Biden's plan for "strengthening America's commitment to justice" reads like a Black Lives Matter wish list; there is no reason to think that a Bidenâ€“Harris Justice Department will not implement it. Among its most consequential proposals, it calls for a return to the practice of imposing weakly-justified consent decrees on police departments. During the Obama years, career attorneys in the Justice Department regularly opened civil rights investigations into police departments (called "pattern or practice" investigations) without credible evidence that an agency was systematically violating citizens' constitutional rights. Those investigations almost invariably resulted in settlements (called consent decrees) that placed police departments under the control of a nonelected federal monitor and a federal judge; monitors collected millions of dollars in taxpayer-funded fees while they held police departments to draconian deadlines and mindless paper-pushing mandates for years on end.
President Trump's first attorney general, Jeff Sessions, reformed that practice. On the very day that Trump vindictively fired Sessions in November 2018, Sessions had signed a directive requiring that a high-level DOJ official approve each consent decree, that those decrees have a sunset date — usually no longer than three years — and that they specify what a department must do to terminate the decree. The directive stipulated that police agency's alleged constitutional violations must be truly systematic and unlikely to be corrected absent a de facto federal takeover of the department. Justice Department attorneys must balance any expected benefits from the consent decree against its costs. High-paid monitors should be a last resort; Justice Department attorneys should ordinarily oversee the measures that they have imposed.
This sensible set of guidelines will now be torn up, if Biden's narrow victory holds. Biden's criminal-justice plan promises to "reverse" the Trump "limitations" and to "prioritize" the use of consent decrees. Police departments are now on notice: they may expect a knock on the door at any time from a Washington attorney, demanding truckloads of documents as the prelude to years of federal interference and budget-busting compliance rules and fees. Strikingly, the justice blueprint goes further than even Obama-era policy by calling for pattern-or-practice investigations of prosecutors' offices, on the ground that they, too, engage in "systemic misconduct."
The Biden administration will create a federal task force to combat alleged discrimination in arrest and charging decisions. But while the Biden plan would strip police officers and prosecutors of their discretion regarding whom to arrest and whom and how to charge, it would return unchecked discretion in sentencing to federal judges. A Biden administration would push for legislation eliminating all mandatory-minimum federal sentences for violent street crime and drug trafficking; it will provide states with incentives to eliminate states' own mandatory sentencing rules.
Further, the Biden Justice Department will pressure states to start collecting ethnic, as well as racial, data on stops and arrests, to increase the basis for bringing racial profiling lawsuits. It will condition certain federal grants on the race of new officer recruits. It will end cash bail and eliminate even the threat of jail for recurrent failure to pay law-enforcement fines.
The incoming administration will restore President Obama's policies on school discipline. The Obama Justice and Education departments treated racial disparities in student discipline as prima facie proof of discrimination. School districts that suspended black students at higher rates than white or Asian students risked being sued by the federal government and losing federal funding.
Police chiefs have two courses before them. They can fight the specifics of these coming initiatives. They can point out, for example, that federal consent decrees on police departments have led to sharp increases in black-on-black homicide, when those decrees were accompanied by highly publicized claims of police bias. Officers decreased essential proactive activities such as pedestrian stops or the dismantling of open-air drug markets. When cops pull back, criminals fill the vacuum. More lives, primarily black lives, are lost.
Police chiefs can point to the rise in school violence under the Obama-era anti-school discipline regime. They can bring in prosecutors to explain the essential role of mandatory minimum sentences in inducing serial offenders to cooperate in identifying their collaborators and to plead to their latest crime. Police leaders can invoke research from the Obama administration itself showing that black and Hispanic officers shoot unarmed black males at higher rates than white officers do. The chiefs should argue for colorblind hiring that does not lower standards regarding criminal records or literacy levels.
But more important than rebutting any specific policy is to challenge the philosophy driving the entire Biden justice agenda. Nearly every plank of that plan is driven by the idea that racial disparities in the criminal system result from bias, not from differences in criminal behavior. Biden is now the standard bearer for the progressive narrative that all racial and ethnic groups have comparable rates of offending. According to that narrative, it is only police, prosecutors, judges, and juries who behave differently based on race — the race of offenders.
That narrative is a myth, and police chiefs have at their fingertips the data necessary to dispel it. They have the data on who is committing the drive-by shootings, robberies, and burglaries in their jurisdictions. Those data indicate that African-Americans are disproportionately represented as offenders — and as victims. We know about such disparities thanks to victim and witness identifications; those victims and witnesses are overwhelmingly minority themselves.
In Los Angeles, for example, though blacks are only 9 percent of the population, they committed 44 percent of all violent crime in 2019. Whites are 28 percent of the city's population but committed 8 percent of violent crime in 2019 (mostly domestic incidents as opposed to street crime). In New York City, blacks committed over 72 percent of all shootings in 2018, though they are 23 percent of the city's population. Whites committed 3 percent of all shootings in 2018, though they are 34 percent of the city's population. In St. Louis, blacks commit up to 100 percent of all homicides, though they are less than half of the population.
Such disparities are replicated in virtually every American city. Their implications for policing are huge. They mean that the police cannot respond to criminal behavior without having a disparate impact on blacks, since blacks commit the lion's share of violent street crime. The police don't wish those disparities into being; the reality of crime forces them on police. The Biden plan aims to "eliminate racial disparities" in the criminal justice system; the only way to do so is to eliminate the criminal law itself.
Police chiefs have kept offender information under wraps because they know that police departments will be accused of racism if they publicize the facts about street crime. Better, then, to keep Americans in the dark and let cops on the beat take the brunt of anti-police agitation, the thinking seems to go. But the coming wave of ideologically driven federal intrusion makes such reticence reckless. Thousands of lives are at stake. The Biden justice plan will result in an even greater pullback from proactive policing than we have seen since the George Floyd riots. Homicides spiked 53 percent over the summer in a sample of over two dozen big cities; the victims, including dozens of children, have almost all been black.
Police commissioners should hold regular press conferences laying out the crime realities in their cities. They should show maps of where 911 and 311 calls originate from. Those maps reveal a disproportionate number of requests for police enforcement coming from minority neighborhoods. The thousands of law-abiding residents of high-crime areas beg for more police protection; they want drug dealers off the streets and the rowdy youth off the corners. The police cannot respond to those heartfelt requests for assistance, either, without generating the racially disproportionate enforcement data that a Biden administration will leverage against them in racial-profiling investigations and consent decrees.
The law enforcement community must get out in front of this issue before that wave of federal scrutiny breaks upon them. Line up those local proprietors, hardworking residents, and senior citizens who can testify to the oppression of street crime and who will voice their need for, and support of, the police. They include the sister of a murdered Chicago cop, who wrote earlier this year: "I have never, ever had a neighbor ask me how we can reduce the police presence in our neighborhood. I am, however, consistently asked how we can increase our allocation of police resources." This bereaved sister testified as well to the efficacy of Broken Windows policing: "Left unchecked, drinking and smoking on a residential street at all hours of the night can escalate into drug sales and other lawless behavior during the day, because they think no one cares. When that behavior is left unaddressed, and combined with the possession of illegal guns, people die."
Plenty of polls show that this good woman is representative. A Biden administration would ignore those surveys, but police chiefs should hit back with such individual stories. Unless they start building a case for proactive policing now, the anarchy of the last five months will worsen and become the new national norm.