The Federal Government's Role in Local Policing

101 Pages Posted: 30 Jan 2024

See all articles by Barry Friedman

Barry Friedman

New York University School of Law

Rachel Harmon

University of Virginia School of Law

Farhang Heydari

Vanderbilt Law School

Date Written: December 19, 2023

Abstract

For far too long, the federal government has failed to exercise its constitutional authority to mitigate the harms imposed by local policing. Absent federal intervention, though, some harmful aspects of policing will not be addressed effectively, or at all. States and localities often lack the necessary capacity and expertise to change policing, and many states and localities lack the will. This Article argues for federal intervention and describes what that intervention should look like.

The Article begins by describing three paradigmatic areas of local policing that require federal intervention to create real change: excessive use of force, racial discrimination, and the unregulated use of surveillance technologies. Because state and local governments are either unable or unwilling to address these problems alone, the federal government should intervene to identify and enforce minimum standards, develop best practices, collect data, and distribute resources nationwide.

Regrettably, Congress has failed to act adequately to improve local policing for the better, although it has tried to encourage reform through the use of its Spending Power. This Article argues that Congress should utilize its regulatory powers under Section 5 of the Fourteenth Amendment and the Commerce Clause to address these paradigmatic problem areas, and it explains how this can be done consistently with Supreme Court doctrine.

Alongside—or in the absence of—congressional action, the executive branch has the power and responsibility to act to address policing’s harms. The Article explains that, though indirect, the President wields considerable power to influence policing by setting policy, implementing federal programs, enforcing civil rights, and supervising federal law enforcement. Although the executive branch should use this power to promote local policing that is effective, fair, and accountable, and that minimizes harm, administration after administration has failed to do so consistently and also has failed to hold federal law enforcement to these standards. Recent executive branch efforts have improved the situation, but there still exists a gaping chasm between how the federal government should be influencing local policing and how it is doing so today.

Suggested Citation

Friedman, Barry and Harmon, Rachel and Heydari, Farhang, The Federal Government's Role in Local Policing (December 19, 2023). 109 Virginia L. Rev. 1527 (2023), Available at SSRN: https://ssrn.com/abstract=4685414

Barry Friedman

New York University School of Law ( email )

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Rachel Harmon

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Farhang Heydari (Contact Author)

Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203
United States

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