The Barriers to Reform

reform legislation. Meanwhile, local officials are calling for different sets or reforms, including in some cases, the dismantling or defunding of the police. To discuss both what needs to be done to address police brutality and the capacity of reform, more generally, to make meaningful change, I'm joined by Paul Butler. Paul as a professor at the Georgetown University Law Center. He's a former federal prosecutor and the author of the

extraordinary book Chokehold Policing Black Man. He's also one of the leading scholars in the United States working on the confluence of policing, criminal law, and race. Paul, thank you so much for joining me. Let me start by asking you you're in DC, where you teach and live. Have you been out in the protests? I had to go on Saturday. I joined multicultural, multi generational, huge group of people as close to the White House as the Coward in Chief would allow us to get. What was so

moving was the spirit of the crowd. People are fed up. I'm hoping that this is different, this is the movement and not the moment. But unfortunately I've had that hope before and been disappointed. You and other people of our generation remember the la riots, and then we remember Ferguson and then lots of other specific events, Eric Garner's death, of course, which is one of the things that inspired

your book with the prescient and terrifying titled Chokehold. Do you think, in fact that the feeling that a lot of people have right now that this time is different with respect to reform is probable? I think you posed the question perfectly. I think the feeling that people have is different in the sense that many people now understand the scale of the problem. This week, we've seen countless acts of police brutality. When they're policing marches to protest brutality,

it's almost like they can't help themselves. So I think that now people get people understand, but what folks may not understand as well as they do the problem, the barriers to challenging, the barriers to transformation. What do you see as the greatest barriers to transformation? Starting with the reforms that I would say are kind of concrete reforms anti brutality reforms, reorganization of police departments. Will come later to the more grand reform suggestions that some people are

making about defunding and abolishing. But starting with the ones that I might call the kind of the more low hanging fruit, what are the primary barriers to those going into effect. Well, one of the biggest is unions and other organizations that represent police that consistently resist change, even common sense reform. Percent of the police officers in Minneapolis

live in the city, just seven percent. We know that when law enforcement officers are neighbors in the communities that they serve and protect, they're more invested in those communities, they're more accountable, and unfortunately that low number seven percent is consistent with the low numbers in many urban police departments. How do cops get away with this? They get away with it because of their powerful collective bargaining organizations and

other groups that represent them. It's not just with residency requirements. Virtually every proposal for reform gets squelched by these all powerful organizations. What are some other barriers to reform? The Democrats probably won't get adopted under the Trump administration, but they propose fairly comprehensive reforms coming from the federal level that the unions couldn't technically block, although the unions will probably oppose them. What are the other barriers that are

out there? One of the barriers, well, let's not say one of the barriers, let's say eighteen thousand of the barriers. So they're eighteen thousand different police departments in the United States, and they're eighteen thousand different ways of policing. I'm going to be testifying at the House Judiciary Committee hearing on this bill, and one of the issues is how Congress can use its authority to help these local police departments

serve and protect their citizens more effectively. It turns out that while Congress has the power of the purse, it doesn't have a lot of direct authority over departments other than by allocating funds or withholding funds. If these departments refused to be accountable and transparent. You know, it's this kind of traditional tension between local control and civil rights and human rights for people of color. What will the

main thrust of your testimony be. I mean, the fact you're testifying suggests that you're at least broadly in support of the proposals. Well, I'm there to talk about what I've learned in twenty five years of thinking about these issues, and during some of that time working as a prosecutor. So as a prosecutor, one of my specialties was corrupt law enforcement officers. And when I look at what happens when police officers are charged with crimes, most times those

officers are not convicted. So in the last fifteen or twenty years, there have been roughly one hundred cops who've been charged with murder. The majority of those officers walked, the charges were dismissed, or they were found not guilty. Maybe a quarter of those officers who were found guilty of lesser included offenses like manslaughter or negligent homicide. So roughly a hundred officers charged with homicide, roughly seven convicted of murder. We know that US cops kill about one

thousand people a year. I say we know, really, I should say, we think we estimate. One of the things that this bill would do would be to require the federal to maintain accurate data about police use of force. The FBI has been supposed to do that for the

last five years, but unfortunately they just have it. And so if this bill is passed, getting accurate data on stop and frisks on police use of force would go a long way in helping explain the scope of the problem and letting us take a closer look at the

race dispurities that we know are there. Paul, One of the things that's been happening in the last you know, ten days or so, is that the protests have begun to include not just calls to stop killing black people, but also a policy recommendation or demand to defund, abolish, or dismantle police departments. Please give me your reaction to that development. When people talk about defunding police departments, there's not a consensus now and exactly what they mean, what

I think of what the concern is. Remember that when people call nine one one, often having someone respond with a gun and the power to arrest makes things worse, not better. Sometimes people call nine one one when they're experiencing a mental health crisis, a breakdown in a relationship, a family problem, or a medical problem, and the men and women in blue with guns in those instances aren't

the most effective first responders. So what I think this I idea of reinvesting some of the money that goes to the police in community services, in healthcare, in schools. I think that that's a more holistic way of keeping communities safe. So the people I know who are enthusiastic about defunding police departments understand that public safety has got to be paramount. But what they also understand is they are more effective ways of keeping families whole and neighborhoods

secure than our current approach. And ironically, when I talk to the range of my friends who are in different areas of the workforce in the criminal legal process, some of the people who most agree with the concerns that the protesters are expressing our cops police officers are the first to say, people call us for a whole range of problems that we're not equipped to address. So I think a lot of author steers well, they might have legitimate concerns about what it means to die vest from

the departments that are paying their salaries. I think that they will embrace the hope that there's a broader range of services from the state when people are in danger than just during somebody under the jail. Do you have any concern that the rhetoric of dismantle or abolish plays into the hands of Donald Trump, who can then treat out and say again and again in his run for office, of course, we can't abolish or dismantle the police, and

the Democrats are behind that. He can say that falsely and use that to try to win over middle of the road voters who otherwise seem to be very fed up with Donald Trump according to the polls, but who are of course crucially important to the election in November. I'm certain that the President and some other Republicans will look at some of the demands from this nationwide movement against police brutality and highlight some of those demands to

suggest that they're extreme or anti cop. That's not new. For the last fifty years, almost every presidential candidate has exploited anxiety about law and order. The subtext is anxiety about African American men and Latino men, and sometimes that's actually the text not the subtext. So the fact that the president will make some of the demands political and a campaign issue is to be expected. We know that Donald Trump has already won the white foe statistically, most

white people are going to vote for him. That's been true of every Republican candidate since the election of JFK. And so rather than worry about kind of the white body politic as a whole, we're I'm focused is that forty three forty four percent that the Democratic candidate has to get in order to win. And when I look

at who's marching. Oh, one of my African American buddies said to me, almost as a critique, that he'd driven by one of the protest rallies in DC and most of the people he saw, most of the protesters were white. I think that's a really good thing. I think that now we're assembling on this issue the kind of broad

based coalition that we need to create change. And so, just like in the civil rights movement in the nineteen sixties, when a lot of people from the faith community, a lot of people from labor unions, a lot of people who were in allied movements like the Women's movement, the LGBT movement came out. I think we're seeing that now, so that fifty three fifty four percent of white folks who just don't get it, or who aren't concerned, or who think that basically the victims of police violence deserve

what they get. No, we're not going to reach them, but I think that there are many other people of good will who will rise to this occasion. We'll be right back. There's a lot of talk among white liberals about what the right way is to show support for Black Lives Matter, showing respect for the leadership that BLM has taken and respect for African American voices while simultaneously

expressing support and connection. Do you have a view on what the right approaches in that subtle balance for white people who are supportive of BLM. I have a bunch of ideas. So in my book Choco Policing Black Men, I suggest arrange of things that folks can do. So it can be as simple as contributing to a bail fund. It could be coming out and joining a march. I have a bunch of students who are future lawyers, and have this future lawyer uneasy mix of wokeness and professional ambition,

who ask should I go to a protest? And I unfortunately told one student yes, about the protests in Lafayette Square or last Monday, I told her, as long as you followed the rules and left before the curfew should be fine. As the whole world knows. That turned out

not to be true. But I do think that showing up that makes a difference, and particularly for people who aren't of color, and for people who aren't black, to show that you understand that this is one of the most important human rights movements and civil rights movements of our time, that makes a huge difference. And that same section in my book have a subsection called for run alway Slaves only, and that is about this this question. I asked myself sometime like back in the day, what

would I have done during slavery? I hope that I would have been a run away slave or been one of the enslave people who led an uprising. Reality is that most people, including most enslaved people, didn't do that. And then during the civil rights movement, I hope that I would have marched with Martin or ticket to the streets with Malcolm. And the reality is most folks, including most African American people didn't do that, and the movement

for Black lives. The question is, if you want to know what you would have done back in the day, ask yourself, what are you doing right now? And so I think that's a question that we all need to ask ourselves, know in terms of the work that we do. Sometimes I wonder, like the day after Kamatsu was decided, well, what was the conversation like in the Georgetown Law faculty lounge where the Harvard Law School faculty dining room. So I think we all want to rise to this occasion.

We all want to want to meet this moment, you know, subject to our own kind of personal capacity. And so for runaway slaves in this context, again you could talk about abolition. You can practice civil disobedience, you can you know, be a leader in the transformation that we need. I think you're absolutely right. And you know, in response to your point about how did law professors, you know our

job respond, probably most didn't say much. There was a famous Larva article that came out almost immediately called something like the Japanese internment cases a disaster. So there were there were some voices saying, you know, this isn't right. But I think the mainstream, as you say, had the view of, you know, loyalty to the Roosevelt administration, and indeed that was true of the liberal Supreme Court justices

who decided the Quotamatsu decision. The FDR appointees were trying to be loyal to the president, and they also believed mistakenly that another case decided at the same time called Endo would effectively close the internment camps. And they said, well, you know, pragmatically, it'll be fine. So yeah, I mean, the point you're raising is very powerful. It's extremely powerful. If we want to know what we would have done, then the question is now, what will we do now? Paul?

What am I not asking you that I should be asking you in this moment? Is reform enough? And the answer is no. So when we think about different expressions of exactly what the problem is, I think people have four kind of competing ideas, maybe some overlap. Some people say the problem is brothers, it's the way that we perform masculinity. If we would just pull up our pants, we wouldn't have to worry about being stopped in fisk

or were shot by the police. Some other folks say the problem is under enforcement of law, and there the remedy is stopping fisk more law. The third framing, I think is the one that has the most reach. It's the liberal idea that the problem as a relationship thing between African Americans communities are coloring the police. If we would just try to see each other's side, it's almost like we're calling a bad marriage and we just have

to come together. There the remedy is things like body cameras, pattern and practice investigations of local police departments, better training. This is the liberal frame. And then finally, some folks diagnose the issue as white supremacy and mass incarceration and brutal prisons and violent policing are just symptoms. And the concern there is if you just fix the symptom, you're not treating the disease. So even if we could make the police do better, then it's just going to mutate.

The way in this telling, white supremacy devolved from slavery to the old gem crow to the New Germ crow. So when I think about my experiences as an African American man, as a prosecutor, and as a scholar, I'm most persuaded by that last critique, So I think we

have to think beyond reform. I think reform is hugely important because what reform means that, in the short term, the police kill fewer people, and they beat up fewer people, and they arrest fewer black and brown people in situations in which they wouldn't arrest white folks, and so reformers literally life saving. But at the end of the day, I think we have to think more broadly about transformation.

I want to close by asking you about that grand problem, which can be called white supremacy and then systemic I think could be described as the application of the idea of white supremacy. White supremacies the idea, and systemic racism is the consequence of that in the real world that

we actually live in. I know a lot of people who are sympathetic to that conclusion I think I am myself, and who really worry about what that means for the reform effort overall, because they think that situational reforms are good, they're desirable, but they're just depressed about the fact that years after the Civil rights movement, we're still not that close to even a set of proposed solutions that would seem to remedy this that even reparations would not potentially

have the capacity to make the structural and systemic change to shift racial equality in the United States into something viable and real. What do you say to that kind of concern that sometimes in some people's minds veers into pessimism. I get it. I'm frequently pessimistic myself. What I'm encouraged by is kind of the creativity I see, the energy that I see in this moment, that it's making me

pessimistically optimistic. Sometimes I get almost corny. I get, you know, proud of you know what black folks have been able to accomplish in this country, how much we've given in terms of culture, science, government. We're the people who invented jazz and hip hop and rock and roll and gospel. And then I go all American and think, well, gee, this is the country that gave the world the Worldwide

Web and Amazon and Google. And then I think, well, if we ask what is it that we expect the criminal legal process to do, which is to keep us safe and to make people who've caused harm responsible, surely we can find ways to do that that don't evolve. Cages don't evolve the police pointing guns at people. That don't result in the US having five percent of the world's population and twenty five percent of the world's image.

I just think we can use our creativity, our ingenuity, or know how to come up with better ways to be safe. What I think is, you know, the most tragic one of the most tragic words on a ten minute videotape full of tragic words, the videotape of the police crushing the life out of George Floyd, some of the most tragic words come from a bystander who, as he's watching sets to the cop he's human, bro. But

to these four officers, mister Floyd was not human. And when I think, how do you deal with that problem, right, how do you deal with policing that seems designed to enforce the dehumanization of black folks? Then I understand the problem is much deeper than our criminal legal process. But I have to hope at the end of the day that what Martin Luther King said was right when he said the moral arc of the universe leans towards justice.

I have to hope that that's right. Paul, thank you for your clarity and your voice, and thank you for being crucial to the diagnosis and also for being part of our efforts to find a cure. Thank you for devoting your podcast to this important issue. It's always a pleasure,

no pleasure, Thanks Paul. Talking to Paul, I walked away with the sense that I always have in talking to him, of being in the presence of an extremely clear, rational, analytic thinker addressing some of the most intractable and terrifying problems of our times. Paul is also a powerful moral voice. One crucial thing I take away from my conversation with him is the statement that if you want to ask yourself what would I have done during slavery? What would

I have done during the civil rights movement? You can answer that question by looking at yourself in the mirror and asking what am I doing? Now? Make sure to follow Paul's testimony before the Judiciary Committee. We will continue to follow the pressing question of police reforms in policy and in principle 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 zooe Win and mastering by Jason Gambrel and Martin Gonzalez. Our showrunner is Sophie mckibbon. Our theme music is composed by Luis GERA special thanks to the Pushkin Brass, Malcolm Gladwell, Jacob Weisberg, and Mia Lobel. 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 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