Race and Policing

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In this teleforum, James R. Copland will discuss competing legislative proposals in Congress, in the context of a complex phenomenon. In Copland's view, the evidence is clear that black men both disproportionately benefit from policing and disproportionately bear its costs. How should we think about the evidence, and how should we address the issue?

Copland wil also discuss his newly-released book, The Unelected: How an Unaccountable Elite is Governing America.

Featuring:

James R. Copland, Senior Fellow and Director, Legal Policy, Manhattan Institute

 

 

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Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at www.fedsoc.org.

 

 

Dean Reuter:  Welcome to The Federalist Society's practice group teleforum conference call as today, September 28, 2020, we discuss “Race and Policing,” and other matters as well. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call. Also, this call is being recorded and will likely be used as a podcast and will likely be transcribed and put on The Federalist Society’s website.

 

      We’re very pleased to welcome a single guest today, James Copland. He’s the Senior Fellow and Director of Legal Policy at the Manhattan Institute. He’s going to speak to us about race and policing, but I’ve also -- it’s come to my attention he has a book out on the administrative state, one of my favorite topics, so we’ll be exploring that as well.

 

      If, during his opening remarks, you want to look up his book and learn more about it, it is The Unelected: How an Unaccountable Elite is Governing America from Encounter Books. It’s just out earlier this month, a couple weeks ago, so look forward to talking to him about policing and the administrative state, two different topics. But with that, Jim Copland, the floor is yours.

 

James Copland:  Thanks so much, Dean, and thanks to The Federalist Society. It’s just a fantastic organization and one I’ve been happy to have been affiliated with in some way, shape, or form for well over two decades now since my time in law school.

 

      The topic here that Dean asked me to talk about, race and policing, is one that I published in the September 7 print edition of National Review magazine, a feature called “In Policing, Race Matters.” And I wanted to talk about this. This is not the area of the law that I have traditionally written as much about. I’ve traditionally written more about things like the administrative state and civil litigation, and to the extent I’ve talked about things like criminal law, it’s typically been what we’d call overcriminalization or regulatory crimes, or the malum prohibitum crimes, which is not really what policing, by and large, deals with.

 

      But of course, as everyone is aware, when we had a mass protest movement this summer, not the first one in the last decade, but the most recent, in the wake of George Floyd’s death in Minneapolis, and many of these evolved into rioting. That’s prompted action in Congress, and as those of us who work in think tanks are wont to do, we were in discussions with various staffers in the Congress as they were trying to craft legislation.

 

      And two forms of legislation, the two main pieces of legislation quickly emerged. The Republican bill, sponsored principally by Senator Tim Scott, called the JUSTICE Act, the Just and Unifying Solutions to Invigorate Communities Everywhere Act being the moniker, and then the Democrat alternative, the George Floyd Justice in Policing Act. And so we went through various pieces of this, and there’s some overlap in the bills. They both would enact federal anti-lynching laws. They both have various provisions, although not identical, on things like recruitment and training.

 

      The Democrat bill has a section dedicated to addressing racial profiling, quite different than some of the solutions in the Republican bill. It gives a lot of new enforcement powers to the DOJ in Washington as well as civil action, civil enforcement authority, private rights of action under that bill.

 

      And then the Republican bill also has various things, funding, police education programs, but also things like a Commission on the Social Status of Black Men and Boys and things like this that are focused on the race issue as it intersects with policing, which as the moniker and the movement, which aren’t necessarily the same, Black Lives Matter, implies is at the forefront of people’s minds.

 

      And it’s something that I wanted to write about. It’s a personal issue to me. I’m white, my wife is black, so I have a biracial son. So this is something I’ve had to think about in the context of him. And it’s, of course, something we’ve heard about from someone like Senator Scott, who said four years ago, “In the course of one year, I’ve been stopped seven times by law enforcement in the course of one year. Not four, not five, not six, but seven times in one year as an elected official.” And that may not be the typical year, but it does, I think, suggest the fact that black men uniquely bear the burdens of our policing in America.

 

      But the flip side is, and this is something I wanted to make sure I emphasized, is that black men also are the principal beneficiaries of policing in America. And that’s something that I think is really important to emphasize, and it’s been a thrust of a lot of work at the Manhattan Institute. We have a new initiative, the Police and Public Safety Initiative that Manhattan Institute dedicated to this. Hannah Meyers has come in, who’s worked on counterterrorism on this. And my colleague, my deputy director, Senior Fellow Rafael Mangual and my longtime colleague Senior Fellow and City Journal contributing editor Heather Mac Donald have been writing about this for some time and looking at the benefits as well as the costs for black communities.

 

      And it’s not black or Latino communities disproportionately benefitting, and particularly black men, disproportionately benefitting from policing but also bearing the costs of policing. And some statistics that I threw out over in the article, looking at the last thirty years or so, the trend lines on this make this pretty clear. And what we’ve seen is a substantial significant reduction in violent crime in America.

 

      So in 1993, violent crime peaked at around 747 crimes per 100,000 people. And that fell 51 percent through 2018 to 369. When you add all that up and you extrapolate that out across 330 million people, you’ve got about a million fewer instances annually of these violent crimes, which include rape and robbery and assault. And if you just look at homicide, you see, again, falling by more than half over a similar period. The homicide peak was a little earlier in 1991 and the low point at 2014, a little earlier as well. But from the peak to the low point, you went from a little over 24,000 homicides annually to a little over 12,000 homicides annually. And so that’s a lot of lives saved each year by policing.

 

      Now, that raises the question, how much is policing responsible for this? And the National Academy of Sciences has done some work on this. I didn’t get into this in this feature article, but this is one of the few areas where you can actually point to policy levers looking at different proactive policing tactics that are well structured. For the levers to be effective, they need to be well structured. And if we want to talk about that in Q&A, we can talk about what exactly that means. But things like broken windows policing, things like proactive policing where the police are more actively engaging in communities, and things like reallocating police resources to areas where crime tends to be spiking all have demonstrable effects empirically on reducing crime.

 

      And this is actually something that’s really rare. My colleague Jim Manzi wrote a book on this trying to look at the statistical analysis of policy impact and finding that it’s actually very rare to have statistically solid impacts from public policy levers. It’s something we ought to try to test more and refine our policies as we go. But this is an area where we do know that there’s an impact that’s happening. Now, does the impact explain 100 percent of that crime reduction? No, of course not, and we don’t want to be over-preferencing every policy lever. And again, there are costs as well as benefits, and we’ll get into those in a minute.

 

      But I think the important point here is that black Americans and black men in particular bear the brunt of the homicides and the violent crimes that policing is preventing. So although only 13 percent of Americans identify as black, more than 52 percent of all murder victims in the United States are black. And if you just separate out males, who are 77 percent of homicide victims, and a higher percentage of that than perpetrators, then the percentage of males who were homicide victims, 57 percent of them are black males, notwithstanding they’re only 13 percent, again, of the population.

 

      So a substantial benefit toward policing that is reducing the violent crime rate and the homicide rate in American flows to black communities, black people, and particularly black men. And this is something that black Americans actually do understand.

 

      So I cited a study from Gallup in the piece, and there’s certainly been a more recent polling which confirms this basic principle. And in that study which was conducted last fall of residents in fragile communities, 52 percent of black in fragile communities, a higher percentage of those than whites, would like police to spend more time in their area than they currently do. And the most recent numbers here look at about 80 percent -- about 80 percent of black Americans want police in their communities as much or more than is currently the case, which I think is a sharp rebuttal to the more extreme defund the police, abolish the police, scale back policing types of approaches.

 

      If you’re looking at what black people in America, particularly those that live in fragile communities, the communities where crime is most rampant and violent crime is most prevalent, when you look at those survey numbers, its shows that that’s not what black Americans actually want is to reduce the police presence. It doesn’t mean that there’s no support for police reform, which is something different, but it’s important to understand that the police presence is something that is understood and valued by black Americans as something that goes to their benefits.

 

      But the flip side is also that black men obviously bear a significant brunt of policing itself. And some of this may involve things like racial profiling, and that’s something that we as legal people should be very sensitive to. If we want race blind, color blind — something that I value — race blind, color blind law in general, then we want to avoid race loaded decisions or discretion to officers that creates race loaded decisions.

 

      But as I pointed in my piece, it’s also inevitably going to be the case that good policing is going to have a racially disparate impact precisely due to the sizable gap in violent crime victimization rates because that also flows through to violent crime commission rates. And that’s a more uncomfortable fact, but it’s one that is true. Most violent crime tends to be same race violent crime. And so the very statistics that show that the murder rate is disproportionately being imposed upon black Americans and black men also show that when we look at the data, and the data are not as perfect when it comes to figuring out offenders versus victims, but there’s still sufficient data out there to lead to the inference that commission rates are going to be disproportionate.

 

      The other point in this is, aside from -- so there’s the individual level of suspicion. In other words, if you have a known offender, and that known offender has a racial identifier, or a sex identifier — and that’s something we’ll get to in a minute and why it makes profiling legislation of the sort that the Democrat alternative has difficult — but if you had that identifier, then, clearly, you’re going to look for suspects that match the identifier. And that would be true if it comes to body size or height. It would be true if it comes to sex. It would be true if it comes to race. And so because of that, you’re going to have inevitably more false positives.

 

      I and talk in the piece about the James Blake case. James Blake, of course, was a long-time professional tennis player, Harvard educated man, and who, right in front of the Grand Hyatt hotel, just a few blocks from the Manhattan Institute Office in New York, where I walk around all the time, he was tackled by police officers based on a false witness identification. And the point I make in the article is that that’s going to be much more likely for a black American male than a white American male, given offender identification data. Even if it’s someone who’s an elite person and someone who’s Harvard educated and a professional tennis player who’s an elite person, they’re more likely to get the sorts of false positives, regardless of whether the police officers are engaged in any racial profiling whatsoever.

 

      So Senator Scott is a similar example, someone who’s an elite person but more likely to get false positives. Even if there’s not what we think of as racial profiling, there’s going to be disparate racial impacts.

 

      And of course, when we’re doing the effective allocation of policing effort, and this is something that the New York Police Department developed at some length and quite effectively through its COMPStat program, which hasn’t been without some flaws, but in general, the principle of reallocating police resources aggressively and heavily to areas where in real time you could see crime ticking up is the best way to deter increases and spikes in violent criminal behavior.

 

      By doing that, the police department is necessarily going to be putting more police officers in contact with individuals who are likely to live in areas where violent crime is ticking up. And because we can see through the very data that a majority of homicide victims are black and some of these same data, though not quite that stark a ratio, but similar disparate numbers exist for other types of violent crime, you’re going to see the New York Police Department allocating its cops to Brownsville or Hunts Point or Spanish Harlem or places where there may be spikes in violence much more likely than you’re going to see the police department allocating substantial police resources to places like Chelsea or the Upper East Side in Manhattan or Park Slope in Brooklyn, which are less likely to be getting these upticks in violent criminal behavior.

 

      And that’s going to be creating more interactions with individuals who are actually innocent as well as more interactions with individuals who are, in fact, the criminals that you’re trying to deter. And that’s something that’s always inevitable, and it’s going to create a disparate impact. But it’s a disparate impact that is one that cuts in both directions. So individuals are more likely to have interactions with police but also less likely to have violent crime in those particular fragile communities, those particular high crime communities. And so the policing there works to protect individuals as well as creating burdens on the majority of folks there because the vast majority of folks in any neighborhood are generally law abiding citizens.

 

      It doesn’t mean that they’re not criminals in some regard. All of us are in some regard. I mean, this is what Harvey Silverglate wrote a book about Three Felonies a Day, looking at the Federal Criminal Code. All of us are unknowingly committing some malum prohibitum offense some time if we’re out in the world at all, but they’re not the sort of things that police are worried about. The things police are worried about are the classic common law crimes, homicide, rape, murder, assault, burglary, larceny, robbery. And these sorts of crimes are why the police are really out there.

 

      And of course, there’s the drug war, and we can talk about the drug war, not something I really address here, but clearly the drug war has an interaction effect here. These are obviously also crimes that aren’t unknown malum prohibitum offenses. They’re crimes that are well known to the people who are committing these crimes, by and large. But it does have potential impacts there, and it cuts in both directions.

 

      So the point I wanted to make about the George Floyd Act, the Democrat act, the Justice in Policing Act, is that by predicating on a prima facie basis the racial profiling mechanism to enable enforcement action federally as well as private rights of action on a pure disparate impact claim based on population numbers would effectively enable actions from the federal government or from civil enforcement lawsuits against essentially any police department in the country.

 

      And that’s because -- and this sort of highlight it, I think, for us the problem with this sort of analysis. That’s because the bill itself includes not just race but sort of the laundry lists of sexual orientation, religion, etc., in its laundry list of characteristics that could trigger a disparate impact finding, at least on a prima facie basis.

 

      And so because of that, it’s self-evident that there’s not a police office in the country that has more searches or more interactions with females than with males, notwithstanding that females are the majority of the country. And the reason for that is that males are overwhelmingly likely to be committing violent crime. And so because of that, it highlights the statistical problem there with predicating it. And I think there are real problems with turning these over too aggressively to the federal government as well as to civil enforcement action.

 

      And so I talk about it, and [inaudible 21:09] book, but I think a good one by New York law school professors Ross Sandler and David Shoenbrod called Democracy by Decree: What Happens When Courts Run Government. And it looks at this host of consent decrees and the problems that have happened as federal courts have taken over school systems and prisons and other sorts of things. And we see some of that when it comes to DOJ pattern and practice enforcement investigations even today.

 

      And there’s recent research out by Roland Fryer and his team at Harvard that suggests this, that it is a pattern and practice police oversight investigation correlating with one of these viral episodes, and these would be examples like Breonna Taylor or George Floyd or some of the older ones, which is what they were really testing there, you see increases in violent crime based on those procedures  and based on those pattern and practice oversight from the DOJ.

 

      And similarly, we see this sort of gamesmanship in civil litigation that can bubble up here. And we saw that in NYPD, ultimately the settlement with the plaintiffs once de Blasio took over on the so-called stop and frisk lawsuit under Judge Shira Scheindlin, who was actually removed from the case by the Second Circuit, saw the litigation out.

 

      Listen, I think there are plenty of ways to criticize the program as it was being implemented by the NYPD in its latter years as being ill targeted and creating more Terry stop engagements than were necessary to be an effective policy. But there’s still a big risk in turning this over to the courts. And you get a federal judge in there without a lot of expertise trying to dictate department policy. So something I want is us to just really take a step back and look at this and think about it.

 

      But importantly, also, to realize the fundamental fact that I’ll think about a father which is any black male is going to be more likely to have engagements with the police. And there’s at least some evidence that when it comes to police uses of force -- now, this is not deadly police uses of force, which are generally explainable across multiple studies by the interaction effect issue we were talking about earlier that once you control for the number of police interactions, the deadly use of force gap basically disappears.

 

      But when you look at use of force that’s non-deadly, you do see a gap, even controlling for various variables, about 18 percent more likely that a black male is going to get police use of force; 12 percent more likely that a Hispanic male is going to get a police use of force that is non-deadly. As with any such analysis, there are other factors that could be confounding factors that could partly explain that gap. So we can’t say with 100 percent certainty this is due to discriminatory behavior on the part of officers.

 

      But we do see some evidence that there’s something going on there. And that’s in part because this use of force gap disappears when the officer is a minority officer of the same grouping as the suspect. And so that evidence, I think, would counsel in favor of some forms of minority recruitment programs like those that are embedded in both the Democrat and Republican alternatives in Congress, and would counsel in favor of potentially training programs as well.

 

      And I also suggest that training programs in cross-race identification could be useful. It’s not going to help the James Blake situation where there’s a false misidentification based on a witness identification, but the officers -- well-trained officers could do a better job of potentially not engaging with those that don’t fit the right profile, and that may be more difficult across races because there’s a substantial amount of evidence suggesting that cross-race identifications are more difficult for most people than same-race identifications, which counsels, again, in favor of recruitment as well as the potential training.

 

      So I talked a long time about all that, but I think it’s an important issue and an important thing for us to wrestle with as we’re getting yet another wave of protest activity around these sorts of concerns.

 

Dean Reuter:  Well, Jim, we’ve advertised this call as being on the topic of race and policing, and I want to speak to that primarily, but you do have a new book out, and I want to ask a question about that. Before I do that, let’s open the floor to questions so people can begin queueing up.

 

      I mentioned, Jim, at the outset, you have a new book out. It’s titled The Unelected: How an Unaccountable Elite is Governing America. It concerns primarily the administrative state, not our topic today, but it’s from Encounter Books. It came out earlier this month on September 15. I see on Amazon it’s doing really well. But I wanted to give you a chance to speak to that a little bit. What inspired you to write this book, and what’s the main thesis of the book?

 

James Copland:  Well, the main thesis of the book is essentially that more and more of the government actions that control our everyday lives are made by people outside the election process. And of course, a piece of that is through constitutional judicial review in the courts, which, with the Supreme Court vacancy and a nomination live, all of us in The Federalist Society are very well attuned to. And that gets a lot of attention.

 

      But the issues I’ve written about over the years, and I’ve been a scholar in this are now for 17 years, have all had this common theme as I started thinking about them. So civil litigation lawsuits, while there are tort reform efforts in legislatures both state and Congress, etc., by and large these are rules, both substantive rules and the procedural rules and the evidentiary rules, etc., damages, fee shifting, all of these sorts of rules evolved and were created largely outside the democratic process and largely have a life of their own.

 

      The administrative state, of course, which we’re all fairly familiar with as Federalist Society folks, but the ordinary public is less familiar with similar sorts of things where Congress -- my first four chapters are “Legislating Without Congress,” “Administering Without the Executive,” Judging Without the Judiciary,” and “Regulating Without Rulemaking.” And I think this gets to the nub of all of this where we have a situation where Congress is delegating vast rulemaking authority to the Executive branch; 300,000 federal crimes estimated, 98 percent of which were never voted on by Congress in the first instance or to affirm those crimes after they were developed through regulatory rulemaking.

 

      Then, of course, those of us who pay attention to things like the unitary Executive,  “Administering Without the Executive,” something thar’s been very live that we’ve seen recent Supreme Court jurisprudence on involving the CFPB. And we’ve got another case coming up this term that’s somewhat parallel. But one of the contours of that where we have these independent agencies and the current rule under Humphries Executor, of course, of these independent agencies, if they’re structured a certain way, can act with both legislative, quasi-legislative, and quasi-judicial function in the Executive branch, independent of elected presidential oversight.

 

      And then, of course, “Judging Without the Judiciary” goes into the broad questions under Chevron and State Farm where -- and of course, Auer as well, or zombie Auer, as I guess it may be now, but the question of whether we’re allowing -- whether our judges are, in fact, abdicating their role here and leaving ambiguous statutes and ambiguous regulations to the interpretation of these unelected officials in the Executive branch as opposed to doing the judicial job.

 

      And then, of course, “Regulating Without Rulemaking” is where I get in to the second part of the book. There are really four different forces I talk about here, and this germinated in City Journal. Manhattan has a magazine, City Journal. I wrote a piece a couple years ago in the summer called “The Four Horsemen of the Regulatory State.”

 

      And I wanted to emphasize it’s not just a question of the rulemakers, the regulatory authority, but also the enforcers because a lot of my research has focused on things like federal deferred prosecution agreements coming out of the Justice Department that control huge swaths of commercial enterprise without a rulemaking based on sometimes dubious interpretations of wrongdoing, but a whole panoply of remedies that are crafted, none of which would be available upon a successful conviction of the company but which are negotiated by these rulemakings.

 

      And of course, the “Regulating Without Rulemaking” goes into the question of things like the guidance letters under Title IX under the Obama administration that really shaped how universities were behaving and other educational institutions, etc. I talk about the proliferation of crimes and the deferred prosecution agreements.

 

      And then, of course, I talk about the litigators. I talk about the rulemakers, the enforcers, the litigators, and then the four horsemen, or the fourth force. I don’t use the four horsemen moniker in this book. I did in my article, sort of a play on the New Deal jurisprudence. But the fourth force I call the new antifederalists, which I think is something that is important for those of us who are federalists to think about, federalism generally is an important check on central authority. It’s an important check on overregulation.

 

      It’s an important enabler of so-called foot voting. My friend Ilya Somin at George Mason has got a new book out on foot voting. And this is what federalism does. It allows people and capital to move around from state to state so that if taxes and regulations are too overreaching in a state, they can go somewhere else. And it’s not just limited government. If the roads are bad and the schools are bad, that also can cause people and capital to move somewhere else.

 

      But when I talk about the new antifederalists, it’s this question of whether a state or local regime can effectuate national commercial regulation through local action. And so some of the recent things we’ve seen on that are, say, these climate change enforcement actions and lawsuits brought by mayors, brought by state attorneys general. And as I say in the book, nobody in Montana or Alabama or Arizona voted for the attorney general of New York. Nobody in Fargo or in Nashville or what have you voted for the Mayor of San Francisco or the District Attorney of San Francisco. So I think it’s an important thing for us to think about, this sort of upside down, inverted federalism problem where these new antifederalists are effectively dictating national commercial regulation.

 

      So that’s sort of the book in a nutshell. Again, quite different than the police public order race and policing topic of the National Review piece, but I do hope people will check it out if you want to. And The Federalist Society -- you can email me a [email protected]. If you email me and tell me you bought the book, I’ll find a way to sign it if you want. Or if you want to buy the book through me, I can figure out a way to get you a signed copy or something like that.

 

Dean Reuter:  Very good. Well, you’re certainly not shying away from the big issues, Jim. I congratulate you on that. The title of the book, again, The Unelected: How an Unaccountable Elite is Governing America. If you’ve got a bookstore near you that’s open, you can buy it there, but of course, online at Amazon and probably every other online outlet you can think of.

 

      If you have a question for our guest, the lines are open. We don’t have any questions pending, so room for you on the line here.

 

      Back to the race and policing issue, I’m left wondering if anyone out there now is still calling for defunding the police, which I think you alluded to as -- well, I don’t have to characterize your statement. But one thing you do mention in your article is, and you mentioned it in your talk today, that the minority communities are disproportionately visited by police but also disproportionately benefit from policing. If you imagine defunding police, you would take those benefits away from the minority community. So it seems to be an interesting dynamic there. So I guess my question is, are there folks who are still putting forth the idea that police ought to be defunded, or has the movement shifted now to reforming, or what’s the current state?

 

James Copland:  Well, there’s still quite a lot of energy around the defunding idea. It’s one that I think Vice President Biden has helpfully rejected, and so I don’t see a lot of national Democratic leaders pushing this idea. So it tends to be still a little bit more fringe in that regard. But we’ve seen real scalebacks in police budgeting in New York, in San Francisco, in Philadelphia, so in a lot of places with real upticks in crime. And there’s substantial upticks in crime this year, and in a lot of places, last year as well. None of these are quite yet getting to early ‘90s levels of violent crime, but some of them are getting closer, and places like Chicago have gotten quite close.

 

      Now, Chicago hasn’t actually cut back, and the leaders up there, thankfully, have not embraced the defunding per se. But we have a lot of other activity going on in these cities where you get district attorneys who are progressives who are running for office that, while they’re not defunding policing, they’re defanging the police to the extent that they’re refusing to prosecute lots of crimes. They’re refusing to incarcerate. And of course, there’s a difficult overlay here with COVID. No question, there’s some risk in terms of incarceration for individuals, and that makes it a tricky question.

 

      But we’ve seen bail reforms, for instance, in New York, enacted late last year that now allow judges to inquire about public safety in determining bail appropriateness or pretrial detention. And that’s something that I think is quite troubling. There have been other more targeted bail reforms that I think have been reasonably successful in other places. But we see this sort of trend, and then we see these district attorneys — we have one in Brooklyn, there’s one in Philadelphia, there’s one in San Francisco — where you get progressive district attorneys running on a decarceration platform and essentially taking a lot of prosecutions off the table and dramatically reducing the number of prosecutions.

 

      Distinct from whether we’re prosecuting or not, policing matters. Having interactions matters. Having a police presence matters. The Manhattan Institute office is right next to Grand Central Station. I used to take a subway or a train in all time into the office. And if you go to Grand Central Station, there’s a heavy police presence. It’s there for a reason, and it’s a reason why you don’t see violent crime in and around Grand Central Station, by and large. And so policing these public spaces matters, and it matters to have police on the ground doing their job in areas where crime is particularly prevalent. And we’ve seen it time and time again.

 

      That said, part of how something like broken windows policing works, and this is the theory developed by George Kelling, the late George Kelling, Manhattan Institute fellow James Q. Wilson, developed the broken windows theory of policing that enforcing small crimes has a de-criminogenic effect.

 

      And part of the reason why that works is, of course, just the small crimes matter. If you have a lot of broken windows in your neighborhood or graffiti everywhere, or people urinating in the streets, or defecating in the streets, or what have you, it creates a climate of disorder, and it makes policing that much more difficult. It makes compliance with other more serious crimes more difficult. So there’s a reason to enforce those, which doesn’t mean you incarcerate people for very long at all for those sorts of offenses, but it means the police are going to stop that sort of behavior when it happens.

 

      But there’s a sort of side benefit to that. A lot of people who are engaged in these sort of antisocial behaviors, jumping over turnstiles to get on the subway, also are the same sorts of people who may have outstanding warrants. And so what was discovered as these sorts of broken windows policing tactics were tried in New York and in other places is that, lo and behold, you actually catch much more serious criminals when you’re enforcing small crimes too, and you’re able to take them off the streets. But that incapacitation benefit, taking criminals off the street, simply vanishes if, in fact, you’re not incapacitating anyone, you’re not imprisoning anyone, and you’re not incarcerating anyone. So it is a tricky sort of situation.

 

      It’s easy to say in the first instance, “Well, the United States has a higher percentage of people incarcerated than anywhere else in the developed world. That’s awful.” That’s true that -- the statistic there is true. But it’s also the case that the United States has more violent crime than other developed world countries and lower violent crime than, say, other countries in the Americas that have demographic profiles in some regards that are more overlapping the United States than, say, countries in Europe or Japan. And they don’t incarcerate as many people, but they also don’t keep violent crime down as well as the United States does. So there’s a tradeoff in this.

 

      Clearly, I think there are some prisoners that could be released from prison and it wouldn’t lead to a material increase in violent crime. But most criminals who are there incarcerated — we’re talking about imprisonment in the state and federal system — are there for these serious violent and property crimes like murder, rape, assault, robbery, burglary, etc. And these are the sorts of people that, if they’re likely to be recidivists, you don’t keep them in prison, they’re likely to continue that sort of criminal behavior.

 

      So we ought to think about ways to improve rehabilitation. We ought to think about ways to deter crime on the front end through policing. But we shouldn’t have this illusion that, oh, if you could turn 50 percent of all prisoners free tomorrow, which some folks have advocated, that there wouldn’t be a significant increase in serious violent and property crime. And if that’s the case, it’s something that we need to be very skeptical about how we’re doing such sorts of reforms.

 

Dean Reuter:  We do have three questions pending now. I want to turn to those momentarily. Before I do, Jim, I’m afraid that people might not have been ready to write down your email address if they want to be in touch with you about getting a signed copy of your book. I want to ask you to repeat your email address, if you would. The book title, again, The Unelected: How an Unaccountable Elite is Governing America. Give your email address again, if you would.

 

James Copland:  Yes. It is [email protected].

 

Dean Reuter:  I also want to mention that, of course, this is not the first time The Federalist Society has been discussing these issues. It won’t be the last. When we post today’s program as a podcast, we’ll link to some of the other Federalist Society and even some other outside materials. But we’re please to have you with us today, Jim.

 

      With that, let’s turn to our audience. We’re heading in the direction of area code 404. Go right ahead, caller.

 

Caller 1:  Yes. You cited statistics about the decline in the murder rate, but does that flow through proportionately to black Americans versus white Americans? So for example, there’s been a huge decline in the murder rate on the north side of Chicago and in Carbondale, but on the south side it’s about the same. And I’m curious if the statistics -- are you able to tell that kind of thing?

 

James Copland:  It’s a very good question and one I would have to tease out. And I didn’t do it in writing this article to see if there is a disparity in terms of the benefits. There’s no question that there was a disparity in terms of victim status both before and after this decline. But I’d have to look that up, and I can’t answer it perfectly.

 

      The Chicago point is a good one, though, and it’s part of the problem with effecting good reforms where parts of cities are quite safe and other parts of cities are quite dangerous. The voting politics can get messed up here because if people on the north side -- and this is something that has maybe changed some over the summer when you saw all the stores getting looted and the more commercial parts in the north part of Chicago.

 

      But in general, if you’ve got a lot of people in neighborhoods that are quite safe and others where the crime is quite concentrated, as is it in Chicago, and in a lot of cities in other places, there may be an under-allocation of resources toward policing precisely because the beneficiaries are in those communities who have significant but certainly not majority voting authority. And the rest of the folks really aren’t going to feel the effects of that crime.

 

      It’s not that dissimilar to something like education where people worry about what their schools locally look like, and they’re not necessarily going to vote for increased education funding or for, I think more appropriately, education reforms that would lead to better outcomes in other neighborhoods where their kids aren’t going to school. So it is, I think, a problem. But I don't know the answer to exactly how much it tracks through. I’d have to look it up. It’s a good question. I’ll write something else about it.

 

Dean Reuter:  We've got two questions pending now. If you’d like to join the queue, we might have time for a third.

 

Caller 2:  Yeah, I apologize. I missed most of the presentation. There’s a question I’ve wanted to ask. Did you address how much -- how you do or try to improve the communication and relations between the high crime inner city areas and the police because that’s one area where everyone would benefit from that. Obviously, many people have thought that this is really important to do, but I has not worked terribly well. And clearly, the race of policeman itself could be a factor there, definitely. But I’m wondering if you could address that. And if you have already, please ignore it because I apologize for the repetition, but I think you might not have.

 

James Copland:  I didn’t get into it in detail, and I think it’s exactly right. I think there’s a big, big problem and a cost to some of the messaging that’s out there. But let’s be realistic. This is nothing new in terms of the anti-police mentality rhetoric thought process in many of the highest crimes inner city areas.

 

      I think it’s important to understand the polling data I talked about, the majority of folks in these fragile communities, black or white, but particularly black Americans want more policing, not less in their communities. And the vast majority want as much or more policing, black Americans, in their communities. So I think there’s a little bit of an overblown assumption that we don’t want the police here in these communities.

 

      That said, this is nothing new. Ice-T got famous with the rap song “Cop Killer,” what was that, 28 years ago, some time ago. And you have to -- you can look back to the ‘60s and some of the various riots there were very much related to the police. So I think this is an ongoing issue of concern.

 

      It’s why I think Senator Scott is to be lauded for an approach that focuses on training, and I think all localities ought to think about training as well as think about the mechanisms, for lack of a better word, being able to weed out bad actors. And this is something that civil service contracts and/or union contracts in various cities can make more problematic. It can be difficult to weed out bad cops. There are ways to think about restructuring that, but they can be difficult to do.

 

      The Camden, New Jersey, example is one that’s often come up, and that was originally brought up, oh, this is a defund the police example. They eliminated their police department and started over. Well, there’s some truth to that, but part of why they were doing that was to get rid of the police contracts, but they certainly weren’t defunding the police. They increased substantially the actual number of officers on the ground, which is one reason why crime went down in Camden after that happened.

 

      So I think that training and disciplinary mechanisms are important, and recruitment. And this is where those of us who are committed to more race blind laws, norms, etc., ought not be insensitive to the fact that things like race identification matter. Things like use of force matter.

 

      And the use of force could cut in either direction. When we see a statistical disparity in use of force that exists for white officers with black suspects to a higher percentage degree than it does for white officers with white suspects, but also the gap disappears when it’s black officers with black suspects, that could cut in either direction. It could be that the officer is behaving differently. It also could be that the suspect is behaving differently.

 

      Clearly, being a black police officer doesn’t mean you’re immune to abuse from potential suspects. We've seen video clips of it over and over again. But in the aggregate, as you start looking at this, it can make a difference. So I think recruiting fairly aggressively to try to make sure that it’s not a bunch of white officers enforcing the law in inner cities that are overwhelmingly black or Latino I think is something cities ought to think about. That being said, we see cities like Baltimore with black officers, black leadership, etc., and some of the same problems recurring.

 

      So to some degree, this may be -- these sort of tensions may be inevitable, but I think that the best way around it is to cut the crime in the first instance, which is having good, well-trained officers and not underfunding police departments. Part of the notion here is, oh, we can cut police budgets and have other people do some of that stuff, and that is not always the case. The first time traffic enforcement, if you want people who aren’t cops doing that, the first time someone takes a gun out on someone who’s not prepared to defend themselves or not trained for that situation, you could have a big problem on their hand. And the same thing with all sorts of things that police officers do.

 

      It doesn’t mean that the cops couldn’t be a lot better trained, but a lot of the biggest problems we see, I think, are cities where the police forces are underfunded and under-resourced. And when you have police forces that are historically much better funded and able to allocate resources aggressively toward hot spots like the NYPD does, and obviously New York has economies of scale no other city in the country has, but when police forces are able to do that, you tend to see much better results, which, again, doesn’t mean that you’re not going to have problem episodes.

 

      And I think communicating that to the broader public, that with 330 million people, you’re going to have problem episodes, you’re going to have bad cops, you’re going to have things that look bad, and you’re going to have things that substantively are bad that happen when you have that many folks. But let’s be aware that over time, in general, you’ve seen some very positive trends in terms of reductions in lethal uses of force by police against suspects and not to -- while we want to strive for protection, not to have a fantasy that we aren’t getting better in many regards, even if we’re not perfect on this.

 

      So for instance, in 2019, 14 unarmed black Americans were killed by cops. Being unarmed, of course, doesn’t necessarily mean they weren’t a threat. But that number is tragic in every instance, but also small relative to a country of 330 million people in which 51 people last year, for instance, were killed by lightning strikes.

 

      So for people to actually try to think about that, it’s hard for people to think about those statistics. And when you see something that is affirmatively deeply disturbing like an officer putting his knee for eight minutes on the neck of a suspect and the suspect dies, when you see things like that, it shocks people, understandably, and inevitably, there’s going to be some sort of reaction.

 

      But I think to try to be able to tell people to weigh these costs and benefits is one thing I want to do because we want our police to create safer communities, and part of that is police doing a better job of, while protecting themselves, not unduly harassing individuals or interacting in negative ways with individuals who may be innocent of offenses. And that can be a tricky thing to effectuate when you’re allocating your cops into the worst neighborhoods with a lot of violent crime and they’re regularly facing very hostile publics.

 

      It can be trying for anyone. I see these videos of these students, the young people, disproportionately white young people wearing masks, etc., yelling at the cops’ faces and doing all these sorts of things, and I’m just blown away by how, generally, these cops are able to sit there placidly and take this sort of  abuse. It’s not something most of us, I think, could do. Being able to deescalate these situations I do think is an important part of where we need to go.

 

Dean Reuter:  We’ve got about five minutes left. Looks like a final question here. Lets’ see if we can get this in.

 

Caller 3:  Hello. I apologize. I think you kind of touched on what I wanted you to talk about, but I know that you spoke a lot about how African American men have a higher chance of having a police encounter. I wanted you to speak toward restructuring funding towards training and educational programs to reduce the negative encounters that innocent individuals have.

 

James Copland:  Yeah, I think it’s a big problem. And I think one of the things I really wanted to emphasize in this little piece I wrote for National Review is that the average individual, as I said, is not a serious violent or property criminal. They’re just not. And yet, if you live in a neighborhood that’s violent, you’re going to have a lot more police interactions.

 

      And if you’re a black male, even if there’s not racial profiling -- and I’m not suggesting that there’s none. There obviously is some in some places. But even if you’re not, you’re more likely to have happen to you what happened to Senator Scott or what happened to tennis pro James Blake. I’ve been at the Grand Hyatt hotel many, many times. The probability of me getting tackled by cops there is very, very low relative to the probability of him getting tackled by cops there. Neither of us has a huge probability of that happening, and in this case, it was based on a witness identification that was off.

 

      But training cops in the ordinary case to think about the fact that if they are engaging with a black male who may be a suspect, may be a prospective witness, may be somebody they’re trying to get information from, but not all police interactions are with a suspect, but that individual may be viewing the police with some level of hostility — that’s self-evident to many of these cops — but understanding that they may be like Senator Scott. This may be the sixth or seventh interaction with a police officer in a given year. Oh my goodness, not again.

 

      And understanding that and training how to engage -- is it going to have a statistically significant impact on lethal use of force encounters with the police? I don't know. I’m skeptical that it likely will, in part because those tend to be rare. Most lethal use of force encounters tend to be when there’s an exchange of gunfire or a situation where the lethal use of force is obviously understandable, although even those can be highly controversial, particularly when someone who is caught in the crossfire -- I mean, look at the Breonna Taylor case, which is obviously reeling lots of communities right now where, in fact, by admission, the boyfriend of Breonna Taylor had fired at police first, again, doesn’t suggest that the warrant was properly issued.

 

      Lots of things you can talk about in terms of the case, but the basic principle that a police officer fired upon can return fire has to be one that we acknowledge if we want to have any policing whatsoever. And obviously, you can’t say, well, police just have to run in there and get shot at and do nothing and not be able to protect themselves. You wouldn’t be able to have policing with that sort of situation.

 

      So in these situations, you have to think about are we unduly creating scenarios in which these sorts of tragedies are more likely, and if so, how can we mitigate those? But I do think that training police, particularly on things like the cross-racial identification and how we engage with individuals in the ordinary case, and then how do we view that depending upon whether the person I’m interacting with is a real suspect or is someone who we’re just trying to get information from.

 

      All these things can make a big difference, and they’re somewhat endogenous. In other words, if the police do just a little better on that, then people in the community will be less likely to have a hostile attitude to the officers. So I think these sorts of community policing and other sorts of tactics are ones we ought to think about. When we test them empirically, we ought to look at them. We ought to be careful of this. We don’t want to in any of these sorts of situations move so radically that we throw the baby out with the bathwater.

 

      I do think that one of the -- perhaps the most significant public policy success in the United States over the last three decades is this remarkable reduction in violent crime, and it has really changed our society for the better. And we don’t want to radically undo that, which doesn’t mean that we can’t think about various ways to reform our policing and legal structures in a way that undoes some of the negative side effects of that, which are particularly acute for black men who are much more likely to be false positive victims as well as false positive suspects and individuals of interest in criminal investigations.

 

Dean Reuter:  Well, Jim, I’m afraid -- this is Dean again. I’m afraid we’re going to have to leave it right there. You’ve done a great job. We’ve gone a little bit beyond time. I very much appreciate you being with us today. One final time, the unrelated book on administrative law, but still very interesting, The Unelected: How an Unaccountable Elite is Governing America.

 

      I want to thank Jim Copland for joining us today and sharing his time and his thoughts. I also want to thank the audience for dialing in and for your thoughtful questions. A reminder to the audience to check your emails and check in with our website about the next scheduled teleforum conference call, which I happen to know is today at 2:00 p.m. But until that next call, we are adjourned. Thank you very much, everyone.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.