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Today, the White House released the following fact sheet regarding President Biden’s executive order on policing, on the two year anniversary of George Floyd’s murder:
Two years ago, the murder of George Floyd exposed for many what Black and Brown communities have long known and experienced — that we must do more to ensure that our Nation lives up to its founding promise of fair and impartial justice for all. The incident sparked one of the largest social movements this country has ever seen, with calls from all corners to acknowledge the legacy of systemic racism in our criminal justice system and in our institutions more broadly.
Today, President Biden will sign a historic executive order (EO) to advance effective, accountable policing and criminal justice practices that will build public trust and strengthen public safety. Police cannot fulfill their role to keep communities safe without public trust and confidence in law enforcement and the criminal justice system. Yet, there are places in America today where the bonds of trust are frayed or broken. To heal as a nation, we must acknowledge that fatal encounters with law enforcement have disproportionately involved Black and Brown people.
President Biden’s EO will enhance public trust by promoting accountability, transparency, and the principles of equality and dignity in policing and the larger criminal justice system. Increased trust makes policing more effective and thereby strengthens public safety. Without that trust, victims do not call for help. Witnesses do not step forward. Crimes go unsolved. Justice is not served. The EO mandates measures for all Federal law enforcement agencies, leveraging the President’s direct authority over the executive branch. The EO also requires the use of federal tools such as guidance on best practices, training and technical assistance, and grantmaking to support reforms at State, Tribal, local, and territorial law enforcement agencies that will strengthen public trust and improve public safety across the nation.
Promotes Accountability
Creates a new national database of police misconduct. The EO orders the Attorney General to establish a National Law Enforcement Accountability Database, in which all Federal law enforcement agencies (Federal LEAs) must participate. The database will include records of officer misconduct (including convictions, terminations, de-certifications, civil judgments, resignations and retirements while under investigation for serious misconduct, and sustained complaints or records of disciplinary actions for serious misconduct), as well as commendations and awards.
The database will have due process protections for officers. All federal agencies must use the database in screening personnel, and it will be accessible to state and local LEAs, who are encouraged to enter their records as well. The Attorney General will make aggregate data, by law enforcement agency, public, and will assess what whether and in what form records from the database may be accessible to the public.
Strengthens Pattern or Practice Investigations.The EO requires steps to improve the investigation and prosecution of criminal civil rights violations, including directing the issuance of best practices for independent investigations and improving coordination to address systemic misconduct through pattern-or-practice cases.
Ensures timely and thorough investigations and consistent discipline. The EO requires Federal LEAs to adopt measures to promote thorough investigation and preservation of evidence after incidents involving the use of deadly force or deaths in custody, as well as to prevent unnecessary delays and ensure appropriate administration of discipline.
Mandates the adoption of body-worn camera policies. The EO orders all Federal LEAs to adopt and publicly post body-worn camera policies that mandate activation of cameras during activities like arrests and searches and provide for the expedited public release of footage following incidents involving serious bodily injury or deaths in custody.
Raises Standards
Bans the use of chokeholds and carotid restraints unless deadly force is authorized, and restricts the use of no-knock entries. The EO orders all Federal LEAs to adopt policies that ban chokeholds and carotid restraints unless deadly force is authorized and restricts the use of no knock entries to a limited set of circumstances, such as when an announced entry would pose an imminent threat of physical violence.
Requires new standards that limit the use of force and require de-escalation for all federal agencies. The EO orders all Federal LEAs to adopt use of force policies with requirements that meet or exceed those in the Department of Justice’s updated use-of-force policy, which authorizes force only when no reasonably effective, safe, and feasible alternative appears to exist; authorizes deadly force only when necessary; and emphasizes de-escalation. The policy also imposes a duty to intervene to stop excessive force and a duty to render medical aid. Federal LEAs must conduct annual training on those policies, implement risk management tools to facilitate appropriate interventions before problematic behavior escalates, and ensure accountability for policy violations. The policy is publicly available on DOJ’s website.
Restores and expands upon the Obama-Biden Administration’s restrictions on the transfer of military equipment. The EO imposes sensible restrictions on the transfer or purchase with federal funds of military equipment that belongs on a battlefield, not on our streets. The list of prohibited equipment is broader than under the Obama-Biden Administration, and the EO’s mandate is broader than the George Floyd Justice in Policing Act (GFJPA) in that it pertains to all relevant programs, not only the Defense Department’s 1033 program. The EO continues to ensure that state and local LEAs can access and use appropriate equipment for disaster-related emergencies; active shooter scenarios; hostage or search and rescue operations; and anti-terrorism efforts.
Supports Law Enforcement with Improved Systems and Training
Requires an updated approach to recruitment, hiring, promotion, and retention of law enforcement officers. The EO requires Federal LEAs to develop best practices to attract, support, and retain an inclusive, diverse, expert, and accountable law enforcement workforce, including by implementing screening tools to ensure that agencies do not hire or retain, or partner with on task forces, individuals who promote unlawful violence, white supremacy, or other bias on the basis of protected characteristics. The working group also will identify ways to expand mentorship and leadership opportunities, and ensure that performance evaluations and promotions are tied to an officer’s adherence to these policies.
Reimagines Crisis Response. The EO directs the Attorney General and the Secretary of Health and Human Services (HHS) to issue guidance and identify federal resources for innovative models to respond to persons in crisis, including co-responder and alternative responder models, community-based crisis centers, and post-crisis care. It also orders guidance on the use of pharmacological agents such as ketamine outside the hospital setting.
Prioritizes Officer Wellness. The EO directs DOJ and HHS to publish best practices and standards to promote officer wellness and to identify resources to support wellness programs, and requires each Federal LEA to assess and improve its own Officer Wellness program. The Attorney General must also recommend measures to the President to help prevent officer suicide, after consultation with HHS and stakeholders.
Requires new standards for accreditation and for accrediting bodies. The EO requires the Attorney General, after consultation with stakeholders, to formulate standards for bodies that accredit law enforcement agencies. Those standards must include that the accrediting body requires policies consistent with those of the EO, and that the accrediting body conducts independent assessments of agency compliance rather than rely on the agency’s self-certification. The Attorney General must also incentivize and support agencies in seeking and obtaining accreditation, including through grantmaking.
Implements a new, evidence-informed annual anti-bias training requirement. The EO requires development of an evidence-informed training module for law enforcement on implicit bias and avoiding improper profiling based on the actual or perceived race, ethnicity, national origin, limited English proficiency, religion, sex (including sexual orientation and gender identity), or disability of individuals. Federal LEAs must conduct that training annually, implement procedures to respond meaningfully to complaints of bias, and reassess a 2014 guidance on use of certain protected characteristics by law enforcement.
Improves Data Transparency and Oversight of New Technologies
Tracks data on use of force incidents. Within six months of the date of the EO, all Federal LEAs must collect and submit on a monthly basis all data on incidents involving use of deadly force compiled by the FBI’s Use of Force Data Collection. The Attorney General must also facilitate the contribution of this data, as well as data about officers killed or assaulted, by STLT LEAs, and report to the President his plan to fully implement the Death in Custody Reporting Act.
Studies the impact of use of force incidents on communities. The EO directs HHS to publish a nationwide review of the physical, mental, and public health effects of use of force incidents on communities, including any disparate impacts, and outline available resources to support mental health and support services. It also tasks the Attorney General to issue best practices for conducting law enforcement-community dialogues, and for ensuring timely and appropriate notification of deaths in custody.
Safeguards the use of facial recognition technology and other sophisticated algorithmic tools. The EO directs the National Academy of Sciences to conduct and publish a study of facial recognition technology, other biometric technologies, and predictive algorithms that assesses any privacy, civil rights, civil liberties, accuracy, or disparate impact concerns with their use. This study will then be used to make any necessary changes to Federal law enforcement practices.
Enhances data collection and data transparency. A working group will write a report to the President on how to collect and publish data on police practices (including calls for service, searches, stops, frisks, seizures, arrests, complaints, law enforcement demographics, and civil asset forfeiture), and on the practices and policies governing the acquisition and use of advanced surveillance and forensic technologies.
Reforms Our Broader Criminal Justice System
Directs a government-wide strategic plan to propose interventions to reform our criminal justice system. A new committee with representatives from agencies across the federal government will produce a strategic plan that advances front-end diversion, alternatives to incarceration, rehabilitation, and reentry. The Attorney General will also publish an annual report on resources available to support the needs of persons on probation or supervised release.
Improves conditions of confinement. The Attorney General, in consultation with the Secretary of Health and Human Services, will update procedures as necessary to increase mitigation of Covid-19 in correctional facilities; expand the publication and sharing of vaccination, testing, infection, and fatality data disaggregated by race, ethnicity, age, sex, disability, and facility; and to identify alternatives to facility-wide lockdowns and restrictive housing to reduce the risk of transmission. The Attorney General will also report to the President on steps to limit the use of restrictive housing and improve conditions of confinement, including with respect to the incarceration of women, juveniles, and persons in recovery.
Requires full implementation of the FIRST STEP Act. The Attorney General will update DOJ policy as necessary to fully implement the FIRST STEP Act and to report annually on implementation metrics, including an assessment of any disparate impact of the PATTERN risk assessment tool and steps to correct any such disparities.
