An identically named panel was formed by President Lyndon B. Johnson in 1965, and led to advances such as the creation of the 911 emergency call system and improved training for law enforcement. A bill to once again create such a commission was introduced in the Senate in 2017, and again this year, but never moved even though senators on both sides of the political aisle declared their support and it didn’t seem particularly controversial. The NAACP Legal Defense Fund, the National Urban League and the Leadership Conference on Civil and Human Rights also endorsed the bill as a way to enact criminal justice reform on a large scale.
So police groups such as the International Association of Chiefs of Police and the Fraternal Order of Police turned to the White House for help. “From the IACP’s perspective,” said Terry Cunningham, deputy executive director of the IACP, “we honestly didn’t care whether it got done through legislation or an executive order, we just wanted to see it come to fruition. It’s an opportunity to recalibrate everything we do and how we do it in policing.” He noted that President Barack Obama’s 21st Century Task Force on Policing in 2015 called for “the creation of a National Crime and Justice Task Force to review and evaluate all components of the criminal justice system for the purpose of making recommendations to the country on comprehensive criminal justice reform.”
Jim Pasco, executive director of the National Fraternal Order of Police, said the police union had previously opposed such a commission “and effectively blocked it legislatively, because there was no provision for a rank-and-file representative on the commission. Ninety-four percent of law enforcement members are state and local, and 99 percent are rank-and-file, they should be represented.” He said the IACP had helped create the commission, “but we did extract a commitment that we’ll be on it.”
But where the legislation called for co-chairs appointed by the president and Congress, and required at least four law enforcement and two tribal law enforcement officials, Trump’s executive order merely states, “The attorney general shall determine the composition of and procedures for the functioning of the commission,” to include naming the chairman and also for the attorney general to invite elected state, local and tribal officials.
The composition of the commission hasn’t been announced, and Cunningham said, “We want to make sure we have people that are not in lockstep with law enforcement. That gives the commission the credibility that it needs to create a living, breathing document.” A number of groups that might be expected to be part of the discussion said they had not yet been invited, including the National District Attorneys Association, the National Association of Criminal Defense Lawyers, the NAACP Legal Defense Fund, the Leadership Conference on Civil and Human Rights and the Major Cities Chiefs Association, a much smaller group than the IACP that focuses on issues specific to large cities. Art Acevedo, the Houston police chief and head of the Major Cities Chiefs, said, “We fully anticipate being part of it.”
The legislation envisioned the commission having 18 months to complete its work, but the president’s executive order requires a report to be completed within a year of the Oct. 28 signing date, meaning it has roughly 10 months left to work.
Supporters of the legislation aimed to create a body to discuss challenges such as overburdened courts, unsustainable incarceration costs, national security, prisoner reentry, victims’ rights and civil rights and liberties. But the new executive order is more police-centric, calling on the commission to examine such issues as challenges police face as they encounter those suffering mental illness and substance abuse and the homeless. It also will look at recruitment and training of police, physical safety and health of police officers, and both the benefits and challenges to law enforcement of technological advances.
The order also calls on the commission to study “the need to promote public respect for the law and law enforcement officers” and “refusals by state and local prosecutors to enforce laws or prosecute categories of crimes.”
“The thrust of the order,” said Nina J. Ginsberg, a Virginia-based lawyer who is president of the defense lawyers’ association, "begs the question as to how interested this commission will be in solving the deep and structural problems in America’s criminal justice system, as opposed to simply delivering on certain law enforcement requests.” Ginsberg said the order “altogether fails to acknowledge or propose solutions to critical criminal justice issues like mass incarceration, systemic racism, disparate policing of minority and poor communities” and “reads like a road map for repeating precisely the same mistakes that brought America’s criminal justice system to its current, abysmal state.” She said the defense group stood ready to help.
Cunningham said he expected the commission would create working groups on a wide range of topics. “It’s not just policing, it’s the broken criminal justice system,” Cunningham said. He said the working groups would look at how police handle mental health calls and how other social service agencies can help. He said the commission also needs to examine not only using new technology, but figuring ways to overcome technology that is used to commit crime, as well as recruitment of new officers and getting more women and minorities to put the badge on.
“Everything the working groups do,” Cunningham said, “they have to find a bipartisan way in Congress to implement all of these things. We’ll have their report, but how do you get it funded?”
Pasco said ample new research on officer wellness should be studied, as well as “how to fix the schism between police and the community. Another focus that’s certainly going to be incendiary is these out-of-control prosecutors,” referring to progressive prosecutors who have decided not to enforce certain drug laws or seek cash bond for certain offenders. “That’s a big one. That and unprovoked violence against police.”
“We need this commission," said Steven R. Casstevens, chief of the Buffalo Grove, Ill., police and president of the IACP, "because although we can identify many of the challenges that are confronting the criminal justice system, identifying effective solutions is not always that easy. The commission will have the opportunity to examine our entire criminal justice system and the many issues encompassing it — policing, courts, community, corrections, victims’ rights, national security, and the intersection of criminal justice with social and faith-based services. This goes far beyond past efforts that have focused solely on law enforcement.“
Cunningham said the Justice Department would commit significant resources to support the commission. He said Dean M. Kueter Jr., an adviser in the Office of Legislative Affairs at the Justice Department, would be the commission’s executive director, and Tim Shea, senior counsel to Attorney General William P. Barr, would also work with the commission. The Justice Department declined to comment for this story.
Here is the full executive order.