May 25, 2020, a forty-six-year-old Black American, George Floyd, was killed by police officers using a knee-hold during his arrest for suspicion of using a counterfeit bill. In the weeks and months that followed, massive demonstrations erupted once again, both domestically and internationally. Up to 26 million people were estimated to have participated in protests in the United States in early June 2020, calling for police reforms. Protests also continued on a more limited basis throughout that summer. Some protesters urged greater accountability and changes to the existing system. Others issued calls to defund or abolish the police and instead institute alternative response methods to meet community needs.

The BLM-led Campaign Zero circulated a list of reforms, developed in 2015, that could be enacted quickly across the United States without requiring major overhauls to police departments or increased funding. Its use-of-force reforms, popularized on social media as #8CantWait, included measures to reduce and deescalate violent encounters with the police, increase accountability, and mandate reporting. Activists called for a ban on chokeholds, strangleholds, and shooting at moving vehicles, as well as requirements for de-escalation, exhausting all other means before firing a weapon, warning before shooting, a “use of force continuum” governing what kinds of weapons can be used and when, and the duty of officers to intervene and report all encounters involving force or the threat of force. Other Campaign Zero proposals include an end to “broken windows” policing and for-profit policing, increased community oversight and representation, independent investigations and prosecutions, required body-worn cameras for on-duty officers, demilitarization, and changes to training and police union contracts.

The United States’ eighteen thousand police agencies have widely disparate training, equipment, and accountability standards, and the support for national policing standards grew louder through the 2010s and into the 2020s. In the wake of George Floyd's 2020 murder, the George Floyd Justice in Policing Act was introduced in Congress. The House bill sought to tie funding to a ban on chokeholds, clarify force and de-escalation standards, limit qualified immunity, prohibit racial profiling, and create a national registry to track police misconduct. While the bill passed in the Democrat-controlled House in 2021, it stalled in the Senate.

Other attempts at creating police reform included efforts at the state and local level, leading to hundreds of bills introduced that aimed to reform law enforcement practices in the US in the early 2020s. In August 2020 New York governor Andrew M. Cuomo took on police reform at the state level, announcing that all local police departments must adopt a plan for reform by April 1, 2021, if they wished to receive state funding. In 2023 the Memphis, Tennessee, legislature passed the Tyre Nichols Driving Equality Act, following the death of Nichols, who was beaten by Memphis police after being pulled over in his car in January of that year. The Act prohibited police from carrying out traffic stops for minor infractions. However, in March 2024, the Tennessee governor signed a bill nullifying the law. The act was part of a trend among state legislatures and voters who sought to push back against the spate of police reforms passed over the previous four years. Reasons for the pushback varied. While some lawmakers and voters felt crime had worsened following funding cuts and other reforms impacting police agencies, others believed such measures were "anti-police" and resulted in demonizing police forces.

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Bibliography

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Eisen, Lauren-Brooke, and Spencer P. Boyer. “What the Federal Government Can Do to Help Fix Policing in America.” Brennan Center for Justice, 16 June 2020, www.brennancenter.org/our-work/research-reports/what-federal-government-can-do-help-fix-policing-america. Accessed 30 Sept. 2020.

Klemko, Robert, et al. "Killings by Police Brought Reforms. Fear of Crime Is Unraveling Them." The Washington Post, 10 Mar. 2024, www.washingtonpost.com/national-security/2024/03/10/police-reform-rollback-tyre-nichols-floyd-breonna/. Accessed 29 Mar. 2024.

Nellis, Ashley, and Henderson Hill. “The Color of Justice: Racial and Ethnic Disparity in State Prisons.” The Sentencing Project, 10 Jan. 2019, www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons. Accessed 23 Sept. 2020.

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