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States make headway on criminal justice reform after Congress falls short

President Joe Biden, in his first address to Congress, pressed lawmakers to send him a massive police reform bill in the name of George Floyd by May 25 — the one-year anniversary of his murder.

It never happened. After missing that deadline, bipartisan talks sputtered over the summer before eventually collapsing.

While Washington has little to show for its efforts, state and local governments spent 2021 charging ahead with changes of their own, from overhauling police training to restoring the right to vote for formerly incarcerated people.

Indiana, Nevada, Texas and Virginia all enacted laws this year aimed at beefing up police training by focusing on communication skills and de-escalation techniques. Meanwhile, a number of states have introduced rules saying officers must intervene when they see a colleague engaging in excessive force or misconduct.

California, Kentucky, Maryland and North Carolina implemented laws that either establish or enhance access to databases of police officers who have been fired for misconduct to make sure they are not hired in another jurisdiction. Louisiana went a step further by enacting a law that imposes fines on agencies that fail to report when an officer is fired for wrongdoing.

To some advocates, criminal justice issues are better handled by states, not Congress.

“It’s important that the federal government act, but they have limited authority,” said Nancy La Vigne, executive director of the Council on Criminal Justice’s task force on policing.

For instance, the vast majority of the country’s roughly 18,000 police departments are controlled at the state level, and many states oversee a large swath of the nation’s prisons and jails compared to the federal government.

“So that makes it all the more important that states don’t wait for the feds and do things on their own,” La Vigne added.

Even though Congress was unable to pass the George Floyd Justice in Policing Act, some experts say the ambitious nature of the legislation helped set the tone for what states can achieve.

“It would have done a lot, but it was necessary for states to take the example of the Justice in Policing Act and use that as a way to consider areas of change,” said Arthur Ago, director of the Criminal Justice Project at the Lawyers’ Committee for Civil Rights Under Law.

One of the states codifying sweeping reforms this year was Washington, where Gov. Jay Inslee, a Democrat, signed bills that banned chokeholds, neck restraints and no-knock warrants like the kind that helped lead to Breonna Taylor’s killing in Louisville, Kentucky, in March 2020. The Washington Legislature also passed a bill that allows judges to revisit sentences of people serving lengthy prison terms.

Nazgol Ghandnoosh, a senior researcher at The Sentencing Project, said much of the work at the state level has been driven by grassroots activists, spurred in large part by the deaths of Floyd and Taylor at the hands of police.

“I think growing bipartisan interest in this issue is because of the recognition of the ineffectiveness of incarceration, how expensive it is and the realization that we don’t need to be spending this much money to incarcerate so many people in order to maintain or even advance the levels of public safety that we have,” she said.

Despite recent progress at the state level, Ghandnoosh said there have been some setbacks on criminal justice reform.

For the first time in eight years, the federal prison population has increased — by roughly 5,000 inmates, according to federal data and an analysis by the Sentencing Project. Much of that increase was because courts and prisons halted or slowed their caseload at the onset of the coronavirus pandemic, Ghandnoosh said.

California’s prison population grew by 5 percent this year, compared to 2020, and prison admissions increased in Florida.

“It’s disturbing to see that the numbers have started to go up in 2021,” Ghandnoosh said. “And so there really needs to be focused attention to try to prevent further growth of the prison population in the United States.”

Even as lawmakers on Capitol Hill failed to coalesce around a criminal justice reform bill, the Biden administration has taken some steps of its own. The administration banned chokeholds and no-knock warrants at the federal level while offering more services for people returning home from prison. The Justice Department also rescinded a Trump-era policy that directed prosecutors to pursue the most serious charges for any crime and launched civil rights probes of several police departments.

Former President Donald Trump also took action on criminal justice reform, signing into law the bipartisan First Step Act, which implemented measures to reform federal prison sentencing.

Biden spoke about reform efforts Friday during a commencement address at South Carolina State University, a historically Black university.

“Criminal justice reform, we need it from top to bottom,” he said. He later added, “This administration is going to continue to fight for meaningful police reform in Congress and through additional executive actions.”

Biden also said he wants to help formerly incarcerated individuals “re-enter their communities” by expanding access to grants for education and job training programs.

For 2022, legislators in states like Florida, New York and Tennessee plan to build on some of this year’s momentum by introducing proposals on issues like expanding education access to inmates, eliminating mandatory minimum sentences and overhauling the bail bond industry.

Overall, though, the uneven progress on criminal justice reform is a sign of a growing appetite for reform in some parts of the country clashing with longstanding resistance to imposing significant changes, according to some advocates.

Ago, of the Lawyers’ Committee for Civil Rights Under Law, noted that some communities have been pushing for reforms since 2014, after the killing of Michael Brown in Ferguson, Missouri.

“We’ve obviously seen a lot of Black people, and people of color, harmed by the police since Michael Brown was killed,” Ago said. “I can say that it is still too soon to tell in some jurisdictions — you’re seeing a change that is making a difference, but in other jurisdictions, it’s still a little bit too early to tell.”

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