The George Floyd Justice in Policing Act vs. the BREATHE Act

By: Prema Rahman, MPAC Policy Analyst

Illustration by Egan Jimenez, Princeton School of Public and International Affairs

When the Derek Chauvin verdict was announced last month, convicting the officer on all counts for the murder of George Floyd, many Americans recognized the historic implications of the case. In a country whose justice system has time and time again failed to deliver justice to Black Americans, the verdict represented a step toward mending our broken system. Others cautioned against celebrating the moment as a victory of justice — true justice would exist only if Floyd, Breonna Taylor, Daunte Wright, Ma’Khia Bryant, and countless other Black lives were still alive today. True justice demands a systemic rehaul and the subsequent end of police brutality. Two major congressional bills are aiming to do just that: the George Floyd Justice in Policing Act and the BREATHE Act of 2021. Though the intent of both bills appear to be the same, an analysis of their differences is imperative to not only understanding the politics influencing each legislation, but ultimately, what provisions and actions are needed to resolve the issue at hand.

George Floyd Justice in Policing Act of 2021

Of the two, the Justice in Policing Act (H.R. 1280) is the more widely recognized bill. Originally introduced by Congresswoman Karen Bass (D-CA 37) in the 116th Congress, it aims to “hold law enforcement accountable for misconduct in court, improve transparency through data collection, and reform police training and policies.” Key provisions include: the prohibition of racial and religious profiling; the establishment of a national registry of police misconduct; a ban on chokeholds and no-knock drug warrants; limitations on transfers of military equipment to police departments; increased police accountability; the required use of body cameras; duty to intervene; and limitations on qualified immunity.

Major groups like the Center for American Progress (CAP), NAACP, and the Leadership Conference on Civil and Human Rights support the legislation, but the ACLU has asked for an amendment that would fully abolish qualified immunity, which protects government officials, including law enforcement officers, from being held personally liable for violating constitutional rights. Some of the strongest criticism, however, has been levied against the bill for providing additional funding for law enforcement agencies as incentives and for overestimating the effectiveness of chokehold bans and body-worn cameras (BWCs). In fact, several studies found that BWCs are not as effective or impactful in reducing use of force as lawmakers would hope. Similarly, an NPR review found that chokehold bans across some of our nation’s largest police departments have been “largely ineffective and subject to lax enforcement.” At the time of Eric Garner’s death, chokeholds had been banned by the NYPD for more than two decades. How do we go beyond national bans to achieve real solutions for excessive force in police behavior? The BREATHE Act may provide that answer.

BREATHE Act of 2021

The BREATHE Act is a countermeasure to the Justice in Policing Act. Developed by the Movement for Black Lives, Gina Clayton-Johnson of the Essie Justice Group, Congresswoman Ayanna Pressley (D-MA 7), and Congresswoman Rashida Tlaib (D-MI 13), this bill is a behemoth piece of legislation that reenvisions our public safety apparatus. As the bill is still being drafted for introduction, the text is not yet available. Key provisions are expected to include: divestment of law enforcement funds into communities; elimination of certain federal programs and agencies, including the Department of Defense 1033 Program (whereby the military transfers its equipment to the police), Community Oriented Policing Services, the Drug Enforcement Administration, and Immigration and Customs Enforcement (ICE); and allocation of money to create and sustain healthy, equitable communities. It is important to note that M4BL calls for defunding the police as a platform issue and Essie Justice Group goes beyond defunding to call for the abolition of the prison system. These stances are very much reflected in the bill summary.

The BREATHE Act contains several outstanding provisions which would be key to a comprehensive and sustainable law enforcement reform. The elimination of surveillance tactics that are disproportionately used to target Black, Brown, and Muslim communities by prohibiting predictive policing, racial recognition technologies, drones, and similar tools is absolutely critical to achieving equitable policing and justice. It is also a key measure that would mitigate the double standards of U.S. counterterrorism efforts, an issue that MPAC is working closely on. Likewise, the bill’s emphasis on community-led public safety efforts, transformative justice, and healing justice programs can have a resounding impact on crime and punishment in America. Neighborhood mediation programs and other community-based intervention methods may actually be incredibly effective in preventing crimes. Communities are best versed in their own issues and can tailor their response to cater to the needs of their members. While certain segments of the BREATHE Act propose much-needed amendments to our current law enforcement infrastructure, as a whole, the legislation is far too sweeping. The packaging is simply wrong.

As a bill written by progressive organizations and two notably liberal members of Congress, the BREATHE Act suffers from a sharp partisan framework which will likely hurt its possibilities for success. “Decriminalizing and retroactively expunging drug offenses”, for example, risks exploitative interpretation and would allow for high-level drug trafficking to be treated in the same playing field as dealing marijuana, which is far less harmful or consequential as a drug. More conservative lawmakers may argue that abolishing mandatory minimum sentencing laws could leave serious offenders like violent white supremacists with little accountability for their crimes. Furthermore, Section 3, which calls for grants to promote educational and environmental justice, may be viewed as a Trojan horse for a hyper-progressive agenda. These points of contention, even with a narrow Democratic majority, draw caution from the center in a Congress where every vote counts.

All things considered, two major bills in the 117th Congress are attempting to meet the moment at hand. Both aim to address the need for systemic rehaul and the subsequent end of police brutality.The Justice in Policing Act, considered more likely to pass in Congress, is deemed more palatable, and doable, in our current political climate. According to Skopos Labs, H.R. 1280 has a 70% chance of being enacted. The BREATHE Act embodies smart provisions surrounded by partisan packaging that have many critics weary of its chances of success. Maybe the better solution combines the stronger provisions of the BREATHE Act within the frame of the George Floyd Act — a feat of political will that, in the 117th, seems like wishful thinking in an urgent and challenging time.

The Muslim Public Affairs Council improves public understanding and policies that impact American Muslims by engaging our government, media and communities.