U.S. Rep. Robin Kelly (D-2nd) has introduced the the State Attorneys General Empowerment Act to expand state attorneys' general power to investigate unconstitutional patterns and practices by law enforcement agencies within their states.
In an interview, Illinois Attorney General Kwame Raoul (D) welcomed the legislation, saying saying accountability discussions typically follow incidents like the murder of Laquan McDonald, the killing of Michael Brown in Ferguson, Missouri, or the beating of Rodney King, which touched off the 1992 Los Angeles riots.
"The thing is, we talk about those single cases, and sometimes people respond, 'Well, that was a bad cop, that was one bad apple.' And there's a failure to recognize systemic problems that may exist within a police department," he said. "Being able to do a deep dive through a patterns and practice investigation doesn't focus on a single case: it focuses on problems that have existed over time with a department."
"You're not going to prevent future incidents from happening by just dealing with Derek Chauvin," he continued, referring to the Minneapolis police officer who killed George Floyd, "or (Jason) Van Dyke in Chicago. You're not going to change the policies of those respective departments by just dealing with those individuals. There's often a tolerance, a covering-up ... that if not support, then allow for unconstitutional policing."
Kelly and Raoul served in the General Assembly together, and she called him after the Floyd protests to ask how she could help him and other attorneys general do their jobs in this moment of reckoning over race and policing in the United States.
"I didn't want general; I wanted a specific idea, and he gave me this specific idea," Kelly said. "We passed something in the HEROES Act that I thought included what the attorney general wanted me to include, but it was just money for attorneys general who already had the authority to investigate pattern and practice. But Illinois is one of the states that doesn't have the authority, and there must be a number of states that do not."
Raoul said he is asking Congress, not the state legislature, to act, because state attorneys general were given the initial authority to investigate law enforcement through the national 1994 crime bill. Federal courts have been more familiar with those investigations and resulting consent decrees, and he said pursuing such action federally removes such investigations from local political controversy.
"All that said, I think my office is also going to seek out some changes in state law as well, but I think the preferable venue to bring these matters for review are federal district courts," Raoul said.
Being able to do an investigation into the Chicago Police Department like former U.S. Attorney General Loretta Lynch did, which resulted in the consent decree with the department Raoul's office now oversees, would be a good thing.
The CPD has, however, missed around 70% of the reform deadlines the consent decree ordered; Raoul said he is discouraged but believes the process "will take as long as it has to take to make change."
"Some people perceived it as, 'Oh, we'll get through this real quick,'" he said. "We periodically do go into court. We did raise the issue on one of most recent court dates, and what I have said is that I understand that there's been three superintendents over the year and a half I've been attorney general, and there's been COVID. So I do understand that there's been circumstances that have led to challenges. Nonetheless, I believe we have to do better."
Congress is currently in the throes of negotiations for another round of coronavirus relief, but Kelly said there is a good chance the House of Representatives will vote on the State Attorneys General Empowerment Act, which is currently in the Judiciary Committee. Action on it in the Republican-controlled Senate, however, is questionable.
"Not to be political, but if all goes like we hope it goes, even if it doesn't pass now, there's a good chance it could pass in early 2021," she said. "But again, this is not a Democratic bill. There're Democratic attorneys general; there're Republican attorneys general; it gives all of them the authority if they need it."