Pushkin from Pushkin Industries. This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman. For the past week, there have been protests, mass demonstrations, rallies, and looting all around the country. All of this protest began in an immediate sense with the death of an African American man, George Floyd, whose last moments were captured on video. He was being held down by a white police officer who was arresting him. The
officer's knee was on his neck. Here to discuss policing civil rights and what can be done to improve the dire situation we're in is Venita Gupta. She's the president of the Leadership Conference on Civil and Human Rights, which is the country's largest civil rights coalition. Under the Obama administration, she was the acting Assistant Attorney General running the US Department of Justice's Civil Rights Division. That means she was
the chief civil rights prosecutor in the United States. Before that, she worked at the NAACP Legal Defense and Education Fund and at the ACLU. Venita, thank you so much for
joining me. This is an extraordinary and extraordinarily upsetting time for a lot of people, and I just want to start by asking you, how is it that after years of consciousness raising by Black Lives Matter and other organizations, we're still in a situation where an event like the tragic death of George Floyd in Minnesota can trigger circumstances like brand Well, I think we as a country have been saddled with the problem of police violence and state
violence against black communities in particular since our funding. And while one can argue that there's been progress in certain places, these are issues that are pretty confounding for the country. And you look at that video of mister Floyd on the ground with four officers on him, one of them on his neck, you know, where witnesses and community members are pleading for the officer to get off of him
and the like. There's just no way to look at that and not be profoundly outrage And that's the pain that you're seeing out lying on the street. And we have we don't have perfect police departments, so we still have really deep problems of systemic racism in our justice
system in policing that we have not yet addressed. And there are a number of reasons for this, but there's no question that policing, in racial justice, in public safety remain really tense issues that we often just kind of push under the rug, and then they flare up when you have incidents like mister Floyd's, because they resonate in so many communities as to the spear for the kind of harassment or problematic broken relationships that exist in too
many communities. With regards to law enforcement, the Civil Rights Division of the Department of Justice, which you ran during a chunk of the Obama administration, of course, has the legal authority to come in and prosecute when police go too far. What about the systematic approaches to trying to solve what you were describing as a systemic problem. What efforts did you make, you and your teammate during the Obama administration of the police brutality question more generally, and
then I'll ask you what became of those efforts. So in the Obama Justice Department, there was a real understanding that Congress gave the Justice Department in nineteen ninety four the authority to investigate police departments for systemic misconduct. This came out of the Broadney King beating in in Los Angeles and an investigation of the LAPD and this jurisdiction has been always judiciously used, but it was one that the Obama Justice Department took seriously open twenty five investigations
into major police departments. At the time that the end of the administration ruled around, we had consent decrees in fifteen cities across the country, and these consent decrees had really become the basis for our best practices for triggering really hard conversations in law enforcement. But as you know, I came into the Justice Department just weeks after Michael Brown had been killed in Ferguson, and the country was ablaze quite literally around the same questions that the country's
contending with right now. And we had a president who in his final years really dug in on race and justice and policing in a way that I think was pretty stark, and understood how important it was for people to have for communities of cloud, for black communities to have some faith in the legal system as providing justice. But we needed There's been a lot of focus on the fact that there's been two little criminal accountability of
officers when they engage in this misconduct. But I've always thought that the criminal accountability, while absolutely crucial to giving people faith in the legal system, is not sufficient, and that these pattern and practice investigations are really aimed at getting at systemic, entrenched problems and police departments that can't be fixed overnight or with a single criminal prosecution. And so we did these investigations, and we had these consent
decrees around the country. It was pretty obvious when when President Trump nominated Jeff Sessions to head up the Justice Department's Attorney General the direction that all of this would go, which was South Attorney General Sessions from a minute he came in, actually even where he was confirmed, trying to get the Justice Department out of a very intense negotiation
for a Baltimore consent decree. And we were in this strange position in February of twenty seventeen where the Justice Department was trying to get out of this consent decree and arguing federalism to the federal court in Baltimore and the police commissioner and mayor in Baltimore. We're saying, no, no, no, we need this consent decree to be able to rebuild
trust in the city of Baltimore. And they have systematically both under Sessions and Bar stematically gutted the work of the Civil Rights Division, dismantling police reform efforts, halting to almost a complete halt except in one tiny investigation, but halting all police investigations. They gutted. Jeff Sessions on his way out of his firing, left a memo behind basically making it almost impossible for the Civil Rights Division to
to get consent decrees against local jurisdictions. And so we've had a series of all of these, the kind of gutting of this work, coupled with rhetoric and a bully pulpit that is from the President to Sessions and bar giving speeches that basically, you know, really foster not only in US versus them mentality, But I would go so far as to say, even you know, Trump in twenty seventeen encouraging police violence of suspects and the like. And this is a very very dangerous place for the country
to be in in this moment. Can we drill down into what a best practices consent to create ought to look like, because I mean, some of those do remain in place, and they also raise at least of possibility of providing a model for what ought to be done going forward. It's not going to come out of this Department of Justice, obviously, but there will be other administrations, one hopes, in the future. So what is the content in your you of best practices? What should departments do
when they don't want to have events like this take place? Well, I the consent decrease all look very different from each other. They're really important, rich documents, but they look different from each other because policing is inherently local. We have eighteen thousand police departments in this country, and so policing in this country is local, but it is bound by the constitution.
And these consent decrease covered topics like supervision systems, accountability systems, efforts to stop racially biased policing through changing policies and training around stop and searches, arrests practices, looking at officer wellness to deal with stress on the job that can create very bad conditions for certain officers on the beat, looking at problems with excessive use of force in putting in de escalation policies, time communication, space mechanisms to de escalate,
and the like. But every one of these looks different because they are fueled by they don't come about until the Justice Department has engaged in intense investigation, looking at every record, interviewing hundreds and hundreds of police officers, community activists, leaders people, residents that really describe what is happening in the policing in that particular city, and then coming up
with solutions tailored to that city. The Leadership Conference last year actually issued a report called the New Era of Public Safety that aggregated a lot of the best practices in that document, in consent decrees, in DOJ research, in research from the International Association Chiefs of Police and civil rights organizations in order to really provide communities on the ground with the kinds of tools and best practices learnings that came from these consent decrees, in part because the
Justice Department has literally walked away from this work, and so we wanted to be able to provide those tools. But this is some of the flavor of what is in any particular consent decree, And just by example, with Chicago, Chicago Police Department long and storing history of systemic misconduct, we really went deep into the problems of accountability, the lack of accountability systems, lack of supervisory consistency, the lack of adequate training, and accountability on use of force and
accessive use of force. So that's just to give you some examples. Veneda, when I hear you say that there are eighteen thousand police departments in the United States and that there were fifteen consent decrees put in place by the Obama administration, of the enormous disparity in those numbers really makes me think the solution can't be the kind of nuanced, case by case, individually negotiated agreement then approved
by a court, which is a consent decree. There if we really are serious about a systemic problem, it needs to be addressed systematically. So I want to ask you, imagine a democratic Congress, imagine a democratic president and a
will to make fundamental change At the national level. Could there be federal legislation that would operate wholesale, not just retail, that would, through let's say conditioning receipt of federal funds on reorganization, lead to the kinds of changes in supervision, accountability, de escalation, and so forth at a national level. Is that something that's doable, is it something that's desirable? And
what would it look like if so? Yeah, So before I want to answer this question, but I want to it's really important to mention that the patter and practice tool that the Justice Department has is just one tool of many that it has to incentivize reform. The Justice Department uses has a Cops Office, a Community Oriented Policing Services Office that has a host of different programs, Technical Assistance,
Collaborative reform. These were programs that back the Obama administration were well funded and really helped push departments at a much greater scale to engage in reform. They produced research that was out for the field, convening authority with chiefs from around the country that would come together to talk
through best practices and what they were doing. But also in the aftermath of Ferguson, President Obama are recognizing, you know, just how widespread this problem is and how many police departments there are launched the twenty first Century Policing Task Force that over the course of three months came up with best practices and then can started to convene twenty thirty forty chiefs once a week for the next several years to literally dig in on this report and engage
how these chiefs were actually implementing the outcomes and best practices in this report. And so it is not one tool or tactic that is going to win the day. You have to have sustained leadership that is pushing on this in a way that obviously wet now, but if you look at this, this is part of what is needed. The Justice Department is going to need. A new Justice Department will need to reinvigorate all of these tools, but I also think needs to go beyond what it already exists.
So we need to have a justice department that reinvigorates the community relations service that played such a profound role in nineteen sixty eight. In the late sixties, it's been really gutted, but in maintaining and building relationships locally on the ground when unrest breaks through. We need to have laws, federal laws that are actually in place that provide for
minimum national use of force standards. We need a national Registry of Police and miss conducts in a national registry that documents officers that have been fired for disciplinary reasons or excessive use of force, so that these officers are just not cycling around between department to department getting hired despite their own records in law enforcement. We need to
expand the federal charging options. This is you know, it used to be a controversial topic, but I just don't see how we can proceed and give the It is the fact that the Justice Department and federal prosecutors have one statute with the highest criminal intense standard in it in order to prosecute officers who engage in this conduct. It doesn't make sense and it has let It is meant that the Justice Department has had to decline prosecution in cases that they shouldn't have had to given um,
given kind of how reckless the behavior was. So right now, there's a it's a standard that requires proving specifically that not only was the use of force unreasonable, but that um that the officer knew at the time that he or she was violating a constitutional right of a person, that they knew it was wrong and did it anyway. And we need more charging options for prosecutors. These are just some of the things that I think states and
Congress ultimately need to take up. Even as we talk about reinvigorating a Justice Department and all of the tools that has and you talk about the spending clause issue, this is something that has been raised a lot about what is the power of the federal government's purse, which provides money out of the Justice Department to every police
department in the country. How can that power be used to incentivize um better policing, And in some cases there's been conversations about mandating better policing, better data collection, and I think this is a this is a question that we have not reckoned with and I don't think that it is we have to put this on the table now, and it's something that has been politically toxic before in
prior times. But I think the fact that we don't even aren't even able to collect data on officer involved fatalities, I think is a real travesty. We'll be read back. I want to ask you about the historical patterns that are essentially starting to emerge now. The Rodney King police brutality event, followed by the Los Angeles riots, then the Ferguson riots, then now the riots that are spread all over the country, just beginning in Minneapolis but not spreading
all over the country. These have become kind of recurrent events. And I suppose it could even go back before then and go back to the nineteen sixty eight riots if one wanted to push the historical model back before and I'm omitting some smaller instances, but these are the big national kind of cataclysmic riots. They're now a part of the American historical trajectory. What is your deep instinct about
what can be done to address this recurring phenomenon? And the reason I ask is, you know, we could imagine Joe Biden becoming president, then you become attorney general or deputy attorney general, and the president says to you, look, you know, take the leadership on this. We don't want this to happen anymore. We want something that's transformative. All of the sort of policy oriented approaches that you're describing all seem valuable and worthwhile, do any of them get
at this kind of core recurring phenomenon? Is this the kind of problem that can be solved or addressed through those kind of cautious, incremental, rational, very Obama like interventions. So, I mean, some of the things that I've talked about would actually be pretty transformative, about having minimum national use of force standards and things that things that actually may seem like words on a page but that don't exist and have never existed in our nation in this way.
But you know, I have said this a lot to people, which is that there is no silver bullet solution, and I know that is deeply dissatisfying to people, but there truly isn't in policing. The structure of policing in this kind of tree, with eighteen thousand police departments, the long history of structural racism and state violence in particular against
block communities. These are this is the legacy that we are saddled with, and we are saddled with a legal system that is that won't be allowed for a single silver bullet. It's going to take transformative, bold thinking. It is not going to be enough for a Biden administration or any administration to basically say, let's let's reinstate all that President Obama did and then cross our fingers and hope for the best. Because that's enough. We have to go away beyond what we were able to achieve in
the Obama administration. This is the kinds of things that we are putting on the table now are require bold, new thinking. But it is going to take multiple efforts. It's going to take work at the part on the part of mayors in cities. It's going to take work on the part of police chief to actually implement much of what is known to be best practices. There is still tremendous resistance, mostly coming from police unions, but also from leadership. You know in certain parts of the country
that are resistant. But I would say the law enforcement leadership around the country is in a different place today than they were in twenty fourteen. And it may be cold comfort right now, but I take that as some modicum of progress. It's going to take Congress passing some sweeping laws around the stuff and policing. For some reason, you know, there's been this surge of bipartisanship around chronal justice reform. Policing is never a part of these conversations.
You can't talk about policing without talking about race in a really frontal way. And so there isn't a silver bullet, Noah. But I don't think also the answer is just like return to what we were doing before in a more liberal or democratic administration. It's actually going to take like serious, progressive, bold thinking based on what we know today. And in the end of the day, there is never going to
be a perfect police department. There are going to be critical awful tragedies that happen, and the difference will be what the police department and what police departments around the country do about it versus kind of the defiance or resistance that we have seen in parts of the country
in response to these events. And I think that's part that requires a racial reckoning, and we're kind of reckoning with our history even as we change laws, engage in deep thinking and reform efforts those at the local, state, and national level. One of the tragic features that we're seeing now in real time is that there are peaceful protests demanding reform and change when it's light out, and
then at night there's looting. And without entering into the very difficult to answer question of who's responsible for the looting and whether their community outside is, whether they're from the far left or from the far right, I just want to ask you what is the appropriate, from your perspective and civil rights respecting police response to the looting, because one thing that we're seeing is that in that
you know, police are becoming increasingly aggressive and violent. But that just begs the question of what should the police be doing when they see looting. I'm not talking about response to peaceful demonstrations, but to actual violent looting. Well, I think we have to be clear that there is
most people are peacefully protesting, even at night. And what's happening is that you've got now, you know, increasingly, as night after night goes of forces at play that have nothing to do with mister Floyd's death, that are instigating acts of violence around the country. And there's been so many videos of black protesters and activists, you know, getting mad at at so called white allies for defacing buildings
and putting things on fire and the like. And I am really distrusted about this, as are so many and I think that that is something that you have to talk about when you're talking about what's happening on the streets right now, because most of that has nothing to do with honoring mister Floyd's staff and the issues underlying it. But I also think look at law enforcement, it isn't that they started acting aggressively in a lot of cities just two three days ago when the protests started to surge.
There was a lot of militarized response. Um the leadership conference with the NAACP, the National Urban League, the NAACP Legal defenseman and other civil rights organizations wrote a letter to the mayor and the police chief in Minneapolis about about ways to make sure that they can protect the protesters right to the First Amendment while protecting public safety. Um, you know, using tear gas unnecessarily on peaceful protesters. Um uh,
you know, not having a militarized response. These were some of the things we were talking about early on when when we weren't seeing what's playing out in the streets right now and in tuning these cities, that aggressive response was happening very early on, that inflamed what was happening on the street. But of course law enforcement has to be able to protect operate from being burnt into faced
and uh. And the question is are they making you know, just kind of reinstigating or throwing fuel on the fire around engaging in excessive force or excessive use of arrest to do that. I think community leaders are speaking out calling for peace. There are civil rights leaders calling for peace. There are activists on the ground that are saying this
is not in George Floyd's name. But I think we have to be really clear eyed about like the dynamics on the street without you know, re emphasizing or reasserting kind of an US versus them mentality here, because it
is very, very complicated. The Bonna Justice Department conducted after action assessments of how police were managing the protests that on occasion turned violent, h you know, in Ferguson and the like in Minneapolis, even after Jamar Clark was killed, you know, like the pandemic reports that were shelved and are been collecting dusk in the Trump administration, I don't think that this Justice Department is looking at what was learned in those prior incidents and encouraging law enforcement to
de escalate and to find the ways to both protect protesters and protect public safety in this moment. Do you think the protests at this point have gotten beyond the straightforward demand for black people's lives to be respected and honored by the police, and have sort of come to stand more broadly for not only structural injustice, but also more general frustration that many people around the country are
feeling with a lack of change. And the reason I ask that is that when I talk to my students, of course they acknowledge that the core claim of black Lives Matter is that the police ought not to engage in brutal and unlawful forms of policing. They kill people to kill black people. But they also say and that's just a part of a broader project, which includes prison abolition,
which includes other kinds of basic change. And I'm wondering whether your perception is that the protests have sort of gotten beyond the initial topic of George Floyd's life and the lives of other people like him. You know, we have to remember that this is all playing itself out amid a global pandemic that has ravaged in particular, black and brown communities disproportionately in this country. And the unemployment rates are going to be there, they're staggering across the board.
But the health outcomes of COVID, the prevalence of COVID, the mortality of COVID, has hit the Black community further than any other community in the country right now, save probably for the Latino community. And it we are in a situation where there is such a massive degree of frustration around structural inequalities at large, and policing is usually
the tip of the sphere. When we were in Baltimore and after Freddy Gray was killed, Freddie Gray's death is just the kind of the final thing that triggered the massive unrest in Baltimore after years and decades of profound segregation and housing in schools and divestment in transportation and education. And so you are seeing play out on the streets
right now. So it is it is anger at mister Floyd's death, but it is much deeper than that, And I think this is part of the broader reckoning that we have to do as a country to acknowledge this pain in the current lived experiences of communities of color, not only visa VI policing, but but regarding so many other issues that are that are kind of excluding these
communities from access to opportunity, from access to wealth. And it's in the face of an administration that, frankly, you know, uses racial division racial polarization as an electoral tactic and a president who thrives on this and thrives on the division. So we don't even have national leadership that could even pretend or wants to pretend or wants to show up as a unifying force or as a calming force. So that's why I think you're seeing the kinds of things
play out that you're seeing today. My last question, Venita, when you look at the situation that we're in now and it's recurring nature, do you have any optimism about our national capacity to improve in these dimensions in the future. And if you do feel optimism, why you know. I'm a civil rights lawyer, and I think as a civil rights lawyer, we are we have deep wells of optimism. It's the only reason why we are able to continue day in and day out doing what we do. And
so I do feel optimistic. I feel optimistic because I look at the decades of our history and look from where to where we've come. And I don't think you can deny progress that has been made. It is been painstaking, it has been slow, it has been at the cost
of people's lives. But I you know. I was in Selma in early March commemorating the fifty fifth anniversary of Bloody Sunday, and Congressman John Lewis showed up in the middle of the Edmund Pettis Bridge, the first time he had had a public appearance since he was diagnosed with pancreatic cancer, and talked about how he was standing on the spot where his skull had been broken by the Alabama state troopers fifty five years ago in his quest for the right to vote along with you know, thousands
of people who were marching that day, and he forced all of us in that moment to remember that is bad and scary as these times are, that this country
has been through a lot. It has been through slavery and Jim Crow and deep seated pervasive violence, and it has been through this and has seen some progress, not because we just sat back and hope that time would make this all inevitable, but actually because people of good conscience, young people especially, but people men, women, young folks have rolled up their sleeves and insisted on a better America,
and they have worked at it. They have marched in the streets, they have litigated in the courts, they have elected representatives, they have fought voter suppression. And so the only way that we are going to see change is by re engaging and doubling down our commitment to this. Despair is not an option. Despair is really a kind of tool of the privilege to sit back as communities burn or as communities suffer under inequality. And so to me, hope is actually one of the most important things I
say hope is a discipline. I think it's one of the most important things that we bring to this work. But it requires a commitment because the alternative is far easier. And I think, you know, when people say, well, how are you coping, your civil rights leader, how was anyone doing this work right now? I said, the only thing worse right now would be to be sitting on the sidelines at this moment, not giving a dam and just
saying nothing can change. Because I think that we all are our agents of change, and that is our responsibility in this moment, is to not let go of the possibility of a better America. Thank you, Anita, Thank you for your efforts. Thank you for your work, Thank you for your frank discussion. Now, thank you, Thanks Noah. Talking to Vinita gave me a strong sense of the challenges that continue to face the United States in the realm
of civil rights. On the one hand, within the Obama administration where she worked, serious efforts were made to try to take on the problem of police violence and to improve policing in the United States. That included case specific consent decrees involving particular police departments and how they should be reformed. It also included some broader efforts to produce system change and how policing takes place in the United States.
Those efforts could potentially be restarted in a democratic administration. Yet, as Venita fothrightly acknowledged, just going back to the Obama administration's policies would not be sufficient to solve the problems that we are talking about. They have deep historical roots and they express a fundamental structural injustice in the United States that's bound up in our four hundred year history. As Vanita said, there is no single silver bullet solution
to the problem of police violence and civil rights. How much more so then, is it true that there is no single bullet solution to the problem of structural racism and its history and ongoing effects in the United States. Despite all this, Vanita still has hope for improvement. And as she depicts it, hope is a discipline, perhaps even a moral obligation, insofar as it stands for the idea that we cannot simply stand idly by and accept that
the world is broken. Rather, we have to undertake a serious, sustained, patient, long term effort to try to improve it. Until the next time I speak to you, be careful, be safe, and be well. Deep Background is brought to you by Pushkin Industries. Our producer is Lydia Jane Cott, with research help from Zooi Winn and mastering by Jason Gambrel and Martin Gonzalez. Our showrunner is Sophie mckibbon. Our theme music is composed by Luis Guerrat special thanks to the Pushkin Brass,
Malcolm Gladwell, Jacob Weisberg, and Mia Loebell. I'm Noah Feldman. I also write a regular column for Bloomberg Opinion, which you can find at Bloomberg dot com slash Feldman. To discover Bloomberg's original slate of podcasts, go to Bloomberg dot com slash Podcasts. And one last thing, I just wrote a book called The Arab Winter, a Tragedy. I would be delighted if you're checked it out. You can always let me know what you think on Twitter about this episode,
or the book or anything else. My handle is Noah R. Feldman. This is Deep Background