Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show
Speaker 1: where we explore the stories behind the stories in the news.
Speaker 1: I'm Noah Feldman. The death of George Floyd set off
Speaker 1: demonstrations across the country calling for fundamental reforms of policing.
Speaker 1: Since then, activists and politicians are trying to give substance
Speaker 1: to the idea of change and reform. Democratic members of
Speaker 1: the House of Representatives are in the process of proposing
Speaker 1: reform legislation. Meanwhile, local officials are calling for different sets
Speaker 1: or reforms, including in some cases, the dismantling or defunding
Speaker 1: of the police. To discuss both what needs to be
Speaker 1: done to address police brutality and the capacity of reform,
Speaker 1: more generally, to make meaningful change, I'm joined by Paul Butler.
Speaker 1: Paul as a professor at the Georgetown University Law Center.
Speaker 1: He's a former federal prosecutor and the author of the
Speaker 1: extraordinary book Chokehold Policing Black Man. He's also one of
Speaker 1: the leading scholars in the United States working on the
Speaker 1: confluence of policing, criminal law, and race. Paul, thank you
Speaker 1: so much for joining me. Let me start by asking
Speaker 1: you you're in DC, where you teach and live. Have
Speaker 1: you been out in the protests? I had to go
Speaker 1: on Saturday. I joined multicultural, multi generational, huge group of
Speaker 1: people as close to the White House as the Coward
Speaker 1: in Chief would allow us to get. What was so
Speaker 1: moving was the spirit of the crowd. People are fed up.
Speaker 1: I'm hoping that this is different, this is the movement
Speaker 1: and not the moment. But unfortunately I've had that hope
Speaker 1: before and been disappointed. You and other people of our
Speaker 1: generation remember the la riots, and then we remember Ferguson
Speaker 1: and then lots of other specific events, Eric Garner's death,
Speaker 1: of course, which is one of the things that inspired
Speaker 1: your book with the prescient and terrifying titled Chokehold. Do
Speaker 1: you think, in fact that the feeling that a lot
Speaker 1: of people have right now that this time is different
Speaker 1: with respect to reform is probable? I think you posed
Speaker 1: the question perfectly. I think the feeling that people have
Speaker 1: is different in the sense that many people now understand
Speaker 1: the scale of the problem. This week, we've seen countless
Speaker 1: acts of police brutality. When they're policing marches to protest brutality,
Speaker 1: it's almost like they can't help themselves. So I think
Speaker 1: that now people get people understand, but what folks may
Speaker 1: not understand as well as they do the problem, the
Speaker 1: barriers to challenging, the barriers to transformation. What do you
Speaker 1: see as the greatest barriers to transformation? Starting with the
Speaker 1: reforms that I would say are kind of concrete reforms
Speaker 1: anti brutality reforms, reorganization of police departments. Will come later
Speaker 1: to the more grand reform suggestions that some people are
Speaker 1: making about defunding and abolishing. But starting with the ones
Speaker 1: that I might call the kind of the more low
Speaker 1: hanging fruit, what are the primary barriers to those going
Speaker 1: into effect. Well, one of the biggest is unions and
Speaker 1: other organizations that represent police that consistently resist change, even
Speaker 1: common sense reform. Percent of the police officers in Minneapolis
Speaker 1: live in the city, just seven percent. We know that
Speaker 1: when law enforcement officers are neighbors in the communities that
Speaker 1: they serve and protect, they're more invested in those communities,
Speaker 1: they're more accountable, and unfortunately that low number seven percent
Speaker 1: is consistent with the low numbers in many urban police departments.
Speaker 1: How do cops get away with this? They get away
Speaker 1: with it because of their powerful collective bargaining organizations and
Speaker 1: other groups that represent them. It's not just with residency requirements.
Speaker 1: Virtually every proposal for reform gets squelched by these all
Speaker 1: powerful organizations. What are some other barriers to reform? The
Speaker 1: Democrats probably won't get adopted under the Trump administration, but
Speaker 1: they propose fairly comprehensive reforms coming from the federal level
Speaker 1: that the unions couldn't technically block, although the unions will
Speaker 1: probably oppose them. What are the other barriers that are
Speaker 1: out there? One of the barriers, well, let's not say
Speaker 1: one of the barriers, let's say eighteen thousand of the barriers.
Speaker 1: So they're eighteen thousand different police departments in the United States,
Speaker 1: and they're eighteen thousand different ways of policing. I'm going
Speaker 1: to be testifying at the House Judiciary Committee hearing on
Speaker 1: this bill, and one of the issues is how Congress
Speaker 1: can use its authority to help these local police departments
Speaker 1: serve and protect their citizens more effectively. It turns out
Speaker 1: that while Congress has the power of the purse, it
Speaker 1: doesn't have a lot of direct authority over departments other
Speaker 1: than by allocating funds or withholding funds. If these departments
Speaker 1: refused to be accountable and transparent. You know, it's this
Speaker 1: kind of traditional tension between local control and civil rights
Speaker 1: and human rights for people of color. What will the
Speaker 1: main thrust of your testimony be. I mean, the fact
Speaker 1: you're testifying suggests that you're at least broadly in support
Speaker 1: of the proposals. Well, I'm there to talk about what
Speaker 1: I've learned in twenty five years of thinking about these issues,
Speaker 1: and during some of that time working as a prosecutor.
Speaker 1: So as a prosecutor, one of my specialties was corrupt
Speaker 1: law enforcement officers. And when I look at what happens
Speaker 1: when police officers are charged with crimes, most times those
Speaker 1: officers are not convicted. So in the last fifteen or
Speaker 1: twenty years, there have been roughly one hundred cops who've
Speaker 1: been charged with murder. The majority of those officers walked,
Speaker 1: the charges were dismissed, or they were found not guilty.
Speaker 1: Maybe a quarter of those officers who were found guilty
Speaker 1: of lesser included offenses like manslaughter or negligent homicide. So
Speaker 1: roughly a hundred officers charged with homicide, roughly seven convicted
Speaker 1: of murder. We know that US cops kill about one
Speaker 1: thousand people a year. I say we know, really, I
Speaker 1: should say, we think we estimate. One of the things
Speaker 1: that this bill would do would be to require the
Speaker 1: federal to maintain accurate data about police use of force.
Speaker 1: The FBI has been supposed to do that for the
Speaker 1: last five years, but unfortunately they just have it. And
Speaker 1: so if this bill is passed, getting accurate data on
Speaker 1: stop and frisks on police use of force would go
Speaker 1: a long way in helping explain the scope of the
Speaker 1: problem and letting us take a closer look at the
Speaker 1: race dispurities that we know are there. Paul, One of
Speaker 1: the things that's been happening in the last you know,
Speaker 1: ten days or so, is that the protests have begun
Speaker 1: to include not just calls to stop killing black people,
Speaker 1: but also a policy recommendation or demand to defund, abolish,
Speaker 1: or dismantle police departments. Please give me your reaction to
Speaker 1: that development. When people talk about defunding police departments, there's
Speaker 1: not a consensus now and exactly what they mean, what
Speaker 1: I think of what the concern is. Remember that when
Speaker 1: people call nine one one, often having someone respond with
Speaker 1: a gun and the power to arrest makes things worse,
Speaker 1: not better. Sometimes people call nine one one when they're
Speaker 1: experiencing a mental health crisis, a breakdown in a relationship,
Speaker 1: a family problem, or a medical problem, and the men
Speaker 1: and women in blue with guns in those instances aren't
Speaker 1: the most effective first responders. So what I think this
Speaker 1: I idea of reinvesting some of the money that goes
Speaker 1: to the police in community services, in healthcare, in schools.
Speaker 1: I think that that's a more holistic way of keeping
Speaker 1: communities safe. So the people I know who are enthusiastic
Speaker 1: about defunding police departments understand that public safety has got
Speaker 1: to be paramount. But what they also understand is they
Speaker 1: are more effective ways of keeping families whole and neighborhoods
Speaker 1: secure than our current approach. And ironically, when I talk
Speaker 1: to the range of my friends who are in different
Speaker 1: areas of the workforce in the criminal legal process, some
Speaker 1: of the people who most agree with the concerns that
Speaker 1: the protesters are expressing our cops police officers are the
Speaker 1: first to say, people call us for a whole range
Speaker 1: of problems that we're not equipped to address. So I
Speaker 1: think a lot of author steers well, they might have
Speaker 1: legitimate concerns about what it means to die vest from
Speaker 1: the departments that are paying their salaries. I think that
Speaker 1: they will embrace the hope that there's a broader range
Speaker 1: of services from the state when people are in danger
Speaker 1: than just during somebody under the jail. Do you have
Speaker 1: any concern that the rhetoric of dismantle or abolish plays
Speaker 1: into the hands of Donald Trump, who can then treat
Speaker 1: out and say again and again in his run for office,
Speaker 1: of course, we can't abolish or dismantle the police, and
Speaker 1: the Democrats are behind that. He can say that falsely
Speaker 1: and use that to try to win over middle of
Speaker 1: the road voters who otherwise seem to be very fed
Speaker 1: up with Donald Trump according to the polls, but who
Speaker 1: are of course crucially important to the election in November.
Speaker 1: I'm certain that the President and some other Republicans will
Speaker 1: look at some of the demands from this nationwide movement
Speaker 1: against police brutality and highlight some of those demands to
Speaker 1: suggest that they're extreme or anti cop. That's not new.
Speaker 1: For the last fifty years, almost every presidential candidate has
Speaker 1: exploited anxiety about law and order. The subtext is anxiety
Speaker 1: about African American men and Latino men, and sometimes that's
Speaker 1: actually the text not the subtext. So the fact that
Speaker 1: the president will make some of the demands political and
Speaker 1: a campaign issue is to be expected. We know that
Speaker 1: Donald Trump has already won the white foe statistically, most
Speaker 1: white people are going to vote for him. That's been
Speaker 1: true of every Republican candidate since the election of JFK.
Speaker 1: And so rather than worry about kind of the white
Speaker 1: body politic as a whole, we're I'm focused is that
Speaker 1: forty three forty four percent that the Democratic candidate has
Speaker 1: to get in order to win. And when I look
Speaker 1: at who's marching. Oh, one of my African American buddies
Speaker 1: said to me, almost as a critique, that he'd driven
Speaker 1: by one of the protest rallies in DC and most
Speaker 1: of the people he saw, most of the protesters were white.
Speaker 1: I think that's a really good thing. I think that
Speaker 1: now we're assembling on this issue the kind of broad
Speaker 1: based coalition that we need to create change. And so,
Speaker 1: just like in the civil rights movement in the nineteen sixties,
Speaker 1: when a lot of people from the faith community, a
Speaker 1: lot of people from labor unions, a lot of people
Speaker 1: who were in allied movements like the Women's movement, the
Speaker 1: LGBT movement came out. I think we're seeing that now,
Speaker 1: so that fifty three fifty four percent of white folks
Speaker 1: who just don't get it, or who aren't concerned, or
Speaker 1: who think that basically the victims of police violence deserve
Speaker 1: what they get. No, we're not going to reach them,
Speaker 1: but I think that there are many other people of
Speaker 1: good will who will rise to this occasion. We'll be
Speaker 1: right back. There's a lot of talk among white liberals
Speaker 1: about what the right way is to show support for
Speaker 1: Black Lives Matter, showing respect for the leadership that BLM
Speaker 1: has taken and respect for African American voices while simultaneously
Speaker 1: expressing support and connection. Do you have a view on
Speaker 1: what the right approaches in that subtle balance for white
Speaker 1: people who are supportive of BLM. I have a bunch
Speaker 1: of ideas. So in my book Choco Policing Black Men,
Speaker 1: I suggest arrange of things that folks can do. So
Speaker 1: it can be as simple as contributing to a bail fund.
Speaker 1: It could be coming out and joining a march. I
Speaker 1: have a bunch of students who are future lawyers, and
Speaker 1: have this future lawyer uneasy mix of wokeness and professional ambition,
Speaker 1: who ask should I go to a protest? And I
Speaker 1: unfortunately told one student yes, about the protests in Lafayette
Speaker 1: Square or last Monday, I told her, as long as
Speaker 1: you followed the rules and left before the curfew should
Speaker 1: be fine. As the whole world knows. That turned out
Speaker 1: not to be true. But I do think that showing
Speaker 1: up that makes a difference, and particularly for people who
Speaker 1: aren't of color, and for people who aren't black, to
Speaker 1: show that you understand that this is one of the
Speaker 1: most important human rights movements and civil rights movements of
Speaker 1: our time, that makes a huge difference. And that same
Speaker 1: section in my book have a subsection called for run
Speaker 1: alway Slaves only, and that is about this this question.
Speaker 1: I asked myself sometime like back in the day, what
Speaker 1: would I have done during slavery? I hope that I
Speaker 1: would have been a run away slave or been one
Speaker 1: of the enslave people who led an uprising. Reality is
Speaker 1: that most people, including most enslaved people, didn't do that.
Speaker 1: And then during the civil rights movement, I hope that
Speaker 1: I would have marched with Martin or ticket to the
Speaker 1: streets with Malcolm. And the reality is most folks, including
Speaker 1: most African American people didn't do that, and the movement
Speaker 1: for Black lives. The question is, if you want to
Speaker 1: know what you would have done back in the day,
Speaker 1: ask yourself, what are you doing right now? And so
Speaker 1: I think that's a question that we all need to
Speaker 1: ask ourselves, know in terms of the work that we do.
Speaker 1: Sometimes I wonder, like the day after Kamatsu was decided, well,
Speaker 1: what was the conversation like in the Georgetown Law faculty
Speaker 1: lounge where the Harvard Law School faculty dining room. So
Speaker 1: I think we all want to rise to this occasion.
Speaker 1: We all want to want to meet this moment, you know,
Speaker 1: subject to our own kind of personal capacity. And so
Speaker 1: for runaway slaves in this context, again you could talk
Speaker 1: about abolition. You can practice civil disobedience, you can you know,
Speaker 1: be a leader in the transformation that we need. I
Speaker 1: think you're absolutely right. And you know, in response to
Speaker 1: your point about how did law professors, you know our
Speaker 1: job respond, probably most didn't say much. There was a
Speaker 1: famous Larva article that came out almost immediately called something
Speaker 1: like the Japanese internment cases a disaster. So there were
Speaker 1: there were some voices saying, you know, this isn't right.
Speaker 1: But I think the mainstream, as you say, had the
Speaker 1: view of, you know, loyalty to the Roosevelt administration, and
Speaker 1: indeed that was true of the liberal Supreme Court justices
Speaker 1: who decided the Quotamatsu decision. The FDR appointees were trying
Speaker 1: to be loyal to the president, and they also believed
Speaker 1: mistakenly that another case decided at the same time called
Speaker 1: Endo would effectively close the internment camps. And they said, well,
Speaker 1: you know, pragmatically, it'll be fine. So yeah, I mean,
Speaker 1: the point you're raising is very powerful. It's extremely powerful.
Speaker 1: If we want to know what we would have done,
Speaker 1: then the question is now, what will we do now? Paul?
Speaker 1: What am I not asking you that I should be
Speaker 1: asking you in this moment? Is reform enough? And the
Speaker 1: answer is no. So when we think about different expressions
Speaker 1: of exactly what the problem is, I think people have
Speaker 1: four kind of competing ideas, maybe some overlap. Some people
Speaker 1: say the problem is brothers, it's the way that we
Speaker 1: perform masculinity. If we would just pull up our pants,
Speaker 1: we wouldn't have to worry about being stopped in fisk
Speaker 1: or were shot by the police. Some other folks say
Speaker 1: the problem is under enforcement of law, and there the
Speaker 1: remedy is stopping fisk more law. The third framing, I
Speaker 1: think is the one that has the most reach. It's
Speaker 1: the liberal idea that the problem as a relationship thing
Speaker 1: between African Americans communities are coloring the police. If we
Speaker 1: would just try to see each other's side, it's almost
Speaker 1: like we're calling a bad marriage and we just have
Speaker 1: to come together. There the remedy is things like body cameras,
Speaker 1: pattern and practice investigations of local police departments, better training.
Speaker 1: This is the liberal frame. And then finally, some folks
Speaker 1: diagnose the issue as white supremacy and mass incarceration and
Speaker 1: brutal prisons and violent policing are just symptoms. And the
Speaker 1: concern there is if you just fix the symptom, you're
Speaker 1: not treating the disease. So even if we could make
Speaker 1: the police do better, then it's just going to mutate.
Speaker 1: The way in this telling, white supremacy devolved from slavery
Speaker 1: to the old gem crow to the New Germ crow.
Speaker 1: So when I think about my experiences as an African
Speaker 1: American man, as a prosecutor, and as a scholar, I'm
Speaker 1: most persuaded by that last critique, So I think we
Speaker 1: have to think beyond reform. I think reform is hugely
Speaker 1: important because what reform means that, in the short term,
Speaker 1: the police kill fewer people, and they beat up fewer people,
Speaker 1: and they arrest fewer black and brown people in situations
Speaker 1: in which they wouldn't arrest white folks, and so reformers
Speaker 1: literally life saving. But at the end of the day,
Speaker 1: I think we have to think more broadly about transformation.
Speaker 1: I want to close by asking you about that grand problem,
Speaker 1: which can be called white supremacy and then systemic I
Speaker 1: think could be described as the application of the idea
Speaker 1: of white supremacy. White supremacies the idea, and systemic racism
Speaker 1: is the consequence of that in the real world that
Speaker 1: we actually live in. I know a lot of people
Speaker 1: who are sympathetic to that conclusion I think I am myself,
Speaker 1: and who really worry about what that means for the
Speaker 1: reform effort overall, because they think that situational reforms are good,
Speaker 1: they're desirable, but they're just depressed about the fact that
Speaker 1: years after the Civil rights movement, we're still not that
Speaker 1: close to even a set of proposed solutions that would
Speaker 1: seem to remedy this that even reparations would not potentially
Speaker 1: have the capacity to make the structural and systemic change
Speaker 1: to shift racial equality in the United States into something
Speaker 1: viable and real. What do you say to that kind
Speaker 1: of concern that sometimes in some people's minds veers into pessimism.
Speaker 1: I get it. I'm frequently pessimistic myself. What I'm encouraged
Speaker 1: by is kind of the creativity I see, the energy
Speaker 1: that I see in this moment, that it's making me
Speaker 1: pessimistically optimistic. Sometimes I get almost corny. I get, you know,
Speaker 1: proud of you know what black folks have been able
Speaker 1: to accomplish in this country, how much we've given in
Speaker 1: terms of culture, science, government. We're the people who invented
Speaker 1: jazz and hip hop and rock and roll and gospel.
Speaker 1: And then I go all American and think, well, gee,
Speaker 1: this is the country that gave the world the Worldwide
Speaker 1: Web and Amazon and Google. And then I think, well,
Speaker 1: if we ask what is it that we expect the
Speaker 1: criminal legal process to do, which is to keep us
Speaker 1: safe and to make people who've caused harm responsible, surely
Speaker 1: we can find ways to do that that don't evolve.
Speaker 1: Cages don't evolve the police pointing guns at people. That
Speaker 1: don't result in the US having five percent of the
Speaker 1: world's population and twenty five percent of the world's image.
Speaker 1: I just think we can use our creativity, our ingenuity,
Speaker 1: or know how to come up with better ways to
Speaker 1: be safe. What I think is, you know, the most
Speaker 1: tragic one of the most tragic words on a ten
Speaker 1: minute videotape full of tragic words, the videotape of the
Speaker 1: police crushing the life out of George Floyd, some of
Speaker 1: the most tragic words come from a bystander who, as
Speaker 1: he's watching sets to the cop he's human, bro. But
Speaker 1: to these four officers, mister Floyd was not human. And
Speaker 1: when I think, how do you deal with that problem, right,
Speaker 1: how do you deal with policing that seems designed to
Speaker 1: enforce the dehumanization of black folks? Then I understand the
Speaker 1: problem is much deeper than our criminal legal process. But
Speaker 1: I have to hope at the end of the day
Speaker 1: that what Martin Luther King said was right when he
Speaker 1: said the moral arc of the universe leans towards justice.
Speaker 1: I have to hope that that's right. Paul, thank you
Speaker 1: for your clarity and your voice, and thank you for
Speaker 1: being crucial to the diagnosis and also for being part
Speaker 1: of our efforts to find a cure. Thank you for
Speaker 1: devoting your podcast to this important issue. It's always a pleasure,
Speaker 1: no pleasure, Thanks Paul. Talking to Paul, I walked away
Speaker 1: with the sense that I always have in talking to him,
Speaker 1: of being in the presence of an extremely clear, rational,
Speaker 1: analytic thinker addressing some of the most intractable and terrifying
Speaker 1: problems of our times. Paul is also a powerful moral voice.
Speaker 1: One crucial thing I take away from my conversation with
Speaker 1: him is the statement that if you want to ask
Speaker 1: yourself what would I have done during slavery? What would
Speaker 1: I have done during the civil rights movement? You can
Speaker 1: answer that question by looking at yourself in the mirror
Speaker 1: and asking what am I doing? Now? Make sure to
Speaker 1: follow Paul's testimony before the Judiciary Committee. We will continue
Speaker 1: to follow the pressing question of police reforms in policy
Speaker 1: and in principle until the next time I speak to you.
Speaker 1: Be careful, be safe, and be well. Deep background is
Speaker 1: brought to you by Pushkin Industries. Our producer is Lydia
Speaker 1: Jane Cott, with research help from zooe Win and mastering
Speaker 1: by Jason Gambrel and Martin Gonzalez. Our showrunner is Sophie mckibbon.
Speaker 1: Our theme music is composed by Luis GERA special thanks
Speaker 1: to the Pushkin Brass, Malcolm Gladwell, Jacob Weisberg, and Mia Lobel.
Speaker 1: I'm Noah Feldman. I also write a regular column for
Speaker 1: Bloomberg Opinion, which you can find at Bloomberg dot com
Speaker 1: slash Feldman. To discover Bloomberg's original slate of podcasts, go
Speaker 1: to Bloomberg dot com slash podcasts. And one last thing,
Speaker 1: I just wrote a book called The Arab Winter, a Tragedy.
Speaker 1: I would be delighted if you checked it out. You
Speaker 1: can always let me know what you think on Twitter
Speaker 1: about this episode, or the book or anything else. My
Speaker 1: handle is Noah R. Feldman. This is deep background