Why has the Justice Department failed to follow a law from 1994?
The brutal killing of George Floyd by Minneapolis police has been condemned by former Presidents Bill Clinton, George W. Bush and Barack Obama. However, police violence spiraled out of control in part because each of those presidents failed to obey a law compelling the feds to track police killings around the nation.
In 1994, Congress enacted the Violent Crime Control and Law Enforcement Act, which boosted subsidies for local and state law enforcement. The bill also required the attorney general to “acquire data about the use of excessive force by law enforcement officers” across the nation and to “publish an annual summary of the data acquired.” Congress effectively ordered the Justice Department to document how often police kill unarmed private citizens.
Two years later, a Justice Department report raised the white flag: “Systematically collecting information on use of force from the nation’s more than 17,000 law enforcement agencies is difficult given … the sensitivity of the issue.”
Instead of requiring local and state law enforcement agencies to comply with the new federal law, the Justice Department expanded its “police-public contact survey” to ask “a series of questions about the use of both appropriate and inappropriate force during police-civilian encounters.”
Yet as professor James Fyfe, one of the nation’s foremost experts on police shootings, observed, “Since dead people can’t participate in such a survey, this work tells us nothing about how often police kill.”
Seven years after the 1994 crime bill was enacted, the Justice Department issued a report that effectively presumed that anyone who was gunned down by police deserved to die. “Policing and Homicide, 1976–1998: Justifiable Homicide by Police, Police Officers Murdered by Felons” labeled everyone in the nation who perished as a result of a police shooting as “felons justifiably killed by police.” There were hundreds, if not thousands, of people shot unjustifiably by the police in those decades, but their innocence vanished in a copy-editing flick.
The Justice Department was so embarrassed by the report’s “lack of distinction between justifiable police shootings and murders, that it did not send out its usual promotional material announcing the report,” according to The New York Times.
Collecting police shooting data
Police killings became a hot topic nationwide after a policeman in Ferguson, Missouri, killed 18-year-old Michael Brown in August 2014. Attorney General Eric Holder responded to that uproar by declaring, “We must seek to rebuild trust between law enforcement and the local community.” But the feds continued ignoring most police killings.
The Wall Street Journal noted in late 2014: “Justifiable police homicides from 35 of the 105 large agencies contacted by the Journal didn’t appear in the FBI records at all. Some agencies said they didn’t view justifiable homicides by law-enforcement officers as events that should be reported. The Fairfax County Police Department in Virginia, for example, said it didn’t consider such cases to be an ‘actual offense,’ and thus doesn’t report them to the FBI.”
The FBI records also omitted any details of killings by police in some of the nation’s most populous states and excluded all data on killings by federal agents.
Shortly before he left office in 2015, Holder belatedly endorsed collecting national police shooting data. But his replacement, Loretta Lynch, publicly opposed requiring police departments to report their killings. That October, Lynch declared: “One of the things we are focusing on at the Department of Justice is not trying to reach down from Washington and dictate to every local department how they should handle the minutia of record keeping.”
But it wasn’t “minutia” for the families of police victims.
The attorney general also said, “The statistics are important, but the real issues are: What steps are we all taking to connect communities … with police and back with government?’”
Lynch ignored the fact that many police departments were reckless in part because the Justice Department always championed them at the Supreme Court. Obama’s “Justice Department has supported police officers every time an excessive-force case has made its way” to a Supreme Court hearing, The Times noted.
In response to the dearth of reliable federal data, The Washington Post and The Guardian began tracking individual shootings by local police across the nation. The Guardian relied on crowdsourcing on the internet to compile its report, revealing that police killed 1,134 people across the nation in 2015. This was 2 1/2 times higher than the death toll the FBI reported the previous year.
The Ferguson protests spurred Congress to enact another law in December 2014, the Death in Custody Reporting Act, compelling states and federal agencies to fully report fatalities of people they had sought to arrest or detain. However, Obama’s Justice Department delayed for two years before even proposing regulations to enforce the new law and the eventual regulations provided no penalty for state and local law enforcement agencies that failed to report shootings.
Though the law required the feds to collect state fatality data by 2016, an inspector general report revealed that the agency did not even intend to attempt to garner such data until this year. As of last year, the Justice Department had not yet bothered to “implement a system for collecting data or release any new details of how and why people die under the watch of law enforcement,” The Associated Press reported.
The Justice Department is not the only grossly negligent federal agency on this front. The Centers for Disease Control and Prevention’s National Vital Statistics System tracks the causes of all deaths in the United States. That database, which is based on state death certificates, is widely regarded as highly accurate but the “law-enforcement related mortality” category has gaping holes.
A 2017 Harvard University study found that more than half of police killings in 2015 were “wrongly classified as not having been the result of interactions with officers.” Many were instead categorized as “accidental injury” or “undetermined.”
More than 30 people were killed by police in Oklahoma in 2015, but “none of them were counted on death certificates,” Harvard’s Justin Feldman observed.
Death certificates were especially likely to wrongfully omit the police role for deaths of “people under age 18, blacks, people killed by something other than a firearm (particularly Tasers, which accounted for 46 deaths), and people killed in low-income counties.”
Federal criminal neglect of police killings has continued for more than 25 years under both Democratic and Republican administrations. Perhaps the latest wave of outrage will finally produce substantive reforms. But fervent proclamations by former presidents are no substitute for accurate body counts from official killings.