Democrats won control of both houses of Congress in last night’s midterm elections. Criminal law and civil liberties are likely to be at the top of the legislative agenda once they take office in January. Here are issues they should prioritize—some in response to abuses committed by the Trump Administration, others as efforts to extend an olive branch to the executive branch and their Republican colleagues.
Flock surveillance reform: To begin with common ground, Congress should move swiftly to act on the public’s bipartisan and intense demand for thorough regulation of surveillance using automated license plate readers (ALPRs). Federal agents should not be able to access a person’s historical location data without a judicial warrant. Data transfer across agencies and to third parties should be strictly limited. Auditable documentation should record who accesses data and for what purposes. The law should require human beings to approve any actions that affect personal liberty—this role cannot be delegated to devices and AI systems. While Congress cannot directly dictate state laws on ALPRs, it should use its control over federal law enforcement grants to impose its own requirements on surveillance transparency, security, accountability, and privacy.
Demilitarizing law enforcement: Congress can immediately end funding for National Guard and Customs and Border Protection deployments for law enforcement within the interior of the country. It should ban the use of ethnic profiling in immigration enforcement. Neither of these measures is likely to attract Republican support, but restrictions on the transfer of surplus military equipment to law enforcement agencies might, especially if the GOP still recalls the Clinton Administration’s use of armored vehicles, explosives, and SWAT gear at Waco and in the Elian Gonzalez case.
Overcriminalization and federalism: Returning to the possibility of consensus, the Trump Administration is reclassifying marijuana out of Schedule I. Many Republicans believe marijuana is a federalism issue best left to the states. Congress could act swiftly to remove federal criminal prohibitions on marijuana and finally give cannabis-related businesses equal opportunities to access banking and credit cards, an effort that has stalled for years.
Civil forfeiture reform is another area where bipartisanship remains strong. Most Americans would be aghast to learn that Alaska is attempting to keep an octogenarian veteran’s $95,000 plane because one of his passengers carried a couple of cases of beer on board in violation of a dry-village law. Friends of federalism might be surprised to learn that after Nevada enacted state laws prohibiting law enforcement from retaining forfeited money and property, officers simply sent cases to federal prosecutors and received kickbacks. Congress can directly put an end to such “equitable sharing” and require criminal convictions for forfeiture cases brought directly by the federal government. It can use grant conditions to push states to end abusive civil forfeiture, too.
Should the Democrats be willing to change some of their own past positions, they could also revisit the scope of federal gun control. There is no justification for a lifetime ban on anyone convicted of any felony ever possessing a firearm or ammo again. Congress can limit the law to violent felonies. While this would advance the Second Amendment in ways Democrats may not otherwise endorse, it would also significantly reduce federal overcriminalization, together with burdens on the criminal legal system as a whole.
Remedies for abuse: Democrats won last night in part on Americans’ outrage over law enforcement abuses committed by the Trump Administration, from deadly shootings by immigration agents to all-out attacks on dissidents, including spying by military-grade drones. Yet many victims of government abuse stand no chance of receiving relief from the courts due to a slew of judge-invented immunity doctrines and other procedural barriers. Congress should start by codifying the Supreme Court’s Bivens decision (which the Court itself may otherwise abolish soon), guaranteeing that people whose rights are violated by federal agents can bring suit and receive damages. The broader the law doing so, the likelier it is to win bipartisan support: while Republicans are unlikely to back a measure targeting only, say, immigration operations, much of the public can sympathize with people like Curtrina Martin, whose house was ransacked by federal agents who went to the wrong address. The notion that where there’s a right, there’s a remedy is a better framing for reform than one reaching only to the most high-profile abuses of the moment.
Congress should also specify that officers serving on joint federal-state task forces are subject to suit for rights violations. The federal government routinely uses state and local law enforcement to carry out law enforcement and immigration operations, but this creates a liability loophole. In the recent case Mohamud v. Weyker, for example, a Minnesota police officer working on a joint human-trafficking task force concocted a non-existent criminal conspiracy and had innocent people jailed. But when one of the victims sought relief, the courts held that the officer could not be sued as a state officer because she was working on a federal task force—nor as a federal officer because she was employed by a state agency. Congress should close this gap.
Finally, Congress should think big and end noxious immunity doctrines. Qualified immunity shields state law enforcement from liability for violating people’s rights unless there is a previous case with extremely similar facts arising within the same jurisdiction. Absolute prosecutorial immunity insulates prosecutors from liability, even when they lie and hide evidence in death-penalty cases. Judicial immunity has made it hard to hold judges accountable, even for egregious behavior such as personally leading a search party through a party’s home during a hearing. Each of these doctrines can be abolished today through congressional action—and the possibility of government abuses arising from different corners should inspire bipartisan support for doing so.
The federal criminal legal system—and state systems subsidized by federal grants—are sprawling, intrusive, and unaccountable. The new Congress can do much to ensure it actually protects and serves Americans.