Which elected officials shape law enforcement policy?

In the first of our six part series on policing and democracy, we looked at the positions in law enforcement which are directly elected to office. In part two, we explain the other kinds of candidates you may find on your election ballot, and how those elected officials may shape law enforcement. 

We divide this section into three levels of government: municipal, state, and federal.

Key Takeaways

• Law enforcement and criminal justice is shaped more at the local and state level than at the federal level. The mayor of your city is one of the most important people you elect when it comes to setting the agenda for local law enforcement. 
• States are responsible for providing the majority of funding for criminal justice systems, including law enforcement, prosecution, and incarceration. Your vote can influence prison funding and policy through the election of your state governor and state legislators. 
• The President of the United States can shape policing essentially through two mechanisms: making key appointments (especially in the Department of Justice) and issuing executive orders.

Municipal Level 

Mayors

Your mayor is one of the most important people you elect when it comes to setting the agenda for law enforcement. As chief executive of the city, the mayor has a strong influence over police departments: they set the city’s policy priorities and approaches, hire and fire police chiefs (who run the department on a day-to-day basis), and oversee public employee contract negotiations, including that of the police union.  

Police contract negotiations typically happen every three to five years (whenever the previously negotiated contract expires), and present unique windows to make choices like decreasing the size of police forces or making adjustments to police privileges in contracts. This is not to say that such a process is easy, though – mayor-police union negotiations in the context of calls for criminal justice reform are often hard-fought and highly contentious.

Mayors also often decide who is allowed to serve on public safety boards tasked with determining whether there is cause to fire an officer, and decide who is appointed to independent review boards which investigate and prosecute police misconduct. Mayors also have the power to create or strengthen civilian review panels that provide oversight and generate new initiatives regarding police relations with local communities.

Mayors are also typically charged with developing city-wide budgets, where additional funding can be allocated to services and infrastructure like mental health services, harm reduction programs, shelters, and traffic-calming measures, which could help address issues that would otherwise be dealt with by law enforcement. 

How are mayors elected? 

The U.S. has several types of possible mayor systems, varying according to city size and municipality type. 

Most large cities in the U.S. have a “strong mayor” system, where the mayor serves as the specifically elected executive for the city, with the city council having legislative powers. The mayor serves full-time, oversees a wide range of city services, and appoints department heads. 

Smaller cities often have what is called a “weak mayor” system – the mayor still has the power to appoint the heads of departments, but is subject to more checks by city council. The council takes on relatively more executive duties. 

Medium-sized cities and rural or suburban municipalities typically have a council-manager form of government. The mayor is first among equals on an elected city council, and the city council and mayor set the legislative agenda and serve on a part-time basis. They appoint someone as a full-time professional city manager tasked with running day-to-day affairs and carrying out the legislative mandate of the council.    

In all of these scenarios, the mayor would be elected directly to the position, or in the case of council-manager governments, as a city councilor, during the city’s municipal elections. Municipal elections in the U.S. are typically held every four years, but the timing of the election varies from place to place. Unfortunately, despite the high level of influence these elections have over law enforcement, they often receive less attention than federal and state elections and usually have relatively low voter turnout.

State Level

The state level is often considered the most important and strategic level for implementing criminal justice reform in the US. As criminal justice scholar Laurie Robinson (2020) puts it: 

“In the USA, the most powerful political actor for police reform is the State Governor, followed by the State legislature. All 18,000 local police agencies are creatures of the state in which they are located. When it comes to regulating police agencies, the states are the best target because that is where the power is- the Constitutional power to create, and destroy, police agencies and to license, or revoke, the power of any individual to serve as a police officer.” 

This is not just true of policing but of prisons: the majority of the country’s incarcerated population—approximately 60 percent— are in state prisons.  States are responsible for providing the majority of funding for criminal justice systems, including law enforcement, prosecution, and incarceration. 

Your ballot features two key types of candidates who can shape legislation around policing and criminal justice in your state: Governor and State Legislators (Congress and Senate). 

Governors

A key way that governors influence the criminal justice system and policing is through their power of appointing powerful positions, such as judges, prosecutors, and those in charge of state police or highway patrol.

Governors can also use their executive powers to implement criminal justice reforms. They can issue executive orders that prohibit the use of private prisons or that require the collection of data on the racial and ethnic makeup of arrests and the prison population, as well as on officer decertifications, and ensure data transparency in law enforcement agencies within and across states. Executive orders can also be used to create or empower civilian oversight and review boards, and even to prohibit police practices like chokeholds. 

Governors have significant control over their state’s budget and can use this power to allocate resources towards criminal justice reform initiatives. For example, they can invest in programs that aim to reduce the prison population, such as alternatives to incarceration or rehabilitation services, and they may be able to use the line item veto power, for budget proposals would lead to prison population growth.

While Governors have many levers they can pull to influence policing and criminal justice, some scholars have argued that they are not fully using them: For example, in an article proposing innovative possibilities for ways that reform-minded governors could implement policing reforms, criminologist Lawrence Sherman (2020) suggested that every state in the U.S. has the legal right to, and could establish “an Inspector-General of policing” which would have the power to decertify and implement state takeovers of police departments which refused to adopt best standards for policing that sought to minimize harm.  

For more information on what sorts of policing and criminal justice reforms have been implemented specifically by governors in recent years, see this report by the National Governors’ Association. 

State Legislators (House and Senate)

As the main policy makers at the state level of government, which most shapes policing and criminal justice policy, state legislators have a massive ability to influence the face of policing in the U.S. 

State legislatures can pass new laws to address specific concerns and promote better policing practices, such as mandating the use of body cameras and de-escalation trainings, changing the standard for use of deadly force (Thompson 2019, National Conference of State Legislatures 2018), establishing independent review boards (Subramaniam and Skrzypiec 2017), and making it easier to prosecute police use of deadly force. 

Some of these initiatives have been taken up by legislatures more avidly in recent years as awareness about police brutality has been on the rise. For example, after Ferguson, twenty-seven state legislatures passed laws mandating law enforcement training on interaction with individuals suffering from mental illness. 

Despite the important role they play in law enforcement, elections for state legislators have lower turnout than statewide and national elections and many voters do not even know who their state representatives are, let alone their positions on law enforcement or any other issue. State legislators are also much less likely to face challengers, often running unopposed.

Federal Level

While the state and municipal levels of elected officials undoubtedly have the most direct influence over policing and criminal justice, federal level officials also can shape many parts of the process. 

Congress and the Senate

Your representatives in Congress and the Senate can shape the face of policing through their ability to influence appointments, make federal budgeting decisions, and conduct investigations on criminal justice issues. 

First, when the President of the United States makes many key appointments within the criminal justice system, it is typically done with the advice and consent of the Senate, who can have a large influence on the process.

Second, elements of reform can be implemented as part of budgetary measures. For example, the House and Senate provide over $2 billion annually for the Department of Justice (DOJ)’s discretionary grants program, which is the primary vehicle by which the federal government makes funds available to state and municipal law enforcement. These funds could be targeted towards goals like mental health and substance use treatment instead of prison, or indigent defense (providing representation for those who cannot afford private representation in court). They could provide further financial incentives to states to reduce their levels of incarceration through initiatives such as the Reverse Mass Incarceration Act. 

Outside of budgetary measures, federal lawmakers could legislate strict federal limits on use of lethal and non-lethal force, and support expansive drug law reform to further reduce the scope of policing. 

Lastly, Congress has the power to conduct investigations and hold hearings on criminal justice issues. Shining a light on problems within the system can help to build public support for reform and hold officials accountable.

POTUS

The President of the United States can shape policing essentially through two mechanisms: making key appointments and issuing executive orders. 

The most key appointments the President makes in this regard are those at the DOJ. The DOJ can hold “pattern-or-practice” investigations to uncover systemic problematic behavior by police departments around the country, and can support community-led public safety strategies that are an alternative to policing.  

The DOJ also plays an important role as a leader in research and policy innovation in policing, and can promulgate new standards and initiatives that get taken up at the state and municipal levels. This is alongside other Presidentially-staffed federal agencies tasked with collecting, analyzing, and sharing data like the the Bureau of Justice Statistics, the Bureau of Justice Assistance, and the Federal Bureau of Investigation (Robinson 2020). 

In addition to these key appointments, the President can issue executive orders to direct the Department of Justice to prioritize certain issues, provide funding for rehabilitation and reentry programs, and reduce mandatory minimum sentences, and set standards for law enforcement agents who operate at the federal level. For example, in June 2022, President Biden released an executive order which set new standards for law enforcement data collection, revised use-of-force measures for federal agencies, and limited the use of no-knock entries for federal agents.

How Does Law Enforcement Shape Democracy? 

In the first two parts of our three-part series, we explained how you can wield democracy to shape policing in the U.S. In the next part of our series, we look at the largest expansion of US democracy in its history, and the effect it had on law enforcement, policing, and mass incarceration in the U.S. 

Summary prepared by Ella Wind, PhD.