Biden Owes Black People a Police Reform Executive Order as Act of Redemption

Within minutes of the judge reading the guilty verdicts in the case of ex-police officer Derek Chauvin for the murder of George Floyd in Minneapolis, MN, President Biden took to the airwaves to offer his response to this case. In his remarks, he indicated his ongoing support for the passage of The George Floyd Act and advocated for its passage in the Congress. What he failed to state was that days earlier he backed off from a campaign promise to use his executive authority to establish a police review commission.

Last year, in the days following the murder of Mr. Floyd, then-Democratic presidential candidate vowed to establish a police oversight commission within his first 100 days in office. From his campaign headquarters in Philadelphia he stated, “We need each and every police department in the country to undertake a comprehensive review of their hiring, their training, their de-escalation.” Now, with the presidential election favorably behind him, Biden’s had a change of mind. Weeks before the verdict White House Domestic Policy Advisor Susan Rice released a statement defending the decision to scrap the promise. In it she indicated that such a commission “would not be the most effective way to deliver on our top priority in this area, which is to sign the George Floyd Justice in Policing Act into law.”

The George Floyd Justice in Policing Act was first introduced in June 2020. It passed in the House but has yet to be voted on by the Senate. Republican senators have made very clear their intent to gut the bill of its most critical measures of police accountability including one measure that would eliminate qualified immunity, a judicial doctrine that presently shields police from lawsuits over civil rights violations brought by victims of police violence or their families. At present, there is no clear pathway for the bill’s passage into law. And while it languishes in Congress, African Americans remain vulnerable as we continue to witness traumatic video after traumatic video of yet another Black person killed by police.

When candidate Biden made the promise a couple of months before the election, the George Floyd Act had already been voted on and passed in the House. If he didn’t see a problem with initiating a police reform executive order with a police reform act being pushed in Congress while he was yet a candidate, why the conflict now? Given the events of this past week, the need for both is as real and present as it was when he was vying for votes.

In passing this political problem to his colleagues in Congress to handle, the president is also passing the responsibility to fix an ever-escalating problem he had a crucial hand in making. There is a case that can be made that Biden played a central role in creating the current climate of racist policing in this country. It was his 1994 crime bill, signed into law by then-President Clinton, that created the particular hell we are living through now. Therefore, he has a special obligation to use the power of his executive office to do everything he can to stop the police bloodshed and loss of Black life that has become an almost daily occurrence across this country.

Over the past fifty years, there has been no act of Congress that has been more anti-Black in its construction, content and promotion than this bill. As late as 2008, Biden proudly called it the “Biden Crime Law” on his then-presidential campaign website. He owned it, and he should be accountable to undo every damaging measure within it. Activists said the guilty verdicts in the Chauvin trial was not justice, but accountability. Well, this is a moment of accountability for Biden, too.

Plenty has already been written and said about the law’s devastating impact on Black America. Experts and activists have discussed at length how it sent millions of African Americans to prison for possession and sale of a substance that today is fueling a burgeoning multi-million-dollar cannabis enterprise. Black America is still suffering the consequences of mass incarceration. The net impact of Biden’s crime bill on Black America is likely best summed up by Vanita Gupta, who led the Justice Department’s Civil Rights Division under President Barack Obama: The 1994 crime bill “created and calcified massive incentives for local jurisdictions to engage in draconian criminal justice practices that had a pretty significant impact in building up the national prison population.”

In the same vein, not nearly enough has been said or discussed about the devastating impact that the bill’s mandate of an additional 100,000 cops has had and continues to have on Black America. When Biden and both of the Clintons were aggressively advocating for the bill’s passage, they weaponized the term “super predators” to aid their aims. Their language was a conscious and deliberate attempt to demonize and vilify an entire generation of Black youth. America is now witnessing the deadly consequences of their inflammatory rhetoric as Black people killed by police are roundly dismissed as criminals worthy of their extrajudicial deaths. Each new name added to an ever-growing hashtag memorial of Black and Brown people killed by those empowered by Biden’s bill.

Biden’s Crime Law was then and remains to this day the most pro-cop federal legislation in modern American history. In fact, Biden himself has stated that the National Association of Police Organizations practically scripted the entire draft of his version of the bill which became law. According to The Washington Post, Biden, when speaking about the police association, stated, “You guys sat at that conference table of mine for a six-month period, and you wrote the bill.” Tom Scotto, then-president of the association, stated that Biden never said no to any proposal he wanted included in the bill. That bill added billions of dollars to the troughs of police departments across this country. So over-funded police departments have become that they represent the third largest military in the world. That is to say that, when taken collectively, the overall state and local police expenditures across the United States amount to more than the expenditures for militaries across the globe with the exception of two countries, the United States and China. Biden is as responsible as any other elected politician for the deferential treatment received by police departments in cities’ and counties’ budgets across the country that have led to the call for defunding the police.

In short, Biden is singularly responsible for constructing and championing a bill that outfitted billions of dollars of machinery, personnel and resources to what has become a state-sanctioned armed militia as racist in operation and reaction as the Klan in every respect — so-called officers of the law who operate as a law unto themselves with a code of conduct evidenced in meting out as much punishment on Black people as possible. An executive order from President Biden is the necessary antidote to begin to undo the damage wrought by Senator Biden. Make no mistake, this problem of Black lynching by police is his to fix.

Even if the provisions in the George Floyd Act were passed as is, it would not go far enough to stop the carnage. Cops are undeterred even in the face of one of their fellows being found guilty on three separate counts of homicide and manslaughter. Within hours of the verdict announced, there were three new cases of police killing making national headlines. This will take more than an act that seeks cooperation from law enforcement. Cops have not shown themselves to be honest brokers. Also, actions must be taken to redress the reasons why Black people find themselves disproportionately stopped and accosted by police. An alternative to the police must be established for situations that warrant non-violent social service responses. When it comes to Black people, the police have a horrible track record of de-escalation.

Since Chauvin’s trial, we have learned that he had a rap sheet of eighteen complaints in nineteen years that included putting the full weight of his body on a handcuffed teenage boy for even longer than he did to Mr. Floyd. Despite the facade of respectable officers and officials testifying on behalf of the prosecution against Chauvin, the Minneapolis Police Department allowed this corrupt cop to stay on the force. On the day of Mr. Floyd’s murder they put out an official statement based on Chauvin’s lies about what happened that day. Were it not for the unwavering bravery of Darnella Frazier, the African American teenage girl that videotaped the murder, Chauvin would likely still be on the force today, never arrested, never tried, never convicted. This conception of Chauvin as a bad cop in an otherwise respectable police department is as farcical as the notion that a Justice Department assessment will lead to change. How many such investigations and assessments were conducted under the watch of the first African American President and the first African American Attorney General of the United States? And how many of those police departments have stopped killing African Americans as a consequence?

There are thousands of pages of Justice Department reports on how racist and corrupt law enforcement as an institution has become. This is not a matter of the nation needing to know why. What we need is accountability enforced. Not for just individual officers who commit egregious acts, but for all police. Every cop must be put on notice, irrespective of their rank or station or race.

The problem of policing is not provincial. It is national in scope and impact. No where in these United States can a Black person exist free from the anxiety of a possible run-in with police. The assault on the lives of Black people by police is the most damning indication of systemic racism in this nation. Any proposed solution that does not meet that broad and expansive scope is offensive and racist too.

The need for an executive order that invokes sweeping national change and provides for federal oversight that is responsive and accountable to local Black communities’ needs is the only realistic means that can bring an end to this carnage. For such an executive order to be effective it must include some essential measures that confront the corruption of law enforcement and the judicial process. At the top of that list must be oversight of the offices of attorneys general in cities and counties that have had a history of police killings and abuse. In many of these cases we find attorneys general and county officials acting as though they are defense attorneys for the police rather than prosecutors on behalf of the people.

Another necessary measure is the need to put grand juries to rest. If a cop kills a Black person, there is no need to assemble a grand jury to determine if a crime has been committed or if the cop’s actions warrant a trial. The fact that a Black person died because of the actions of a police officer is sufficient reason to justify a trial. Grand juries have been a primary tool to enable cops to avoid prosecution and avoid being held accountable for their actions.

Furthermore, an effective executive order will work to defund the police. For far too long, critical social services in cities across this country have been starved as police budgets continue to grow. In essence, Black and Brown communities are experiencing the net effect of having the lionshare of their tax dollars doled out to police departments who in turn treat them with unbridled disdain. All the while critical social services, especially those that would help African Americans most vulnerable to police abuse, do not have the funds necessary to be effective. Many of these cases involve African Americans experiencing a mental crisis. It almost always ends in the death of that person. Simply put, police should never be responding to calls involving someone experiencing a mental crisis.

Finally, police that kill Black people should be made to pay for any civil rights violations. Consider how appropriately cops would begin to treat African Americans if they knew they could be sued if they were found to have violated their oath and code. These are the kinds of provisions in an executive order by President Joe Biden that are necessary toward addressing the problems with policing in the United States right now.

And all this talk about the need for training is insulting. Training is definitely not the issue. We know and have seen on numerous occasions that cops know how to recognize the humanity of white people and treat them accordingly. If the police can bring into custody a white mass murderer with the utmost decency, regard and respect, then they damn sure know how to relate and handle a Black grandmother, a Black mother, a Black child, a Black adolescent and a Black father, husband, son and daughter. And if they can’t or won’t, then that means that they are racist — point blank — and need to be fired on the spot and should have never been hired in the first place.

Such an executive order could take various forms and approaches to see these goals met. According to the Tax Policy Center, the federal government provided more than 700 billion dollars to states and local municipalities in 2019 alone. The president has quite the carrot at his disposal to get state and local officials to take his order seriously. Ultimately, the president took an oath. He swore to defend the Constitution of the United States. The Constitution is more than words etched in parchment. It is the essential body and expressed right of every American. And when any group of Americans are kept from experiencing the fullness of the freedoms and protections granted by the Constitution, then the president should use every power at his or her disposal to defend those people. For in defending them, he or she is defending the Constitution.

The Emancipation Proclamation is remembered as one of the most consequential federal acts in US history. Certainly, the most revered act of Lincoln’s presidency. What many may not be aware of is that The Emancipation Proclamation was an executive order. Lincoln didn’t wait on Congress to do what he knew was in his power to do. He executed the order in a time rife with tension on the question of slavery and freedom; the future of the nation hanging in the balance. Biden finds himself in a similar position with an entire community of people still struggling to see their basic constitutional rights secured; the nation’s future hanging in the balance between democracy and barbarity.

In 2008 during a hearing on drug sentencing disparity, Biden acknowledged his role in the discriminatory sentencing born from his bill when he said, “I am part of the problem that I have been trying to solve since then.” One can only wonder how ready he now is to also acknowledge his role in empowering police to assault and kill countless African Americans. What we know is that it is rare in life for a person to be given the opportunity to redeem themselves for mistakes of their past. Even rarer for a politician. The Black community gave Biden this opportunity when they defied Republican attempts to repress their votes and showed up to the polls in record numbers in key battleground states and won him the White House. Creating and signing an executive order of police reform that is as categorical and consequential as the bill he wrote and championed twenty-seven years ago is the first and necessary step on that blood-stained road.

Ewuare X. Osayande is founder and director of ORIJIN: The Osayande Racial Justice Initiative, which provides racial equity consultation for organizations and institutions. Learn more about his work at racial-justice.org.

Activist. Poet. Essayist. Author of Black Phoenix Uprising. Learn more about his work at Osayande.org.

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