Collins writes: "The BREATHE Act is a bold plan to address police violence - and it's made for this moment."

Policing in America. (photo: Christina Animashaun/Vox)
Policing in America. (photo: Christina Animashaun/Vox)

Now Is the Time to Revolutionize Policing

By Sean Collins, Vox

22 February 21

The BREATHE Act is a bold plan to address police violence — and it’s made for this moment.

onica Simpson grew up with a front-row seat to police harassment in North Carolina.

“It was in this rural town, where the cops were brutal and felt like they ran the entire town,” Simpson said. “The cops were constantly harassing young Black men and boys in our community.”

One day, as she sat on her porch with her cousin and sister, she watched police accost a group of men who often met at a community gathering spot nearby. It quickly escalated, and all of a sudden, both the men and the officers were running toward Simpson’s house, a police dog in tow.

“We were trapped on my front porch, you know, by this police dog, and by these police officers. And my cousins [were] trying to fight for their own lives, and also protect us.”

A white officer then pulled out a tube and pointed it at her. Simpson said she wasn’t sure what it was at first, but as soon as the chemicals hit her face, she realized it was pepper spray. “And so here we are on our front porch, which is where we’re supposed to be safe in our home, and we weren’t, you know. We were violated.”

Simpson was 11 years old at the time.

What Simpson experienced is all too common for Black children in America. In late January, a 9-year-old in Rochester, New York, was in the midst of what her mother has described as a mental health crisis when police handcuffed her and put her in a police car.

In body camera footage, the girl can be seen crying, begging for her father. “You said you were going to pepper-spray me! No! Please! Stop!” she says to the officers.

But the police don’t stop. “Just spray her at this point,” an officer says.

“When I saw the story of the 9-year-old little girl, I just immediately ... I felt it all over again,” Simpson, who is now the executive director of the reproductive justice organization SisterSong, said. “It’s a feeling that you just don’t forget, the pain and the smell and the feeling of that. My heart was pained that another young Black girl, like myself, like I was back in the day, is still having to deal with police brutality in this way.”

These incidents happen so frequently that violence against another Black girl — a 16-year-old in Florida — went viral just days before the Rochester body cam video did.

Police killings remain all too common as well. They spurred last summer’s worldwide racial justice protests, but in the months since, hundreds have lost their lives at the hands of police. In January alone, 70 people were killed by police, according to the Washington Post, a number that February appears on track to match. And Black people continue to be killed at a disproportionate rate: Of the police victims for whom race is known, at least 14 of those killed in January were Black — or at least 20 percent, although Black Americans make up only 13 percent of the population. According to Mapping Police Violence, police killed 233 Black Americans in 2020, slightly down from the 277 Black Americans killed in 2019.

The violence police inflict on Black Americans goes beyond those directly affected like Simpson. There is the emotional trauma of seeing one’s relative beaten or cuffed arbitrarily, the grief that comes with losing a loved one to a prison cell. And there is also the psychological terror created by seeing police brutality — it hangs over Black Americans, aware that police could turn on them or their loved ones at any time.

“I think that’s the thing that keeps me up at night,” Simpson said. “Worrying about my nephews, or the young girls in my family or in my community, coming in contact with a police officer that doesn’t see them as human, that doesn’t see them as a person, as a young person, as a child.”

No one should feel this fear. Change is necessary.

While there has been some change at the local level — in Denver, Colorado, health care professionals have begun responding to mental health emergencies as part of a pilot program — new policy must be set at the federal level. Doing this would mean one policing standard, and the same limits on brutality, for all Americans.

There are a number of proposals that might achieve this aim. One that would bring particularly sweeping change is the BREATHE Act, a plan written by activists at the Movement for Black Lives and backed by progressive Reps. Ayanna Pressley (D-MA) and Rashida Tlaib (D-MI). Its central premise is that policing can only be fixed by addressing a range of systemic problems, and posits that state and local governments can be incentivized to contend with these issues through financial aid.

“BREATHE is a bill that invests,” Essie Justice Group founder and executive director Gina Clayton-Johnson, who led the creation of the BREATHE Act, told me. “It’s about making sure that states and local places have what they need in order to provide for the safety of their communities. And we divest from the very things that have been harming and stand as an impediment to safety.”

Those divestment include defunding large swaths of the federal law enforcement apparatus, including the Drug Enforcement Administration and Immigration and Customs Enforcement. Measures such as these have been rejected by Republicans and Democrats alike as too radical. But a problem as deep-rooted and damaging as policing requires a radical solution — one that does not just reform police departments but rethinks them.

As Simpson told me, “Whenever there are people out here wearing these uniforms that don’t see Black people in this country as the human beings that we are, or Black children as the children that they are, that’s a hard thing to reform.”

Policing has been a problem for centuries. Reforming it has been difficult.

Policing and terror have historically gone hand in hand for Black Americans.

A progenitor of the modern US police, slave patrols, was used to ensure Black Americans could not escape the cruel conditions or social and economic exploitation of slavery. After emancipation, targeted laws led to sentences in forced work gangs. Later, a nationwide campaign of lynchings and general racial terror went largely unchecked — and was sometimes participated in — by police officers. More recently, demands to end police brutality, the disproportionate detainment of Americans of color, and police killings have gone unheard.

That this situation has gone unremedied has not been for a lack of trying. Abolitionists argued against slave patrols, and activists like W.E.B. Du Bois, Ida B. Wells, and Angela Davis called for prison reforms, for ending work gangs and stopping lynching. Protesters throughout the 20th century demanded an end to police killings, and police brutality more broadly. But the response was often muted. Prison labor remains a problem; lynching still is not a federal crime. Sweeping federal action has been, to put it lightly, elusive.

As the Congressional Research Service points out, “the U.S. Constitution established a federal government of limited powers. A general police power is not among them.”

The federal government can set some standards for state and local departments to abide by, and already has broad powers to protect citizens from misconduct. For instance, the Congressional Research Service points out that it’s “a federal crime to willfully deprive a person of his or her constitutional rights while acting under color of law,” and that the Justice Department can investigate repeated abuses of “rights ... secured or protected by the Constitution or laws of the United States.”

But the Justice Department has not always used its investigative ability; recently, its will to do so has waxed and waned depending on the occupant of the White House. Barack Obama’s administration was bullish about investigation and DOJ oversight, launching 25 inquiries, while Donald Trump’s team was dismissive of it, beginning just one. President Joe Biden has indicated plans to reverse Trump-era policy, again encouraging the Justice Department to look into patterns of abuse.

But the power for true broad change sits in Congress. That body has the ability to expand the DOJ’s oversight role, and to levy new requirements on state and local law enforcement. Given its control of spending, Congress can also attempt to influence behavior through financial incentives — and it’s this power the BREATHE Act turns upon to advance state and local police reform.

A proposal for reform through divestment in federal agencies — and reinvestment in communities

“Very little policy that I’ve read, very few pieces of legislation, has actually inspired me, because most legislation kind of limits itself to just pragmatism,” Melina Abdullah, the co-founder of Black Lives Matter Los Angeles, told me. “What we have with the BREATHE Act is really a visionary piece of legislation that says now is the time to reimagine public safety.”

The premise of the BREATHE Act is that a breadth of solutions is needed to stop police terror — ranging from economic investment to new programs focused on serving those affected by police misconduct — and that these initiatives must be paid for by defunding a number of federal law enforcement initiatives. To encourage state and local reform, the act lays out a range of grants and financial incentives.

“The BREATHE Act is approaching not the tip of the iceberg, but the iceberg itself,” Clayton-Johnson told me. “It’s looking at what is it that has allowed for us to live in a society in which these horrific events can take place on such a regular basis, where there’s such a high level of state violence that is happening.”

The proposal takes a broad approach, with sections addressing the racial wealth gap, inequities in education, immigration policy, and affordable housing, among other issues. With respect to policing, the act proposes defunding — and in some cases, abolishing — some federal law enforcement agencies.

For instance, the proposal would end federal initiatives known as Programs 1033 and 1122, which allow for the transfer of military equipment to police, and for state and local governments to go through federal sources to buy supplies for anti-drug work, respectively. As CNBC has reported, departments have received roughly $7.4 billion worth of military equipment through program 1033 alone.

Outside of demilitarization, the proposal would also eliminate some direct payments sent to state and local governments, like the $61 million the Trump administration set aside in May 2020 to expand state, local, and federal law enforcement forces in seven cities with large minority populations “caught in the grips of violent actors.”

Ultimately, federal law enforcement under the BREATHE Act would look radically different than it does currently. For instance, the proposal calls for no longer funding many of the agencies tasked with carrying out the “war on drugs,” including the Drug Enforcement Administration (DEA) and the DOJ’s Narcotic and Dangerous Drug Section. This federal policy is often seen as having increased the police scrutiny and incarceration of people of color43 percent of Black people incarcerated federally as of September 2019 were imprisoned for drug offenses; according to an analysis by the NAACP, 33 percent of Americans incarcerated for drug crimes are Black, despite only about 5 percent of drug users being Black.

The act would also eliminate the Justice Department’s anti-gang groups, close parts of the FBI, and abolish large swaths of the Department of Homeland Security, including Immigration and Customs Enforcement (ICE) and the Denaturalization Task Force.

To address the toll policing has taken on communities of color, the plan would enact a number of restorative federal policies, including, among many other things:

The BREATHE Act calls for using the money saved from reducing the federal law enforcement apparatus to fund federal offices focused on supporting youth and survivors of violence, and would go to Native governments and programming meant to promote “non-putative” justice system reforms.

Many of the activists I spoke with said that stripping these federal groups of their funding is essential to reform because they have proven too harmful to Black Americans; instead, they argue, it is better to, as the BREATHE Act suggests, create a new public safety system.

“We can’t keep building on a system that is broken,” Simpson said. “This is the time for us to look at legislation like the BREATHE Act that does call for more radical and revolutionary ways of dealing with this crisis that we are in the midst of in this country.”

Reimagining local policing begins with grants and incentives

The BREATHE Act’s changes would apply only at the federal level; it would not bring sweeping change to state and local policing immediately upon passage. But Clayton-Johnson noted that the proposal was designed with this reality in mind. The BREATHE Act includes federal grants and incentives meant to encourage, and provide resources to, state and local governments to make changes that mirror those that BREATHE would enact on the federal level.

These grants would be made available to state and local governments willing to pursue jail and prison closures, alternative public safety departments, and demilitarizing. Money would also be put aside for governments to dissolve departments accused of a “pattern of misconduct,” for those that repeal rules that shield officers from disciplinary action, that make allegations and complaints against officers public, and that abolish officer bills of rights. And it could be used both for “paying reparations to individuals who have been the victims of police misconduct” and to further invest in programs that provide alternatives to policing.

Clayton-Johnson acknowledged that these grants and incentives — although designed to be attractive and accessible — won’t be pursued by all state and local governments, just as many states rejected the Affordable Care Act’s Medicaid expansion, despite the federal government’s offer to cover 90 percent of costs for those states willing to expand the program.

To safeguard against this reality, the proposal does three things. First, it creates separate grants and incentive programs for state and local governments. That way, if state-level officials are opposed to reform but local officials want to make changes, those local officials can apply for grants (or receive incentives) unilaterally. The opposite is also true — county officials might block reform, but state officials could engage with state-level benefits to work around that.

Second, it empowers activists and community organizers to continue their advocacy regardless of their local political reality, by providing money for initiatives on overcoming trauma, violence reduction, post-incarceration life, public safety, and expanded access to housing.

Programs such as these work to attack factors that have been found to lead to increased police violence, such as housing segregation, and to reduce the need for police — a 2017 study from the American Institutes of Research, for instance, found community-based youth enrichment programs led to 5 to 5.7 fewer victims of violence ages 14 to 24 per 100,000 people per month. Beyond being a resource for continuing community activism, these grants could also be used to lobby state and local officials resistant to reform for change.

Finally, it provides grants and incentives for reforms in areas that do not necessarily seem connected to policing on their face — such as inequities in education, internet access, health care, transportation, and housing — but that can contribute to overpolicing and increases in the carceral state. Governments do not have to change their policing practices to be eligible for this money, but meeting the requirements would likely reduce contact with officers; for example, the education grants could be used for a range of student support and violence reduction services that could take the place of police officers in schools.

Ultimately, the BREATHE Act is an ambitious proposal that goes far beyond the reforms that lawmakers began discussing in the wake of 2020’s nationwide civil rights protests. And, as it requires defunding law enforcement, it demands enacting reforms most lawmakers — of both parties — have said they are uncomfortable with.

But many activists argue that by remaining in their comfort zones, lawmakers are placing Black Americans in a dangerous position. The BREATHE Act was created to push the envelope, and to try to move the Overton window — the range of ideas considered feasible, or at least worthy of serious consideration and debate — toward sweeping reform. Many activists I spoke to acknowledged that support for the policies included in the BREATHE Act is limited at the moment, but said that did not mean it should be read only as an aspirational document.

“We’re going to have to do some education around why we don’t have time to tinker around the edges of a policing system that puts targets on the backs of black people,” Abdullah said. “We don’t have time to say, you know, we’re gonna think about it, we’re gonna put Band-Aids on it, we’re gonna make temporary fixes. Now is the time to be bold and courageous.”

There’s reason to be hopeful about federal police reform, but challenges remain

It will certainly take great effort to make the reforms in the BREATHE Act a reality. But there have been suggestions that police reform of some sort may be possible now that Democrats control both Congress and the White House.

Biden has promised to focus on enacting a range of reforms, including some featured in the BREATHE Act, such as the elimination of mandatory minimum sentences and the expansion of social service programs. He has rejected defunding law enforcement, but many activists see him as more willing to alter policing policy than his predecessor.

Democratic congressional leaders have signaled plans to quickly pursue reform, but on more limited terms: House Majority Leader Steny Hoyer recently announced plans to for an early March vote on the George Floyd Justice in Policing Act, which was introduced in the last Congress and would force state governments to report all use of force incidents to the Justice Department.

That act would bring about significant change — from ending qualified immunity to expanding collection of policing data to banning chokeholds and no-knock warrants at the federal level — but would offer little incentive for state and local reforms, and in general falls far short of the sweeping change proposed by the BREATHE Act, leaving many activists concerned that, should it pass, the legislation would not significantly reduce police violence.

Simpson argues that politicians should not be afraid to make radical changes, given “the ways that our folks have been voting” and “the ways that people have been showing out and showing up whenever there is an injustice.”

Lawmakers do appear to be facing more constituent pressure to take on police reform than ever before. Throughout the country, police reform ballot initiatives saw broad success during the 2020 election, and polling done during the height of 2020’s civil rights protests found most Americans believe police need to make changes to ensure all Americans are treated equally.

Those demonstrations brought many Americans who had never protested before into activism. They also further galvanized reformers long working to end police violence, giving new strength and coordination to the activist movement, Clayton-Johnson said.

“Our Movement for Black Lives and all of our allies are clear, and are stronger than we have ever been,” Clayton-Johnson said. “We’re incredibly organized and incredibly motivated to push in this moment.”

That organization has paid off, she said, in creating among both the public and lawmakers “a deep level of sophisticated understanding about what it is going to take for Black people to be safe.”

It’s all these things together — a civil rights movement that has the support of most Americans, the continued work of national and local activists, and having a party in power that has made policing reform a priority, as well as constant graphic and tragic examples of the scale of the problem — that make for a unique moment in which it feels possible to bring about reform that would truly improve the lives of Americans of color, particularly Black Americans.

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