1
00:00:15,356 --> 00:00:23,916
Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show

2
00:00:23,956 --> 00:00:27,236
Speaker 1: where we explore the stories behind the stories in the news.

3
00:00:27,796 --> 00:00:31,476
Speaker 1: I'm Noah Feldman. The death of George Floyd set off

4
00:00:31,516 --> 00:00:37,756
Speaker 1: demonstrations across the country calling for fundamental reforms of policing.

5
00:00:38,676 --> 00:00:42,636
Speaker 1: Since then, activists and politicians are trying to give substance

6
00:00:42,836 --> 00:00:46,956
Speaker 1: to the idea of change and reform. Democratic members of

7
00:00:46,956 --> 00:00:49,836
Speaker 1: the House of Representatives are in the process of proposing

8
00:00:50,156 --> 00:00:54,516
Speaker 1: reform legislation. Meanwhile, local officials are calling for different sets

9
00:00:54,556 --> 00:00:58,796
Speaker 1: or reforms, including in some cases, the dismantling or defunding

10
00:00:59,076 --> 00:01:02,596
Speaker 1: of the police. To discuss both what needs to be

11
00:01:02,756 --> 00:01:07,596
Speaker 1: done to address police brutality and the capacity of reform,

12
00:01:07,796 --> 00:01:11,636
Speaker 1: more generally, to make meaningful change, I'm joined by Paul Butler.

13
00:01:12,356 --> 00:01:15,396
Speaker 1: Paul as a professor at the Georgetown University Law Center.

14
00:01:15,836 --> 00:01:18,556
Speaker 1: He's a former federal prosecutor and the author of the

15
00:01:18,676 --> 00:01:23,396
Speaker 1: extraordinary book Chokehold Policing Black Man. He's also one of

16
00:01:23,396 --> 00:01:26,156
Speaker 1: the leading scholars in the United States working on the

17
00:01:26,236 --> 00:01:34,436
Speaker 1: confluence of policing, criminal law, and race. Paul, thank you

18
00:01:34,516 --> 00:01:37,316
Speaker 1: so much for joining me. Let me start by asking

19
00:01:37,356 --> 00:01:40,356
Speaker 1: you you're in DC, where you teach and live. Have

20
00:01:40,436 --> 00:01:42,956
Speaker 1: you been out in the protests? I had to go

21
00:01:43,636 --> 00:01:51,316
Speaker 1: on Saturday. I joined multicultural, multi generational, huge group of

22
00:01:51,316 --> 00:01:56,156
Speaker 1: people as close to the White House as the Coward

23
00:01:56,196 --> 00:01:59,116
Speaker 1: in Chief would allow us to get. What was so

24
00:01:59,396 --> 00:02:06,116
Speaker 1: moving was the spirit of the crowd. People are fed up.

25
00:02:06,556 --> 00:02:10,756
Speaker 1: I'm hoping that this is different, this is the movement

26
00:02:10,876 --> 00:02:15,596
Speaker 1: and not the moment. But unfortunately I've had that hope

27
00:02:15,796 --> 00:02:19,836
Speaker 1: before and been disappointed. You and other people of our

28
00:02:19,876 --> 00:02:24,036
Speaker 1: generation remember the la riots, and then we remember Ferguson

29
00:02:24,356 --> 00:02:27,276
Speaker 1: and then lots of other specific events, Eric Garner's death,

30
00:02:27,316 --> 00:02:29,716
Speaker 1: of course, which is one of the things that inspired

31
00:02:29,716 --> 00:02:34,516
Speaker 1: your book with the prescient and terrifying titled Chokehold. Do

32
00:02:34,556 --> 00:02:36,676
Speaker 1: you think, in fact that the feeling that a lot

33
00:02:36,716 --> 00:02:38,836
Speaker 1: of people have right now that this time is different

34
00:02:38,836 --> 00:02:43,596
Speaker 1: with respect to reform is probable? I think you posed

35
00:02:43,636 --> 00:02:48,156
Speaker 1: the question perfectly. I think the feeling that people have

36
00:02:49,156 --> 00:02:54,196
Speaker 1: is different in the sense that many people now understand

37
00:02:54,276 --> 00:02:59,876
Speaker 1: the scale of the problem. This week, we've seen countless

38
00:02:59,956 --> 00:03:08,036
Speaker 1: acts of police brutality. When they're policing marches to protest brutality,

39
00:03:08,076 --> 00:03:11,836
Speaker 1: it's almost like they can't help themselves. So I think

40
00:03:11,876 --> 00:03:18,596
Speaker 1: that now people get people understand, but what folks may

41
00:03:18,716 --> 00:03:23,196
Speaker 1: not understand as well as they do the problem, the

42
00:03:23,396 --> 00:03:30,076
Speaker 1: barriers to challenging, the barriers to transformation. What do you

43
00:03:30,116 --> 00:03:35,556
Speaker 1: see as the greatest barriers to transformation? Starting with the

44
00:03:35,596 --> 00:03:38,196
Speaker 1: reforms that I would say are kind of concrete reforms

45
00:03:38,316 --> 00:03:43,476
Speaker 1: anti brutality reforms, reorganization of police departments. Will come later

46
00:03:43,516 --> 00:03:46,436
Speaker 1: to the more grand reform suggestions that some people are

47
00:03:46,476 --> 00:03:49,036
Speaker 1: making about defunding and abolishing. But starting with the ones

48
00:03:49,076 --> 00:03:51,236
Speaker 1: that I might call the kind of the more low

49
00:03:51,236 --> 00:03:53,956
Speaker 1: hanging fruit, what are the primary barriers to those going

50
00:03:53,996 --> 00:03:58,676
Speaker 1: into effect. Well, one of the biggest is unions and

51
00:03:58,836 --> 00:04:06,516
Speaker 1: other organizations that represent police that consistently resist change, even

52
00:04:06,596 --> 00:04:13,396
Speaker 1: common sense reform. Percent of the police officers in Minneapolis

53
00:04:13,636 --> 00:04:18,236
Speaker 1: live in the city, just seven percent. We know that

54
00:04:18,356 --> 00:04:23,836
Speaker 1: when law enforcement officers are neighbors in the communities that

55
00:04:23,916 --> 00:04:28,836
Speaker 1: they serve and protect, they're more invested in those communities,

56
00:04:28,956 --> 00:04:34,396
Speaker 1: they're more accountable, and unfortunately that low number seven percent

57
00:04:35,196 --> 00:04:40,916
Speaker 1: is consistent with the low numbers in many urban police departments.

58
00:04:41,836 --> 00:04:44,236
Speaker 1: How do cops get away with this? They get away

59
00:04:44,276 --> 00:04:50,396
Speaker 1: with it because of their powerful collective bargaining organizations and

60
00:04:50,556 --> 00:04:55,756
Speaker 1: other groups that represent them. It's not just with residency requirements.

61
00:04:56,076 --> 00:05:03,036
Speaker 1: Virtually every proposal for reform gets squelched by these all

62
00:05:03,076 --> 00:05:08,276
Speaker 1: powerful organizations. What are some other barriers to reform? The

63
00:05:08,276 --> 00:05:11,796
Speaker 1: Democrats probably won't get adopted under the Trump administration, but

64
00:05:11,836 --> 00:05:15,836
Speaker 1: they propose fairly comprehensive reforms coming from the federal level

65
00:05:16,556 --> 00:05:19,476
Speaker 1: that the unions couldn't technically block, although the unions will

66
00:05:19,516 --> 00:05:22,836
Speaker 1: probably oppose them. What are the other barriers that are

67
00:05:22,836 --> 00:05:27,036
Speaker 1: out there? One of the barriers, well, let's not say

68
00:05:27,076 --> 00:05:31,716
Speaker 1: one of the barriers, let's say eighteen thousand of the barriers.

69
00:05:32,076 --> 00:05:36,916
Speaker 1: So they're eighteen thousand different police departments in the United States,

70
00:05:37,516 --> 00:05:42,596
Speaker 1: and they're eighteen thousand different ways of policing. I'm going

71
00:05:42,636 --> 00:05:47,636
Speaker 1: to be testifying at the House Judiciary Committee hearing on

72
00:05:47,876 --> 00:05:54,436
Speaker 1: this bill, and one of the issues is how Congress

73
00:05:54,596 --> 00:06:01,956
Speaker 1: can use its authority to help these local police departments

74
00:06:02,276 --> 00:06:06,956
Speaker 1: serve and protect their citizens more effectively. It turns out

75
00:06:07,036 --> 00:06:11,756
Speaker 1: that while Congress has the power of the purse, it

76
00:06:11,836 --> 00:06:17,676
Speaker 1: doesn't have a lot of direct authority over departments other

77
00:06:17,756 --> 00:06:24,556
Speaker 1: than by allocating funds or withholding funds. If these departments

78
00:06:24,596 --> 00:06:29,316
Speaker 1: refused to be accountable and transparent. You know, it's this

79
00:06:29,476 --> 00:06:35,836
Speaker 1: kind of traditional tension between local control and civil rights

80
00:06:35,836 --> 00:06:40,356
Speaker 1: and human rights for people of color. What will the

81
00:06:40,396 --> 00:06:42,316
Speaker 1: main thrust of your testimony be. I mean, the fact

82
00:06:42,356 --> 00:06:45,476
Speaker 1: you're testifying suggests that you're at least broadly in support

83
00:06:45,516 --> 00:06:49,476
Speaker 1: of the proposals. Well, I'm there to talk about what

84
00:06:49,636 --> 00:06:54,756
Speaker 1: I've learned in twenty five years of thinking about these issues,

85
00:06:55,076 --> 00:06:58,876
Speaker 1: and during some of that time working as a prosecutor.

86
00:06:59,316 --> 00:07:03,636
Speaker 1: So as a prosecutor, one of my specialties was corrupt

87
00:07:03,796 --> 00:07:08,356
Speaker 1: law enforcement officers. And when I look at what happens

88
00:07:08,396 --> 00:07:13,356
Speaker 1: when police officers are charged with crimes, most times those

89
00:07:13,356 --> 00:07:18,756
Speaker 1: officers are not convicted. So in the last fifteen or

90
00:07:18,796 --> 00:07:21,876
Speaker 1: twenty years, there have been roughly one hundred cops who've

91
00:07:21,916 --> 00:07:26,836
Speaker 1: been charged with murder. The majority of those officers walked,

92
00:07:27,276 --> 00:07:30,916
Speaker 1: the charges were dismissed, or they were found not guilty.

93
00:07:31,876 --> 00:07:37,236
Speaker 1: Maybe a quarter of those officers who were found guilty

94
00:07:37,396 --> 00:07:44,276
Speaker 1: of lesser included offenses like manslaughter or negligent homicide. So

95
00:07:44,596 --> 00:07:51,196
Speaker 1: roughly a hundred officers charged with homicide, roughly seven convicted

96
00:07:51,436 --> 00:07:55,996
Speaker 1: of murder. We know that US cops kill about one

97
00:07:56,076 --> 00:08:00,596
Speaker 1: thousand people a year. I say we know, really, I

98
00:08:00,636 --> 00:08:04,276
Speaker 1: should say, we think we estimate. One of the things

99
00:08:04,276 --> 00:08:08,156
Speaker 1: that this bill would do would be to require the

100
00:08:08,236 --> 00:08:14,516
Speaker 1: federal to maintain accurate data about police use of force.

101
00:08:15,156 --> 00:08:18,716
Speaker 1: The FBI has been supposed to do that for the

102
00:08:18,836 --> 00:08:23,516
Speaker 1: last five years, but unfortunately they just have it. And

103
00:08:23,596 --> 00:08:27,916
Speaker 1: so if this bill is passed, getting accurate data on

104
00:08:28,356 --> 00:08:33,276
Speaker 1: stop and frisks on police use of force would go

105
00:08:33,356 --> 00:08:37,516
Speaker 1: a long way in helping explain the scope of the

106
00:08:37,676 --> 00:08:41,396
Speaker 1: problem and letting us take a closer look at the

107
00:08:41,756 --> 00:08:46,276
Speaker 1: race dispurities that we know are there. Paul, One of

108
00:08:46,276 --> 00:08:48,836
Speaker 1: the things that's been happening in the last you know,

109
00:08:49,036 --> 00:08:53,676
Speaker 1: ten days or so, is that the protests have begun

110
00:08:53,716 --> 00:08:57,996
Speaker 1: to include not just calls to stop killing black people,

111
00:08:58,836 --> 00:09:04,916
Speaker 1: but also a policy recommendation or demand to defund, abolish,

112
00:09:05,156 --> 00:09:09,356
Speaker 1: or dismantle police departments. Please give me your reaction to

113
00:09:09,516 --> 00:09:17,316
Speaker 1: that development. When people talk about defunding police departments, there's

114
00:09:17,436 --> 00:09:23,036
Speaker 1: not a consensus now and exactly what they mean, what

115
00:09:23,276 --> 00:09:27,476
Speaker 1: I think of what the concern is. Remember that when

116
00:09:27,676 --> 00:09:36,156
Speaker 1: people call nine one one, often having someone respond with

117
00:09:36,196 --> 00:09:40,836
Speaker 1: a gun and the power to arrest makes things worse,

118
00:09:41,476 --> 00:09:45,916
Speaker 1: not better. Sometimes people call nine one one when they're

119
00:09:46,596 --> 00:09:51,676
Speaker 1: experiencing a mental health crisis, a breakdown in a relationship,

120
00:09:52,436 --> 00:09:58,796
Speaker 1: a family problem, or a medical problem, and the men

121
00:09:58,876 --> 00:10:03,156
Speaker 1: and women in blue with guns in those instances aren't

122
00:10:03,196 --> 00:10:08,076
Speaker 1: the most effective first responders. So what I think this

123
00:10:08,836 --> 00:10:14,396
Speaker 1: I idea of reinvesting some of the money that goes

124
00:10:14,436 --> 00:10:22,756
Speaker 1: to the police in community services, in healthcare, in schools.

125
00:10:23,396 --> 00:10:28,836
Speaker 1: I think that that's a more holistic way of keeping

126
00:10:29,276 --> 00:10:34,396
Speaker 1: communities safe. So the people I know who are enthusiastic

127
00:10:34,556 --> 00:10:41,756
Speaker 1: about defunding police departments understand that public safety has got

128
00:10:41,756 --> 00:10:46,476
Speaker 1: to be paramount. But what they also understand is they

129
00:10:46,556 --> 00:10:53,636
Speaker 1: are more effective ways of keeping families whole and neighborhoods

130
00:10:53,636 --> 00:11:00,356
Speaker 1: secure than our current approach. And ironically, when I talk

131
00:11:00,436 --> 00:11:04,996
Speaker 1: to the range of my friends who are in different

132
00:11:05,516 --> 00:11:09,396
Speaker 1: areas of the workforce in the criminal legal process, some

133
00:11:09,436 --> 00:11:13,876
Speaker 1: of the people who most agree with the concerns that

134
00:11:13,916 --> 00:11:18,876
Speaker 1: the protesters are expressing our cops police officers are the

135
00:11:18,916 --> 00:11:24,196
Speaker 1: first to say, people call us for a whole range

136
00:11:24,396 --> 00:11:30,396
Speaker 1: of problems that we're not equipped to address. So I

137
00:11:30,436 --> 00:11:34,476
Speaker 1: think a lot of author steers well, they might have

138
00:11:34,556 --> 00:11:38,116
Speaker 1: legitimate concerns about what it means to die vest from

139
00:11:38,796 --> 00:11:43,836
Speaker 1: the departments that are paying their salaries. I think that

140
00:11:44,556 --> 00:11:50,276
Speaker 1: they will embrace the hope that there's a broader range

141
00:11:50,556 --> 00:11:55,676
Speaker 1: of services from the state when people are in danger

142
00:11:56,716 --> 00:12:00,556
Speaker 1: than just during somebody under the jail. Do you have

143
00:12:00,596 --> 00:12:05,676
Speaker 1: any concern that the rhetoric of dismantle or abolish plays

144
00:12:05,716 --> 00:12:09,076
Speaker 1: into the hands of Donald Trump, who can then treat

145
00:12:09,196 --> 00:12:11,756
Speaker 1: out and say again and again in his run for office,

146
00:12:12,036 --> 00:12:15,356
Speaker 1: of course, we can't abolish or dismantle the police, and

147
00:12:15,476 --> 00:12:18,516
Speaker 1: the Democrats are behind that. He can say that falsely

148
00:12:19,196 --> 00:12:22,436
Speaker 1: and use that to try to win over middle of

149
00:12:22,476 --> 00:12:25,276
Speaker 1: the road voters who otherwise seem to be very fed

150
00:12:25,356 --> 00:12:28,076
Speaker 1: up with Donald Trump according to the polls, but who

151
00:12:28,076 --> 00:12:31,916
Speaker 1: are of course crucially important to the election in November.

152
00:12:32,636 --> 00:12:37,516
Speaker 1: I'm certain that the President and some other Republicans will

153
00:12:38,156 --> 00:12:44,956
Speaker 1: look at some of the demands from this nationwide movement

154
00:12:45,556 --> 00:12:52,076
Speaker 1: against police brutality and highlight some of those demands to

155
00:12:52,276 --> 00:12:59,916
Speaker 1: suggest that they're extreme or anti cop. That's not new.

156
00:13:00,556 --> 00:13:06,956
Speaker 1: For the last fifty years, almost every presidential candidate has

157
00:13:07,076 --> 00:13:15,636
Speaker 1: exploited anxiety about law and order. The subtext is anxiety

158
00:13:15,636 --> 00:13:21,596
Speaker 1: about African American men and Latino men, and sometimes that's

159
00:13:21,636 --> 00:13:26,636
Speaker 1: actually the text not the subtext. So the fact that

160
00:13:26,676 --> 00:13:33,516
Speaker 1: the president will make some of the demands political and

161
00:13:33,676 --> 00:13:39,196
Speaker 1: a campaign issue is to be expected. We know that

162
00:13:39,476 --> 00:13:45,516
Speaker 1: Donald Trump has already won the white foe statistically, most

163
00:13:45,516 --> 00:13:49,956
Speaker 1: white people are going to vote for him. That's been

164
00:13:49,996 --> 00:13:55,196
Speaker 1: true of every Republican candidate since the election of JFK.

165
00:13:56,276 --> 00:14:00,916
Speaker 1: And so rather than worry about kind of the white

166
00:14:00,956 --> 00:14:05,196
Speaker 1: body politic as a whole, we're I'm focused is that

167
00:14:06,156 --> 00:14:10,556
Speaker 1: forty three forty four percent that the Democratic candidate has

168
00:14:10,636 --> 00:14:14,276
Speaker 1: to get in order to win. And when I look

169
00:14:14,316 --> 00:14:19,076
Speaker 1: at who's marching. Oh, one of my African American buddies

170
00:14:19,156 --> 00:14:22,876
Speaker 1: said to me, almost as a critique, that he'd driven

171
00:14:22,956 --> 00:14:25,996
Speaker 1: by one of the protest rallies in DC and most

172
00:14:26,076 --> 00:14:29,796
Speaker 1: of the people he saw, most of the protesters were white.

173
00:14:30,196 --> 00:14:33,836
Speaker 1: I think that's a really good thing. I think that

174
00:14:34,076 --> 00:14:39,076
Speaker 1: now we're assembling on this issue the kind of broad

175
00:14:39,156 --> 00:14:44,516
Speaker 1: based coalition that we need to create change. And so,

176
00:14:44,756 --> 00:14:47,756
Speaker 1: just like in the civil rights movement in the nineteen sixties,

177
00:14:47,796 --> 00:14:51,196
Speaker 1: when a lot of people from the faith community, a

178
00:14:51,196 --> 00:14:55,636
Speaker 1: lot of people from labor unions, a lot of people

179
00:14:55,796 --> 00:15:00,316
Speaker 1: who were in allied movements like the Women's movement, the

180
00:15:00,476 --> 00:15:04,596
Speaker 1: LGBT movement came out. I think we're seeing that now,

181
00:15:04,876 --> 00:15:08,076
Speaker 1: so that fifty three fifty four percent of white folks

182
00:15:08,076 --> 00:15:13,716
Speaker 1: who just don't get it, or who aren't concerned, or

183
00:15:13,756 --> 00:15:20,196
Speaker 1: who think that basically the victims of police violence deserve

184
00:15:20,276 --> 00:15:22,356
Speaker 1: what they get. No, we're not going to reach them,

185
00:15:23,076 --> 00:15:27,036
Speaker 1: but I think that there are many other people of

186
00:15:27,196 --> 00:15:32,356
Speaker 1: good will who will rise to this occasion. We'll be

187
00:15:32,436 --> 00:15:44,916
Speaker 1: right back. There's a lot of talk among white liberals

188
00:15:45,036 --> 00:15:47,956
Speaker 1: about what the right way is to show support for

189
00:15:48,116 --> 00:15:52,796
Speaker 1: Black Lives Matter, showing respect for the leadership that BLM

190
00:15:52,876 --> 00:15:56,876
Speaker 1: has taken and respect for African American voices while simultaneously

191
00:15:56,916 --> 00:16:01,596
Speaker 1: expressing support and connection. Do you have a view on

192
00:16:01,636 --> 00:16:06,116
Speaker 1: what the right approaches in that subtle balance for white

193
00:16:06,156 --> 00:16:10,196
Speaker 1: people who are supportive of BLM. I have a bunch

194
00:16:10,236 --> 00:16:14,396
Speaker 1: of ideas. So in my book Choco Policing Black Men,

195
00:16:14,556 --> 00:16:19,796
Speaker 1: I suggest arrange of things that folks can do. So

196
00:16:20,196 --> 00:16:24,996
Speaker 1: it can be as simple as contributing to a bail fund.

197
00:16:25,756 --> 00:16:30,276
Speaker 1: It could be coming out and joining a march. I

198
00:16:30,396 --> 00:16:35,636
Speaker 1: have a bunch of students who are future lawyers, and

199
00:16:35,836 --> 00:16:43,516
Speaker 1: have this future lawyer uneasy mix of wokeness and professional ambition,

200
00:16:44,116 --> 00:16:49,436
Speaker 1: who ask should I go to a protest? And I

201
00:16:49,636 --> 00:16:54,436
Speaker 1: unfortunately told one student yes, about the protests in Lafayette

202
00:16:54,516 --> 00:16:56,556
Speaker 1: Square or last Monday, I told her, as long as

203
00:16:56,596 --> 00:16:59,596
Speaker 1: you followed the rules and left before the curfew should

204
00:16:59,676 --> 00:17:02,476
Speaker 1: be fine. As the whole world knows. That turned out

205
00:17:02,556 --> 00:17:07,676
Speaker 1: not to be true. But I do think that showing

206
00:17:07,756 --> 00:17:11,316
Speaker 1: up that makes a difference, and particularly for people who

207
00:17:11,436 --> 00:17:14,996
Speaker 1: aren't of color, and for people who aren't black, to

208
00:17:15,156 --> 00:17:17,436
Speaker 1: show that you understand that this is one of the

209
00:17:17,476 --> 00:17:20,556
Speaker 1: most important human rights movements and civil rights movements of

210
00:17:20,636 --> 00:17:25,956
Speaker 1: our time, that makes a huge difference. And that same

211
00:17:25,996 --> 00:17:31,276
Speaker 1: section in my book have a subsection called for run

212
00:17:31,356 --> 00:17:39,996
Speaker 1: alway Slaves only, and that is about this this question.

213
00:17:40,076 --> 00:17:43,516
Speaker 1: I asked myself sometime like back in the day, what

214
00:17:43,556 --> 00:17:47,156
Speaker 1: would I have done during slavery? I hope that I

215
00:17:47,316 --> 00:17:50,636
Speaker 1: would have been a run away slave or been one

216
00:17:50,716 --> 00:17:55,396
Speaker 1: of the enslave people who led an uprising. Reality is

217
00:17:55,436 --> 00:17:58,876
Speaker 1: that most people, including most enslaved people, didn't do that.

218
00:17:59,516 --> 00:18:03,076
Speaker 1: And then during the civil rights movement, I hope that

219
00:18:03,156 --> 00:18:07,436
Speaker 1: I would have marched with Martin or ticket to the

220
00:18:07,476 --> 00:18:11,276
Speaker 1: streets with Malcolm. And the reality is most folks, including

221
00:18:11,396 --> 00:18:14,356
Speaker 1: most African American people didn't do that, and the movement

222
00:18:14,396 --> 00:18:18,076
Speaker 1: for Black lives. The question is, if you want to

223
00:18:18,116 --> 00:18:21,036
Speaker 1: know what you would have done back in the day,

224
00:18:21,996 --> 00:18:25,916
Speaker 1: ask yourself, what are you doing right now? And so

225
00:18:25,956 --> 00:18:30,716
Speaker 1: I think that's a question that we all need to

226
00:18:30,876 --> 00:18:34,476
Speaker 1: ask ourselves, know in terms of the work that we do.

227
00:18:34,636 --> 00:18:39,396
Speaker 1: Sometimes I wonder, like the day after Kamatsu was decided, well,

228
00:18:39,436 --> 00:18:44,076
Speaker 1: what was the conversation like in the Georgetown Law faculty

229
00:18:44,236 --> 00:18:49,476
Speaker 1: lounge where the Harvard Law School faculty dining room. So

230
00:18:49,636 --> 00:18:52,636
Speaker 1: I think we all want to rise to this occasion.

231
00:18:52,676 --> 00:18:55,756
Speaker 1: We all want to want to meet this moment, you know,

232
00:18:55,836 --> 00:19:00,436
Speaker 1: subject to our own kind of personal capacity. And so

233
00:19:00,676 --> 00:19:03,996
Speaker 1: for runaway slaves in this context, again you could talk

234
00:19:04,036 --> 00:19:12,356
Speaker 1: about abolition. You can practice civil disobedience, you can you know,

235
00:19:12,516 --> 00:19:18,716
Speaker 1: be a leader in the transformation that we need. I

236
00:19:18,756 --> 00:19:21,236
Speaker 1: think you're absolutely right. And you know, in response to

237
00:19:21,276 --> 00:19:24,156
Speaker 1: your point about how did law professors, you know our

238
00:19:24,236 --> 00:19:27,836
Speaker 1: job respond, probably most didn't say much. There was a

239
00:19:27,916 --> 00:19:31,276
Speaker 1: famous Larva article that came out almost immediately called something

240
00:19:31,316 --> 00:19:35,636
Speaker 1: like the Japanese internment cases a disaster. So there were

241
00:19:35,676 --> 00:19:38,156
Speaker 1: there were some voices saying, you know, this isn't right.

242
00:19:38,716 --> 00:19:41,236
Speaker 1: But I think the mainstream, as you say, had the

243
00:19:41,316 --> 00:19:44,116
Speaker 1: view of, you know, loyalty to the Roosevelt administration, and

244
00:19:44,676 --> 00:19:47,356
Speaker 1: indeed that was true of the liberal Supreme Court justices

245
00:19:47,436 --> 00:19:51,516
Speaker 1: who decided the Quotamatsu decision. The FDR appointees were trying

246
00:19:51,556 --> 00:19:54,196
Speaker 1: to be loyal to the president, and they also believed

247
00:19:54,236 --> 00:19:57,796
Speaker 1: mistakenly that another case decided at the same time called

248
00:19:57,996 --> 00:20:01,236
Speaker 1: Endo would effectively close the internment camps. And they said, well,

249
00:20:01,236 --> 00:20:03,796
Speaker 1: you know, pragmatically, it'll be fine. So yeah, I mean,

250
00:20:03,796 --> 00:20:06,756
Speaker 1: the point you're raising is very powerful. It's extremely powerful.

251
00:20:07,556 --> 00:20:08,796
Speaker 1: If we want to know what we would have done,

252
00:20:08,796 --> 00:20:12,996
Speaker 1: then the question is now, what will we do now? Paul?

253
00:20:13,076 --> 00:20:15,036
Speaker 1: What am I not asking you that I should be

254
00:20:15,076 --> 00:20:19,996
Speaker 1: asking you in this moment? Is reform enough? And the

255
00:20:20,036 --> 00:20:27,036
Speaker 1: answer is no. So when we think about different expressions

256
00:20:27,036 --> 00:20:31,436
Speaker 1: of exactly what the problem is, I think people have

257
00:20:31,836 --> 00:20:36,956
Speaker 1: four kind of competing ideas, maybe some overlap. Some people

258
00:20:37,116 --> 00:20:42,676
Speaker 1: say the problem is brothers, it's the way that we

259
00:20:42,756 --> 00:20:45,836
Speaker 1: perform masculinity. If we would just pull up our pants,

260
00:20:46,476 --> 00:20:49,436
Speaker 1: we wouldn't have to worry about being stopped in fisk

261
00:20:49,516 --> 00:20:52,716
Speaker 1: or were shot by the police. Some other folks say

262
00:20:52,716 --> 00:20:58,276
Speaker 1: the problem is under enforcement of law, and there the

263
00:20:58,636 --> 00:21:03,156
Speaker 1: remedy is stopping fisk more law. The third framing, I

264
00:21:03,156 --> 00:21:07,276
Speaker 1: think is the one that has the most reach. It's

265
00:21:07,316 --> 00:21:10,796
Speaker 1: the liberal idea that the problem as a relationship thing

266
00:21:10,956 --> 00:21:14,556
Speaker 1: between African Americans communities are coloring the police. If we

267
00:21:14,556 --> 00:21:18,036
Speaker 1: would just try to see each other's side, it's almost

268
00:21:18,076 --> 00:21:20,876
Speaker 1: like we're calling a bad marriage and we just have

269
00:21:20,996 --> 00:21:26,276
Speaker 1: to come together. There the remedy is things like body cameras,

270
00:21:27,076 --> 00:21:31,676
Speaker 1: pattern and practice investigations of local police departments, better training.

271
00:21:31,756 --> 00:21:36,636
Speaker 1: This is the liberal frame. And then finally, some folks

272
00:21:36,876 --> 00:21:44,396
Speaker 1: diagnose the issue as white supremacy and mass incarceration and

273
00:21:45,156 --> 00:21:51,876
Speaker 1: brutal prisons and violent policing are just symptoms. And the

274
00:21:51,996 --> 00:21:56,596
Speaker 1: concern there is if you just fix the symptom, you're

275
00:21:56,636 --> 00:22:00,196
Speaker 1: not treating the disease. So even if we could make

276
00:22:00,236 --> 00:22:02,636
Speaker 1: the police do better, then it's just going to mutate.

277
00:22:02,796 --> 00:22:09,796
Speaker 1: The way in this telling, white supremacy devolved from slavery

278
00:22:10,116 --> 00:22:13,276
Speaker 1: to the old gem crow to the New Germ crow.

279
00:22:14,276 --> 00:22:17,556
Speaker 1: So when I think about my experiences as an African

280
00:22:17,556 --> 00:22:24,596
Speaker 1: American man, as a prosecutor, and as a scholar, I'm

281
00:22:24,636 --> 00:22:29,836
Speaker 1: most persuaded by that last critique, So I think we

282
00:22:29,916 --> 00:22:34,716
Speaker 1: have to think beyond reform. I think reform is hugely

283
00:22:34,836 --> 00:22:39,676
Speaker 1: important because what reform means that, in the short term,

284
00:22:39,756 --> 00:22:43,796
Speaker 1: the police kill fewer people, and they beat up fewer people,

285
00:22:44,596 --> 00:22:49,156
Speaker 1: and they arrest fewer black and brown people in situations

286
00:22:49,156 --> 00:22:53,156
Speaker 1: in which they wouldn't arrest white folks, and so reformers

287
00:22:53,236 --> 00:22:57,396
Speaker 1: literally life saving. But at the end of the day,

288
00:22:57,436 --> 00:23:01,116
Speaker 1: I think we have to think more broadly about transformation.

289
00:23:02,236 --> 00:23:06,356
Speaker 1: I want to close by asking you about that grand problem,

290
00:23:06,396 --> 00:23:09,556
Speaker 1: which can be called white supremacy and then systemic I

291
00:23:09,596 --> 00:23:12,876
Speaker 1: think could be described as the application of the idea

292
00:23:12,876 --> 00:23:16,076
Speaker 1: of white supremacy. White supremacies the idea, and systemic racism

293
00:23:16,116 --> 00:23:18,876
Speaker 1: is the consequence of that in the real world that

294
00:23:18,916 --> 00:23:21,636
Speaker 1: we actually live in. I know a lot of people

295
00:23:21,676 --> 00:23:25,276
Speaker 1: who are sympathetic to that conclusion I think I am myself,

296
00:23:25,996 --> 00:23:29,596
Speaker 1: and who really worry about what that means for the

297
00:23:29,676 --> 00:23:34,996
Speaker 1: reform effort overall, because they think that situational reforms are good,

298
00:23:35,076 --> 00:23:38,396
Speaker 1: they're desirable, but they're just depressed about the fact that

299
00:23:39,036 --> 00:23:42,596
Speaker 1: years after the Civil rights movement, we're still not that

300
00:23:42,716 --> 00:23:48,356
Speaker 1: close to even a set of proposed solutions that would

301
00:23:48,396 --> 00:23:52,676
Speaker 1: seem to remedy this that even reparations would not potentially

302
00:23:52,716 --> 00:23:55,956
Speaker 1: have the capacity to make the structural and systemic change

303
00:23:56,516 --> 00:24:00,156
Speaker 1: to shift racial equality in the United States into something

304
00:24:00,396 --> 00:24:03,116
Speaker 1: viable and real. What do you say to that kind

305
00:24:03,156 --> 00:24:07,996
Speaker 1: of concern that sometimes in some people's minds veers into pessimism.

306
00:24:08,156 --> 00:24:15,516
Speaker 1: I get it. I'm frequently pessimistic myself. What I'm encouraged

307
00:24:15,556 --> 00:24:20,636
Speaker 1: by is kind of the creativity I see, the energy

308
00:24:20,796 --> 00:24:23,796
Speaker 1: that I see in this moment, that it's making me

309
00:24:24,596 --> 00:24:31,996
Speaker 1: pessimistically optimistic. Sometimes I get almost corny. I get, you know,

310
00:24:32,196 --> 00:24:35,956
Speaker 1: proud of you know what black folks have been able

311
00:24:35,996 --> 00:24:40,516
Speaker 1: to accomplish in this country, how much we've given in

312
00:24:40,636 --> 00:24:45,196
Speaker 1: terms of culture, science, government. We're the people who invented

313
00:24:45,836 --> 00:24:49,796
Speaker 1: jazz and hip hop and rock and roll and gospel.

314
00:24:49,916 --> 00:24:53,636
Speaker 1: And then I go all American and think, well, gee,

315
00:24:53,676 --> 00:24:57,556
Speaker 1: this is the country that gave the world the Worldwide

316
00:24:57,676 --> 00:25:04,316
Speaker 1: Web and Amazon and Google. And then I think, well,

317
00:25:04,356 --> 00:25:06,516
Speaker 1: if we ask what is it that we expect the

318
00:25:06,556 --> 00:25:10,836
Speaker 1: criminal legal process to do, which is to keep us

319
00:25:10,876 --> 00:25:16,316
Speaker 1: safe and to make people who've caused harm responsible, surely

320
00:25:16,436 --> 00:25:20,556
Speaker 1: we can find ways to do that that don't evolve.

321
00:25:20,796 --> 00:25:25,836
Speaker 1: Cages don't evolve the police pointing guns at people. That

322
00:25:26,516 --> 00:25:29,716
Speaker 1: don't result in the US having five percent of the

323
00:25:29,716 --> 00:25:32,956
Speaker 1: world's population and twenty five percent of the world's image.

324
00:25:32,996 --> 00:25:36,996
Speaker 1: I just think we can use our creativity, our ingenuity,

325
00:25:37,836 --> 00:25:43,156
Speaker 1: or know how to come up with better ways to

326
00:25:43,356 --> 00:25:46,916
Speaker 1: be safe. What I think is, you know, the most

327
00:25:46,956 --> 00:25:51,436
Speaker 1: tragic one of the most tragic words on a ten

328
00:25:51,476 --> 00:25:55,836
Speaker 1: minute videotape full of tragic words, the videotape of the

329
00:25:55,956 --> 00:26:01,676
Speaker 1: police crushing the life out of George Floyd, some of

330
00:26:01,676 --> 00:26:06,636
Speaker 1: the most tragic words come from a bystander who, as

331
00:26:06,676 --> 00:26:12,716
Speaker 1: he's watching sets to the cop he's human, bro. But

332
00:26:12,956 --> 00:26:18,876
Speaker 1: to these four officers, mister Floyd was not human. And

333
00:26:18,876 --> 00:26:21,916
Speaker 1: when I think, how do you deal with that problem, right,

334
00:26:22,756 --> 00:26:26,756
Speaker 1: how do you deal with policing that seems designed to

335
00:26:26,916 --> 00:26:31,876
Speaker 1: enforce the dehumanization of black folks? Then I understand the

336
00:26:31,916 --> 00:26:36,676
Speaker 1: problem is much deeper than our criminal legal process. But

337
00:26:36,756 --> 00:26:38,556
Speaker 1: I have to hope at the end of the day

338
00:26:38,596 --> 00:26:41,636
Speaker 1: that what Martin Luther King said was right when he

339
00:26:41,676 --> 00:26:48,196
Speaker 1: said the moral arc of the universe leans towards justice.

340
00:26:49,116 --> 00:26:53,836
Speaker 1: I have to hope that that's right. Paul, thank you

341
00:26:53,916 --> 00:26:57,596
Speaker 1: for your clarity and your voice, and thank you for

342
00:26:57,676 --> 00:27:01,596
Speaker 1: being crucial to the diagnosis and also for being part

343
00:27:01,596 --> 00:27:04,236
Speaker 1: of our efforts to find a cure. Thank you for

344
00:27:04,676 --> 00:27:08,756
Speaker 1: devoting your podcast to this important issue. It's always a pleasure,

345
00:27:08,796 --> 00:27:13,356
Speaker 1: no pleasure, Thanks Paul. Talking to Paul, I walked away

346
00:27:13,396 --> 00:27:15,756
Speaker 1: with the sense that I always have in talking to him,

347
00:27:15,796 --> 00:27:19,636
Speaker 1: of being in the presence of an extremely clear, rational,

348
00:27:19,956 --> 00:27:24,636
Speaker 1: analytic thinker addressing some of the most intractable and terrifying

349
00:27:24,716 --> 00:27:28,796
Speaker 1: problems of our times. Paul is also a powerful moral voice.

350
00:27:29,356 --> 00:27:31,996
Speaker 1: One crucial thing I take away from my conversation with

351
00:27:32,076 --> 00:27:34,156
Speaker 1: him is the statement that if you want to ask

352
00:27:34,196 --> 00:27:37,356
Speaker 1: yourself what would I have done during slavery? What would

353
00:27:37,356 --> 00:27:39,636
Speaker 1: I have done during the civil rights movement? You can

354
00:27:39,676 --> 00:27:41,876
Speaker 1: answer that question by looking at yourself in the mirror

355
00:27:41,876 --> 00:27:46,556
Speaker 1: and asking what am I doing? Now? Make sure to

356
00:27:46,556 --> 00:27:50,476
Speaker 1: follow Paul's testimony before the Judiciary Committee. We will continue

357
00:27:50,516 --> 00:27:54,636
Speaker 1: to follow the pressing question of police reforms in policy

358
00:27:54,876 --> 00:27:57,836
Speaker 1: and in principle until the next time I speak to you.

359
00:27:58,316 --> 00:28:04,796
Speaker 1: Be careful, be safe, and be well. Deep background is

360
00:28:04,796 --> 00:28:07,996
Speaker 1: brought to you by Pushkin Industries. Our producer is Lydia

361
00:28:08,036 --> 00:28:11,476
Speaker 1: Jane Cott, with research help from zooe Win and mastering

362
00:28:11,516 --> 00:28:15,956
Speaker 1: by Jason Gambrel and Martin Gonzalez. Our showrunner is Sophie mckibbon.

363
00:28:16,516 --> 00:28:19,836
Speaker 1: Our theme music is composed by Luis GERA special thanks

364
00:28:19,836 --> 00:28:23,556
Speaker 1: to the Pushkin Brass, Malcolm Gladwell, Jacob Weisberg, and Mia Lobel.

365
00:28:24,276 --> 00:28:27,196
Speaker 1: I'm Noah Feldman. I also write a regular column for

366
00:28:27,276 --> 00:28:30,716
Speaker 1: Bloomberg Opinion, which you can find at Bloomberg dot com

367
00:28:30,756 --> 00:28:35,036
Speaker 1: slash Feldman. To discover Bloomberg's original slate of podcasts, go

368
00:28:35,116 --> 00:28:39,316
Speaker 1: to Bloomberg dot com slash podcasts. And one last thing,

369
00:28:39,756 --> 00:28:42,916
Speaker 1: I just wrote a book called The Arab Winter, a Tragedy.

370
00:28:43,276 --> 00:28:45,236
Speaker 1: I would be delighted if you checked it out. You

371
00:28:45,236 --> 00:28:46,876
Speaker 1: can always let me know what you think on Twitter

372
00:28:47,116 --> 00:28:50,116
Speaker 1: about this episode, or the book or anything else. My

373
00:28:50,156 --> 00:28:53,836
Speaker 1: handle is Noah R. Feldman. This is deep background