In 2021, Qualified Immunity Reform Died a Slow, Painful Death

Many people saw 2021 as the ending of a bad era and beginning of something better. The end of an era was not what it represented. Any year. It was the beginning of 2020.

The supposed promise of criminal reform was also tied up, following a summer in which qualified immunity went from being a legal principle that few understood to one that is easily understood by many. In the 12 months since then, there have been some efforts by politicians to promote criminal justice reform. As with many of the New Year’s resolutions, however, a lot remained the same.

The stagnation was despite the bipartisan momentum that drove Republicans and Democrats to reform in 2021. This happened after Breonna Taylor’s and George Floyd’s police murders fueled national conversations about accountability for law-enforcement.

The central issue in that discussion was qualified immunity. That principle, which the Supreme Court conjured up to life in the Supreme Court’s creation of the Supreme Court allows certain government officials to violate your right without fear of civil suits if their actions have not been clearly established in any court precedent. For example, it’s how two officers were allowed to allegedly steal $225,000 during the execution of a search warrant. This was without any explanation to civil courts. According to the U.S. Court of Appeals 9th Circuit, theft is not right. However, a court ruling can be made that applies specifically to these circumstances. Really Are you expecting government officials to follow this moral principle?

Most would answer yes. Sens. Cory Booker (D–N.J.) and Tim Scott (R–S.C.), flanked by Rep. Karen Bass (D–Calif.They appeared to be optimistic that the George Floyd Justice in Policing Act would be passed with restrictions on qualified immunity throughout the year. Federally, it would have prohibited chokeholds, carotid holdings, and warrants of arrest for drug investigation. At state levels, it would have incentivized similar actions by linking federal funding to these measures. Further, it would have created a national database to track police misconduct—local departments are typically very opaque with such data—and it would have constrained the amount of military equipment passed down to departments across the country, among other provisions.

But the qualified immunity portion would prove to be the most difficult bridge to build, as the May 25, 2021, deadline to pass the Justice in Policing Actimposed by President Joe Biden—came and went. Scott, who led Republican negotiations for the Senate, originally proposed a compromise where victims of police abuse would be able to sue departments instead of individual police officers. Some Democrats opposed it, questioning whether this would allow for any accountability. Scott was said to have distanced from the provision after discussing it with members in law enforcement.

Following months of negotiations, the deal—in its entirety—was pronounced dead in September.

Cynthia Roseberry is the deputy director for the Justice Division of the American Civil Liberties Union. She says, “We began the year thinking about George Floyd.” Then, policing reform disappeared. Even today, qualified immunity continues to exist.”

It is likely to remain there for quite some time. Roseberry points out that there are still pieces of legislation that remain stalled on criminal legal reform. Roseberry notes that the EQUAL Act would provide relief for inmates sentenced to more severe prison sentences because they used crack cocaine instead of powder cocaine. The MORE Act would also end federal prohibition. Finally, the First Step Implementation Act would retroactively implement sentencing reforms to those who were sentenced prior to the 2018 First Step Act.

Kevin Ring of Families Against Mandatory Minimums says that even though there have been some success stories in criminal justice reform, they are still not widely known. “California repealed its drug mandatory minimums, Maryland got rid of juvenile life without parole….There were still places where you could see progress and reforms move forward.” He also mentions that, while the EQUAL Act is yet to pass the Senate, it passed the House of Representatives with 361 votes, even from conservative hardliners Jim Jordan (R–Ohio) and Kevin McCarthy (R–Calif.).

Roseberry believes that Congress has the largest bargaining power, but she wants to hear at least one thing about Biden. She says “He must use clemency today and often.” Reason. “If the sentence doesn’t make sense at Christmastime or the end of his term it is inappropriate.”

As they leave the Oval Office, presidents often invoke their clemency powers. Another related announcement was made last week by the Department of Justice. It announced that thousands of COVID-19 prisoners, who had been in their homes during the pandemic, will now be free to continue with their sentences. Ring says, “This was not a measure of self-harm.” “These people were already sent home….This was consolidating something that had already happened.”

This doesn’t mean that the 2,800 prison inmates are free. All of them will be held to a strict surveillance program and could face a one-way ticket into a cell for every mistake. Gwen Levi was one such case. The 76-year old woman was serving 16 years of her sentence for selling heroin. Jeffrey Martinovich was also fated after he failed to answer his cellphone during one nightly check in, even though his GPS showed that he was there as requested.

Of the thousands of inmates impacted by the recent decision, Ring adds that “it’s clear these people shouldn’t go back….I just want to make sure we find a way to avoid them getting violated over stupid little infractions…because the consequences are so great for these people. They wouldn’t go back for more than two months. They would return for five years.”

Levi will be able to enjoy the Justice Department memo’s benefits; in July, she was freed again following a nationwide outrage. Martinovich, a white-collar criminal convicted in 2013, will continue to call Beckley Federal Correctional Institution home until August 25, 20,25.

Even though there are some policy victories in 2021 the victims of misconduct by government officials will need to continue waiting for accountability reform. While rules and regulations may be changed, it doesn’t matter if the state agents are not held responsible for violating those guidelines. As never before, public opinion took a hard turn against qualified immunity—a doctrine that sends a message to government agents that they are above the laws they enforce. The energy flowing into 2021 was not enough to propel Congress.