Herring Urges Congress to Give State Attorneys General Authority to Investigate Unconstitutional Policing

Attorney General Mark R. Herring has joined a coalition of 18 attorneys general in urging Congress to expand federal law to give state attorneys general clear statutory authority to investigate patterns or practices of unconstitutional policing. In a letter sent to Congressional leadership, the coalition argues that state attorneys general should have the authority to investigate and resolve patterns or practices of unconstitutional policing, particularly in the event that the U.S. Department of Justice (DOJ) fails to use its authority to act. In their letter, Attorney General Herring and his colleagues ask Congress to expand the law enforcement misconduct section of the Violent Crime Control and Law Enforcement Act of 1994, which was enacted following the severe beating of Rodney King by Los Angeles Police Department officers in 1991.
“We can no longer allow instances of police misconduct and brutality to go unchecked in this country,” said Attorney General Herring. “It is time to eliminate systemic failures at every level of government that contribute to police misconduct and find every way possible to bring justice to victims and their families. Giving state attorneys general the authority to investigate police misconduct, especially when the federal government is unwilling or unable to, is an important step in dismantling aspects of our criminal justice system that allow this conduct to occur.”
Attorney General Herring and the coalition are calling on Congress to take urgent action as tens of thousands of Americans march in cities throughout the country to protest police brutality and the systemic failures that cause and allow misconduct to continue. The coalition is asking Congress to grant statutory authority to conduct “pattern-or-practice” investigations, to obtain data regarding excessive use of force by law enforcement officers, and to bring appropriate actions in federal court to ensure constitutional policing in states, in particular when the federal government is unwilling or unable to act. According to the attorneys general, the DOJ initiated 69 pattern-or-practice investigations between 1994 and 2017, which resulted in 40 court-enforceable consent decrees. However since 2017, the DOJ has largely curtailed the ability of federal law enforcement to use court-enforced agreements to reform local police departments. Since January 2017, the DOJ has initiated zero pattern-or-practice investigations into police conduct and has not entered any consent decrees. The attorneys general explain that the DOJ’s refusal to address the pervasive problem of police misconduct has left communities without critical civil rights protections. As a remedy, the coalition is asking Congress to authorize state attorneys general, in addition to the DOJ, to investigate complaints of pattern-or-practice violations through the use of investigative subpoenas, which the DOJ has proposed in the past to help strengthen its oversight capacity. Additionally, the coalition is asking that attorneys general be granted authority to gather data about the use of excessive force by law enforcement officers. Such data would be essential when identifying law enforcement agencies that have above-average rates of excessive force complaints, which can also help identify at-risk law enforcement agencies before a devastating incident occurs. For example, the former Minneapolis police officer accused of killing 46-year-old George Floyd on May 25 had 18 prior complaints filed against him with the Minneapolis Police Department’s Internal Affairs. According to a 2018 report issued by the U.S. Commission on Civil Rights, people of color comprise less than 38 percent of the nation’s population, yet they make up almost 63 percent of unarmed people killed by police. Additionally, unlawful use of force by police officers rarely leads to discipline, termination or criminal punishment. The advocacy group Mapping Police Violence found that 99 percent of police killings from 2014 to 2019 did not result in officers being charged with or convicted of a crime.
Joining Attorney General Herring in filing the comment letter are the attorneys general of California, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, and Vermont.