The Biden Administration on Policing: What's the Verdict?

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Rising homicide rates, challenges in fully staffing police departments, and a shortfall in trust between some communities and law enforcement agencies have focused attention on whether and how the federal government should respond. This session will examine the Biden administration’s record on policing during its first year in office and, most importantly, the path forward. In light of stalled congressional talks on policing legislation and constitutional limits on federal power in this traditionally local area, what can and should the administration do in areas such as pattern and practice investigations, use of force, certification and de-certification, training, and qualified immunity?

 

Featuring:

Andrew McCarthy, Senior Fellow, National Review Institute and Former U.S. Attorney

Renee Mitchell, Co-Founder, American Society of Evidence-Based Policing and Senior Police Researcher, RTI International

Marc Levin, Council on Criminal Justice, Moderator

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

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 fedsoc.org.

 

 

Evelyn Hildebrand:   Welcome to The Federalist Society’s virtual event. This afternoon, February 9, we discuss “The Biden Administration on Policing: What’s the Verdict?” My name is Evelyn Hildebrand, and I’m an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.

 

      Today we are fortunate to have an excellent panel, moderated by Mr. Mark Levin, whom I’ll introduce briefly, and he will then introduce our speakers for this afternoon.

 

      Mark is the Chief Policy Counsel for the Council on Criminal Justice, and he’s also a Senior Advisor for Right on Crime. He is also a member of The Federalist Society’s Criminal Law and Procedure Executive Committee practice group. So we’re delighted that he can join us this afternoon to moderate the discussion.

 

      After our speakers give opening remarks, we turn to audience questions. If you have a question, please enter it into the Q and A feature at the bottom of your screen, and we’ll handle questions as we can towards the end of the program this afternoon. But you can enter those questions at any time. So please do in the Q and A tab on the bottom of your screen.

 

      With that, thank you for being with us today. Mark, the floor is yours.

 

Mark Levin:   Well, thank you. And I couldn’t think of a more timely topic for us to be discussing, given the rise in homicides and certain other types of violent crime, as well as shortages of police officers in many jurisdictions. And really, I think, one of the challenges we’re facing is to define the federal role in policing, given that there’s 18,000 police departments, and it’s traditionally a local function, and then, furthermore, distinguishing between what’s the appropriate role for the administration Executive Branch relative to Congress.

 

And, of course, we all know that legislation on policing is stalled and probably won’t be acted upon in the near future in Congress. So one of the ways I hope we can frame the discussion––and I’ll provide a bit of an introduction on several issues––is to look at areas of continuity and divergence, comparing this administration with the prior administration.

 

      And I would like to first introduce our panelists, and then I’ll give a brief rundown of where I see some of these areas of continuity and divergence. But first of all, let me introduce Renee Mitchell, and she served in the Sacramento Police Department for 22 years. She’s a leading researcher on criminal justice and has published numerous books on this. She’s been inducted into the George Mason Evidence-Based Policing Hall of Fame, and she is head of the Society for Evidence-Based Policing. She’s done a great deal of research, including as a Fulbright Police Research Fellow on juvenile gang violence and many other topics, including how police can most appropriately use force and also protect the community while making sure that they use best practices. She’s also an expert on crime prevention, and she provides technical assistance to a range of agencies through RTI International.

 

So we’re very pleased to welcome Renee Mitchell and then, also, Andrew McCarthy, who, of course, is contributing editor at the National Review—a prolific author. He’s also Senior Fellow at the National Review Institute, a Fox News contributor, and, of course––very importantly, for this discussion, was Chief Assistant US Attorney in the Southern District of New York, was involved in many important prosecutions, including terrorist leaders, as part of the war on terror, and including cases connected to the World Trade Center bombing in 1993. He has over 20 years of experience as a prosecutor and has written extensively on policing issues in the National Review, and just about written extensively on everything else, I’ll say, as well.

 

      So let me first -- I think folks will find it very interesting to go back and look at an executive order that President Trump issued in June of 2020. It addressed credentialling, decertification, use of force. And so, that came, of course, right on the heels of the murder of George Floyd, and the order had some really notable provisions. It said the attorney general should only allocate discretionary grant funding from DOJ to law enforcement agencies that have obtained, or in the process of obtaining, independent credentials from a certified independent credentialing authority by the attorney general.

 

And actually, I just looked, and what’s interesting is there’s a cops -- a federal cops grant solicitation that went out in the middle of last year, and it referenced this executive order and said that only those agencies that are in compliance with it could be eligible for the grants. And part of the executive order also dealt with use of force policies, including choke holds, and it said that the independent certification body would be required to limit those to where it’s necessary to preserve the -- to save the life of the officer involved. So it had some real teeth to it, and then it also said discretionary funding could only be given for agencies that comply with reporting use of force data to the federal government. Currently, only about 27% of agencies report that data to the FBI.

 

So there’s a real continuity, in many ways, between what we’re talking about today and -- of course, as some of you may have heard, the Biden administration, over the last several weeks, has been shopping around language for an executive order, and there’s really a fair amount of overlap. So one of the things, I think, as we look back on June 2020 -- some people might see it as a high-water mark because, of course, the policing reform discussion hadn’t yet been, I guess, infused with some of the -- what we’ve seen in the preceding year and a half where we’ve had, obviously, this increase in violent crime. We’ve had staffing and morale challenges in police departments. And we’ve also had -- we, obviously, had substantial unrest in that summer of 2020 that preceded. So the June 2020 date, I think, is interesting as we think about how the public perception of this issue has evolved since then.

 

But nonetheless, a lot of states have also acted—and I hope that we’ll take a look at that—because a state like Utah, for example, has adopted––virtually unanimously in their legislature––a lot of model policies on officer wellness and training and so forth—use of force. And I actually used those to inform a couple of model policies of the American Legislative Exchange Council that were approved in December of 2021. So the federal government is, by far, not the only game in town on this.

 

      So just going through a few issue areas that I think -- where we could, perhaps, see either continuity or divergence, spending is certainly one that I think there’s continuity. Obviously, we’ve had a great deal of grant programs, and the administration has proposed to increase those further, particularly as it relates to crime prevention initiatives, like focus deterrents and street outreach, as well as just funding more cops. The proposal would be to fund another 2,500 officers. And, of course, this goes back to the Clinton administration and some of the 100,000 new cops pledged at that point, and then some of that money wasn’t sustained over time. So it’s a complicated issue. But there seems to be wide agreement there.

 

      One area where we’ve seen a shift is on pattern-or-practice investigations. Last year, the Biden administration announced pattern-or-practice investigations in Phoenix and Louisville, and, certainly, there have been concerns by critics as it relates to federalism, and I think that that will continue to be an area of controversy.

 

      One area of continuity, I think, is the qualified and sovereign immunity issue, and there are actually a few cases at the Supreme Court, Mohamud vs. Weyker, where an officer was found by lower courts to have fabricated facts, and the question is whether a suit can be lodged for money damages, despite the Biven’s Doctrine. And there’s a similar case, Egbert v. Boule, that’s also at the Supreme Court. And the administration has continued to––as was the case during the Trump administration––side with the officers in those cases and against the ability of the plaintiffs to recover civil damages.

 

      Use of force is another area that, again, does fall in line, to some degree, with the executive order that I mentioned from the Trump administration, but there’s also been some additional developments. Last year, the Department of Justice announced it had prohibited its officers from using chokeholds and neck restraints except where lethal force is justified. It also discontinued something that’s very timely this week—no-knock raids by its agent, unless an officer reasonably believes that announcing entry would endanger the officer or another individual.

 

      One notable fact is those internal policies have not been extended to other federal agencies. And as we all know, lots of federal agencies––even the EPA and Department of Education––have cops, albeit not that many. So that’s something to look at.

 

      And then, finally, military equipment transfers, which was something where the Trump administration, in 2017, rolled back some restrictions that had been put in place under the Obama administration, which basically said that for heavy-duty military equipment, like tactical armored vehicles and explosives, could only be transferred if the requesting agency documented a need for the equipment, agreed to federal oversight, and provided relevant training and that -- there has not been any action on this administration yet to return to the Obama approach on that.

 

      So I think that, really, it’s a complex picture, as we can see, from my perspective, where we see both areas of continuity and divergence from the prior administration.

 

      So at this point, I’d like to first turn it over to Renee, and then we’ll go to Andrew -- for their opening comments. And then we’ll have time for audience participation. And, hopefully, we’ll come away with a better sense, not only of what has been done but also where the administration should go on policing in the coming years. So, Renee, thanks very much for joining us.

 

Renee Mitchell:  Thanks for having me. And that was a lot. I think I’d have to do a massive checklist to go over every topic, and I definitely don’t want to spend 20 minutes on an opening statement. Personally––and this comes from experience and then looking at the research––what I would like to see and what would be nice to see is to really watch the administration use the research to support the direction that they’re moving in because what I think we have seen quite a bit of is the pendulum swinging back and forth based on politics of the public or what’s happening. And everybody’s talking about it right now––about how the homicides are in an uptick. And you’re going to see the pendulum swing back the other way to be tough on crime. And I think sometimes when politics get in the way of what we know works or what we have good evidence of––that might work for social policy; that might work for helping people move out of poverty, those types of things––it gets distracted by the groups that could use this anecdotal information to drive their view on what should be occurring out in the field.

 

And that was one of the things -- if you look all the way back into 1967 when––and I’m going to butcher the name because I do it every time––the Katzenbach Commission was put together, if you look at the overview in that outline, they really laid out a good plan for research, for developing what is now called the National Institute of Justice. They advocated for every large police department in the country to have a research arm within their department to really be looking at, are practices really effective and efficient. And, if you think about since 1967 to where we are now, had we been following those things, we might not had to have had chokeholds continue for so long. Some of our riot and crowd control processes might not have been still the same way, but there’s no funding mechanism to really have the same amount of research that we do in the medical field.

 

So for me to try to take everything, that whole big broad checklist that you threw out there -- for me, I think it all could be tied in, to a certain extent, if you looked at the underlying research for those topics and then let that drive where your funding should go, where your recommendations and your policies should go. And you could probably—just like you said, Mark, where Trump had some things that seemed to align with Biden -- you could probably, really align those things along what the research is really pointing us towards.

 

Marc Levin:  Oh yeah, before we go to Andy, I just was wondering if you -- on some of these practice issues, to what degree you see police agencies – many of them have evolved their own policies and, of course, you’ve got some that – I think there’s a number that there’s 5,000 or 6,000 agencies that have 5 for less officers.

 

Renee Mitchell:  Yeah.

 

Marc Levin:  So how do you see this -- what the best approach is to account for the real heterogeneity of the law enforcement field?

 

Renee Mitchell:  Well, I think it might be pushed by more of your private sector versus your -- I mean, public policy is always going to push it, but because you have so many small agencies that are actually looking to -- groups like Lexipol or Nexus, where they are pushing your canned policies out to smaller organizations that don’t have the staffing or the administrative support to help them with their policies. And they’re just using what is known by the bigger agencies to adopt those to their own organizations. So that’s another area where it’s not just the government. Just like you said, it’s other outside factors that are kind of helping groom that and push them towards a best practice, which I always say is just a common practice if you haven’t tested it and evaluated it. So I don’t know if that actually answered your question, but I think that’s kind of where we’re headed towards.

 

Marc Levin:  Sure, and one of the other things I’m wondering -- have you seen any examples where the reporting requirements, like to be eligible for federal grants -- from a philosophical perspective, it seems fairly unobjectionable—it’s an accountability aspect. But from a practical standpoint, if you have a department with a staff of five people or something, I don’t if they could go into a collaborative, a cooperative with other nearby rural departments. Have you seen any collaboration like that to get economies of scale and also deal with whether it's a state or a federal grant and some of the paperwork things that just come about?

 

Renee Mitchell:  So, not yet. And you bring up a really good point because that is something that we’ve seen through our research trying to work with agencies within North Carolina. And they were looking at, how do you try to evaluate their calls for service? How do you desegregate what calls should maybe go to the police and what calls could maybe be answered by non-sworn personnel or a third party outside of the city -- you know, where are the city’s responsibilities? And what we’ve been finding over and over again is a lot of the cities, their systems that they have for calls for service or their report management systems are not great for pulling data.

 

      So besides not having staffing at small agencies, you might also have systems that are legacy systems that the city was able to purchase 10 years ago that doesn’t even have the ability to collect the data that they need to be reporting on or the staffing to pull it out with the knowledge and the wherewithal to get that to the federal level.

 

      So that’s the other piece that I think -- sometimes we have these ideas of what the policy should look like, but nobody takes into consideration, what is all the friction that keeps agencies from abiding with these policies. And I think a lot of times, the perception is, “Oh, the cops are unwilling.” Right? Like they’re being obstinate. They don’t want to give the data versus there is a lot of friction in the system that really keeps them from doing the things that they possibly want to do, but they’re incapable of doing it because they don’t have the knowledge, they don’t have the skill, they don’t have the systems, all of those things. And we don’t build in a funding mechanism for them to build -- like you were saying, like a consortium. There’s no funding mechanism to say, “We know you all have these small agencies. How do we help you create the systems or create the knowledge base that you could pull out your data and give access to the federal government?”

 

Marc Levin:  Right. And then, of course, the bigger backdrop is, of course, mayors and police chiefs, they --

 

Renee Mitchell:  Yes.

 

Marc Levin:  -- want a higher percentage of their officers on the street, not people sitting at a desk.

 

      So, Andrew, let me turn to you, now. I know you’ve certainly identified some areas where the administration, in your view, could be doing a better job on this and, so, I’m eager to hear your thoughts.

 

Andrew McCarthy:  Well, thank you for having me here today. And I want to begin by echoing a lot of what Renee had to say. I was a prosecutor for a very long time, and I happen to be of a conservative bent. But I was a prosecutor in New York City where my friends and coworkers and colleagues, who I investigated and tried cases with, were mainly liberal democrats. So it’s dismaying to be in the thicket that we’re in at the moment because I must say -- and I’m not saying this just to try to turn it into something more idyllic than I should, but it really didn’t matter -- other than, like, having beers on Friday night, it didn’t really matter what peoples’ political bent of mind was. Most of that stuff -- all that stuff, got checked at the door when you were doing your job, and we really were pretty clinical.

 

And this was my experience also dealing with the local district attorneys’ offices, as I had to do more over the years. They’re pretty clinical and pretty professional about the idea that the job is to figure out what the facts are and figure out what the law is and apply one to the other, and it really shouldn’t matter anymore what the political bent of mind of your prosecutor or police investigator is than your chiropractor. It just shouldn’t matter. And where the work is done—as opposed to sometimes in the more airy places where policy is made—the people have a real incentive to do things the right way and to use best practices.

 

Now, I think the problem with policing is it’s as human an endeavor as you can imagine, and it’s virtually impossible to make antecedent rules for all of the different contingencies that an officer is going to meet on the street. But I think sometimes -- and this isn’t a shot at the Biden administration––I think this is a general comment about the division of authority here—but sometimes, the caboose is driving this train, in the sense that the federal government––because of the way funding mechanisms work––has the capacity that the locals and the states don’t to entice people into preferred federal practices because they can dispense funding in a way that the other entities can’t. But we shouldn’t assume from the fact that they have that latitude that the federal government, necessarily, has insight into what the best practices were.

 

I think Marc said, at the beginning of our discussion, there’s 18,000 police agencies in the United States. That would be, if my math or if my memory is correct, it would be about 4,000 more police agencies there are in the country than FBI agents in the FBI. You know? I mean, most of the experience that we are gathering––and the data that we’re gathering to figure out what best practices are––are being generated from the ground up by local and municipal police agencies, not by the federal government. And what they understand––in a way, I think, Washington often doesn’t––is that those practices are very much affected by local conditions. There is not a single template that they could come up with in Washington that’s going to resolve itself to perfect policing every place in the United States.

 

That doesn’t mean that we can’t say things like, “Chokeholds are a bad idea, unless you really have to use them.” But I think we ought to be modest, and I say this as -- I was a deputy US Marshall for about five years before I was a federal prosecutor, so I did come to know the government in a variety of different law enforcement capacities. And what I would stress is, I think we ought to have modesty about what it is that we can learn and teach at the federal level. And there ought to be a lot more openness to the ideas that are generated upward rather than prescriptive imperatives going downward.

 

I also want to make an important distinction––and I guess if you guys were up in the New York area, it would be hitting you over the head like it’s hitting us over the head up here––that there’s a big difference, and one that we have to take note of, between policing and prosecution. I think that if you look at what’s happening in New York City now—just to take an example because I think it’s a teaching moment for other parts of the country, as well—if we could just observe politics for a moment rather than to politicize­­, I think that Eric Adams distinguished himself from a wide democratic field in running for mayor by being very aggressive on the idea that crime was the biggest problem in the city right now, and that he, having been a police officer––notwithstanding that he thought as progressive as the most progressive progressive in the race––he felt very importantly that law and order and the projection of law and order was important to have a flourishing society and to do all the things that progressives or anyone else want to do. And he was elected, I think, largely, because of that—because crime is a problem in the city right now.

 

Now, a lot of times, I think we can overrate how much of a problem it is. It’s a problem. It’s on the rise. At the same time––and I say this as somebody who grew up in The Bronx in the bad old days of the '60s and '70s––we had 485 -- I know murder is overused as a stat, but I think it tells the story here. We had 485 murders in New York City last year. That’s very alarming because it’s a big uptick from 2017, where we actually had less than 300 murders in the city. But in 1990, we had 2,200 murders in New York City. And going back over the statistics a couple of days ago, I noted that from 1969 until 1995, there were at least a thousand murders a year in New York City, and most years, it was considerably above a thousand. In many years, it was 2,000 or more.

 

So I don’t want to get carried away with how bad things are in the city, even with a sharp uptick where there’s five times fewer homicides in New York today than there were 25 years ago. But also, it took a long time to drive crime down, and I think we learned a lot of lessons about how to do it which were not partisan, political lessons. They were mainly on the ground, practical lessons about being able to mobilize the intelligence that the police collect so that you could dispatch cops to the places where crime is beginning to surge so that it doesn’t spike in the first place. And there were, obviously, problems with the way that that was done, but I don’t think you can address the problems and not lose sight of the reality that the best policing is intelligence-based policing.

 

And you obviously have to be cognizant of people’s civil rights and put in the protections that have to be put in so that the police have the confidence of their communities. But at the same time, the way you do policing has to be driven by intelligence and data. It can’t be driven by political storylines or disparate impact theory or whatever voodoo is popular on whatever particular day. And the reason I mention New York City and the distinction between policing and prosecution is what Mayor Adams found when he became Mayor Adams rather than Candidate Adams is that it’s nice to be able to choose the chief of police, but the district attorneys are separately elected officials who the mayor doesn’t have any control over. And the police and the mayor can be as aggressive as they’d like to be about crime. If the prosecutors won’t take the cases, and if they’re not committed to enforcing the laws as they’re written, you’re going to have a big problem with policing that the police are not going to be in a great position to do anything about.

 

So I think the biggest thing -- we often overrate what the federal government can accomplish here, for the very reasons that we discussed at the beginning here. I think the biggest contribution that the Biden administration can make is to encourage prosecutors to prosecute the law and to recreate an ethos where we are actually supportive of police rather than putting them in fear that if they have to use force to arrest someone, it’s at least as likely that they’ll be prosecuted for criminal assault as whoever it is that they’re trying to arrest.

 

If you don’t have a situation where the police believe they can do their job -- and I’m not saying to give them latitude. I think you mentioned immunity. A lot of that stuff, obviously, has to be addressed. Best practices has to be addressed. Discipline has to be addressed. All that is true, but at the end of the day, the police have to feel like they can do proactive policing and, particularly, that they are not going to be -- on the basis of how the statistics of who gets prosecuted come out, that they are going to be accused of having impure motives in going about their jobs. They have to be able to take the intelligence that they derive from patrols and from questioning of suspects and use that data to move police to the places where crime is becoming problematic before it spins out of control. And if you don’t create an environment for that, I think we’re going to have enormous problems.

 

Marc Levin:  All those are really keen insights. And let me ask you––and, Renee, I’d like your opinion as well––do you think there’s a problem in terms of police pulling back, not being as -- I don’t know if aggressive is the right word––you said proactive––but really looking for focusing on hotspots, for example, where -- when I was, obviously, with CompStat, a major advance. And/or do you also think, perhaps, that -- I know clearance rates have declined for homicides from, used to be 80% and now it’s 50% and much lower for other types of crime, but is there -- in communities where there’s not perhaps as much trust as we would like between police and the community, is there a problem with witnesses not coming forward, maybe even victims not coming forward in terms of sharing the information needed to solve crimes? And so, perhaps a result of all that is there’s -- somebody’s less likely to be caught so they continue committing more crimes, and we see the statistics continue to add up. Is that --

 

Andrew McCarthy:  Yeah.

 

Marc Levin:  -- do you see both of those problems? [Inaudible 30:17}

 

Andrew McCarthy:  I mean, I’m sure that Renee probably knows what the data says better than I do, and I do think that an often-unseen part of this that we have to take into account is that a lot of police are leaving departments, which has a lot to do with this as well. But obviously, if you create a situation where the police have to be very concerned about discipline and where progressive prosecutors are being elected on a platform of investigating the police while decriminalizing a lot of what we think of as traditional crime, that’s going to convey a pretty serious message to the police about their behavior. And I think it’s had the predictable results as far as a lot of street crime is concerned. So, yes, I think it’s an enormous problem.

 

Renee Mitchell:  And, Marc, to answer your question, I think -- and I hate when people say this answer, but I think it depends. I think it depends on where you’re working—what state, what city you’re working, whether you’re working in a sheriff’s department or a police department because just like Andrew said, sheriffs are elected. So a lot of times you see -- within a sheriff’s department, it seems like those agencies aren’t run by politics as much, whereas with most police departments, a police chief is an at-will employee who, one bad shooting, one bad officer who has stolen something, behaved inappropriately on duty that the police chief didn’t have knowledge about or any kind of shady business, that could be the end of their career by the very next day. You’ll hear police chiefs talk about the fact—especially in California with the retirement system there—they don’t want to become police chiefs too young because it’s too long of a period of time to make sure that they don’t get fired and then end up with no career and no pension.

 

So, I think, on the part where people de-police -- like I said, I think it depends on the city you’re at, and I also believe that most police officers are still trying to do their jobs to the best of their ability with what they’ve been given. So they’re not going to go to a call for service where a citizen has been harmed or victimized in some way and not make an arrest even if it’s going to look bad for them or it’s uncomfortable. They’re still going to try to do what they can do.

 

      The being proactive, I think that’s where your police leadership comes in. Your leadership has to be comfortable with the direction they’re taking and be able to explain through data -- there’s enough evidence-based research out there to be able to say, “We’re using a focused deterrents approach. We’re using hotspot policing, and these are shown to be effective measures without being biased or discriminatory.” But it depends on your leadership. You have to have the leadership within your organization that is comfortable with that in saying, here’s why we’re doing what we’re doing and to be able to back it up with data and research.

 

But you do see -- like Andrew mentioned, you do see the officers leaving, and I think it’s because -- and it’s not -- I think people think it’s because cops feel like they’re not being backed up personally. I think it’s much more -- when you watch citizens be victimized over and over and over again because they’ve gotten rid of bail or misdemeanors aren’t going to be prosecuted anymore, and somebody’s out within two hours and back out stealing cars, and you arrest them, and they’re back out two hours late and still victimizing your community, I think officers get that feeling of, “What am I even doing. I can’t even keep my community safe because you’re the same person who is on probation that has stolen three cars in one night.”

 

And I think that’s where citizens’ perception of, “Oh my gosh, we can’t keep up all these people in jail. They have addictions, mental illness. They’ve had a hard life, and prison’s not the right place --” but you also have three victims in one night who their livelihoods could have been destroyed because that was their only transportation that they had. They might not have insurance for that vehicle. That was their only way of getting to work. That was their only way of picking up their children. And it seems like the lens has shifted to forget about the victims that are in the wake of all of this.

 

And one of the things I actually think that the Biden administration could do that I think leans in whatever direction of politics, would be to support the D. A.s and the public defender’s office because often -- let’s take away cash bail because we can’t have people sitting in jails for long periods of time. But the one thing I have seen in my years as a police officer is you see both D.A.s and the public defender’s office where you’re showing up that morning on a case, and they’re like, “I just got this case today.” And it could be a great bodily injury, like a really important case. They got it that morning because somebody else had to get it off their caseload, and they’re interviewing all of the officers. And I assume the same thing’s going on for the poor defendant, that they’re getting the same kind of treatment of, “Hey I just got your case as a public defender because I have 40 other cases behind yours.” So that’s where I could see, if we’re going to support a social system of not wanting to just jail everybody, not wanting to have this, it’s easier to plea deal because it takes less time, then support the system of our prosecutors and our public defenders so that way people are really being represented properly and not just shoved through the system. And then -- and I’m sorry I’m taking up so much space.

 

Marc Levin:  Oh, no.

 

Renee Mitchell:  As somebody pointed out in an earlier discussion today -- that our criminal justice system is really not a system. Right? There are all these pieces that don’t connect between the federal, local, state—they’re not interconnected. And then, when it comes to our social services networks for both victims and defenders, there’s nothing connected to the prosecutor’s office very well. There’s no tracking of any of that information. And so, you just have both sides. And we’ve shown with the research that a lot of times, victims become offenders. And offenders are future victims.

 

Living in poverty and living in some areas of the city and living in certain lifestyles doesn’t mean you’re, like -- it’s a clear-cut one or the other. Often, it’s a mix. Right? And we’re not really properly supporting the services or the way -- the treatment that they should have. We’re just -- “Let’s throw another program at it. Let’s throw violence interrupters—Scared Straight, DARE.” What are the other list of programs we’ve had since the '60s -- GREAT, Say No To Drugs. We love programs that have a title that’s going to be the end-all be-all cure to crime, drugs, mental health, what have you.

 

Marc Levin:  Yeah. Now, that’s a really great point, and I think it’s overlaid on the backlog that we have. And I’m talking to you from Harris County, Houston. There’s 100,000 cases backlogged. It’s similar in Seattle, Atlanta. And so, when you don’t have a speedy trial, or even anything approaching it, that puts a lot of strain on prosecutors, defense lawyers, and you’re faced with a question of having someone who’s not yet convicted languishing in jail or maybe not getting the right intervention if they’re released pretrial, which was the default under the Constitution.

 

And I’m also interested in -- I think, part of what you brought up raises the question of, like, feedback mechanisms for officers, particularly those that are assigned to a particular neighborhood. If the prosecutor, for example, told them later on, as the case moved forward, “Okay, well, we determined this guy is seriously mentally ill, and if you see him again, here's what we’re doing and all of that --” and I think, as you said, they just keep encountering, often, the same person, and they don’t know if anything has been done to actually try to address the causes of them committing crime if they’re not going to be, obviously, taken off the street. So those are really good points.

 

      We have a question I wanted to pose from someone in the audience, Alexander Phipps [sp]. He asked about the FBI’s -- about federal use of force data and whether it would distinguish between lawful force versus force that was found through -- whether a court case or an internal investigation or independent oversight found to be excessive -- so whether the public would get a representative view of that.

 

Andrew McCarthy:  Well, I think that when they collect the data, all of that is what they collect. Now, at the margins, you’re going to have some cases where you have the correct decisions by judicial officers, and they work their way up the appellate chain. That, probably, is a wash overall. But in collecting the data, you would get all of that. And again, I can’t remember if it was Renee or you or both of you, Marc, who said this at the beginning, but that’s simply collecting information so that we can do things better. So I don’t understand how anybody can object to that, and I’m -- sometimes I’m Atilla the Hun on the vertical as well as the horizontal separation of powers. I don’t want to see the federal government lecturing to the states and the municipalities, particularly when there’s good reason to think that they don’t always have the best answers or the best practices. But I can’t think of a single good reason not to collect data.

 

Marc Levin:  Renee, did you want to comment on that?

 

Renee Mitchell:  Yeah, it depends on how they’re collecting data. I mean, this is a discussion that we just had recently also at our RTIs about use of force data because a lot of times it’s binary data collection. Was use of force used? Yes/no. It’s not how much. Or an injury, yes/no, not what type of injury. So if they’re just reporting what they’re collecting, they might not have collected any data that says, “Yeah, it was outside of policy.” That’s internal affairs if it’s outside of policy, so then that could be protected in some ways that they might not report. And I also wonder when they’re doing the reporting period to the FBI, if you’re going to have things like -- Andrew, like you mentioned, when it goes to court, if you don’t have a decision yet, you’re not going back to 2019 to say, “Oh, let’s change these three cases that were now found to -- that broke the law because now they finally made their way to court.” And we have to go back and say, “These three uses of force broke the law.” Right?

 

So I think that’s why I always say that data is always dirty because it’s never clean because often, especially with policing, there’s things that happened after the fact that actually change a data point. But most people don’t have the time nor the parameters set in place to go back to clean their data every year to change data points. So I don’t know -- I could see it out of policy, maybe, collecting that. But that’s where, like breaking the law, I think you would end up with having to go back to change data to report it.

 

Marc Levin:  Yeah, that’s interesting. And I think one of the things is some of the definitions of some crimes have changed over time. So when you try to compare a year in the past to the current year, sometimes that creates a -- when the reporting standards have changed.

 

      Now, we have another question from Roger Candelaria [sp]. He kind of notes that we talk about 18,000 police departments in the country. I wasn’t sure if his question relates to, maybe, whether some of them should consolidate or sheriffs and police should consolidate in some areas or whether -- I think he might be talking about whether we have too many federal agencies that have law enforcement officers and, maybe, if they feel like they need an officer, the EPA, to do a raid, they should have to go to the DOJ and explain themselves, why it’s necessary. So I was curious if either of you all wanted to comment on the idea of there being too many police agencies or agencies with police.

 

Andrew McCarthy:  Well, I don’t think there are too many police agencies. I think that’s, sort of, spontaneously generated over time. And again, I wouldn’t want to have a one-size-fits-all fiddle for who should have one and what the lines of reporting and communication ought to be. I do think that there ought to be clearer lines about what the federal government does. And I worry that a lot of what the federal government does is duplicative, and a lot of -- it’s leaving, on the side, things that it ought to be doing that it’s not doing, which should be done by local police. And one of the things, for example––to be concrete about it––I covered, recently, a story out of California, which is really mind-boggling, about what’s going on in the train yards in Los Angeles where it’s, like, the wild west all over again. And we have these 19th-century-style train heists where tens of millions of dollars’ worth of commodities are being raided out of trains—I think the estimate was at a rate of something like 90 a day—under circumstances where -- it's significant because 40% of the imports that come into the country come into the ports that are adjacent to Los Angeles. And there’s a goodly chunk of it that goes by rail across the country.  

 

So I mention this because the big story that -- the press coverage stressed on it was the apparent lack of interest on the part of the district attorney in Los Angeles to get on the stick and get on these cases. But it seems to be that here you have something that is, almost by definition, the reason that we have federal law enforcement. I mean, it’s a classic case of interference with interstate and international commerce. And it’s the sort of thing that the federal government could bring its resources to bear and make a real impact and is in a position to do that, one would think, more than the state and municipal officials are. And, yet, you don’t -- maybe I’m falsely accusing them just because I haven’t seen anything yet. I’ve done enough investigations to know that, maybe, they’re really investigating, and this is all a matter of secrecy now, and soon there’ll be a million indictments or whatever. But I just think there are a few places around the country where there are crime problems that the federal government could uniquely be value-added. And I worry that a lot of what the federal government does is instead duplicative.

 

Marc Levin:  Yeah. Well, it’s interesting. The Union Pacific -- train companies can actually have their own police certified by the state, and I guess it was stated in an article I read that there’s only six officers between Yuma and California -- that Union Pacific is --

 

Andrew McCarthy:  Yeah.

 

[Crosstalk]

 

Marc Levin:  -- employed [inaudible 47:20] --

 

Andrew McCarthy:  The thing, Marc, though, is they could have 6 or they could have 600. They can’t prosecute the cases. If they bring them to the district attorney, and the district attorney won’t prosecute -- you said that they -- a couple of minutes ago, you mentioned redefining certain crimes. If armed robbery is now trespass, it’s not really going to help them a lot.

 

Marc Levin:  Yeah, and we’re not talking about, obviously, shoplifting, petty theft. I mean, this is serious. Well, I guess, at this point, I wanted to just kind of -- we’ve got about ten minutes left, and I do see one question just about the —there was a -- I think this touches on what you were talking about earlier, Andrew -- is just how -- somebody was asking how the police can maintain -- kind of be above the fray and not be seen as political. And, yet, obviously, police have the right to their opinions and, obviously, police unions, for example, get involved in political campaigns. But do you think the image of police, like what you outlined earlier, Andrew -- that being objective arbiters of the law and preservers of order, do you think that that is still universally, I guess, acknowledged or maintained?

 

Andrew McCarthy:  Well, it’s never been universally acknowledged. Right? It’s preponderant, and there are times that it’s better than other times. And I do think, for what it’s worth, I think for the most part, the police leave the jabbering about the political stuff to the union. And in New York, that’s always been the case. I imagine in most big -- it’s certainly the case in San Francisco where it looks like the police union is at war with the district attorney at the moment. But I don’t think that the cops, in the day-to-day of the job or the four corners of investigations, are political. I can’t say it’s never ever happened. That would be ridiculous. But I think, overwhelmingly, the experience of people who are in the system is that they make evidence-based decisions.

 

Now, that doesn’t mean that they all have good judgment, and it doesn’t mean that they always make the right decisions. But I did not witness, and admittedly, I was a federal prosecutor, I was not dealing -- I dealt plenty with the NYPD and local police. And the last five years I was in the US attorney's office, I ran the satellite office, so I dealt with a lot of municipal police departments in upstate New York. So I do feel like I know enough about this to say that I’ve seen a lot of egregious mistakes made, but I can’t say that I thought that politics drove -- off the top of my head, I can’t think of a single time where there was a big problem, and the problem was that the law enforcement had been politicized.

 

Marc Levin:  Renee, did you want to address that?

 

Renee Mitchell:  Yeah. And I don’t -- and I agree with you in many ways, Andrew, as far as individual cases. Where I think policing gets politicized is when it comes to cities and counties and how they drive what’s important to a police department to focus on or what they say you can’t focus on anymore.

 

Andrew McCarthy:  Right.

 

Renee Mitchell:  And that’s where I think the politics come in of what your city council is made of. So are you leaning towards social services and diversion and approaching it from that direction, or are you leaning more towards sanctions, and you want to see this area cleared out? And the shifts happen. And I think the reason why the individual prosecutors, cops -- I think the reason why we don’t feel politicized as an individual is because we all know that pendulum just swings back and forth and back and forth.  

 

So, over your 30-year career, you’re just like, “Okay, I’m still doing the same job, trying to be effective for my community, and whatever you tell me is my new thing I’m supposed to be focusing on or the thing I’m not supposed to be focusing on or the training I’m supposed to be taking, I’m just going to go through those things. And while I am doing those things, I’m still going to try to keep my community safe. I’m still going to try to catch the people that commit crimes. I’m still going to try to be a shoulder for a victim. I’m still going to try to write a good report, so that way if I can make a good case, they get the appropriate amount of time or whatever.”

 

And on the same side, I think you have a ton of cops and prosecutors who, if you handed them the right program that said, “Hey, we know this works to help offenders not reoffend; we know this works to help victims recover and not have PTSD and not lose days on the job or whatever,” I think every prosecutor and every cop, no matter federal, state, or local, would be on board with that. The problem is—I think, most of us have seen through the politics—it’s just some new program of the day that has no––usually, I’m making a broad statement––research or data or evidence behind it that’s just slapped on. It’s adopted from some other agency, and that’s what we’re forced into. And so, that’s kind of my different take on it, but I do agree with you, Andrew, like when it comes to the day-to-day, it is about, “This is my case. I’m doing the best job I can, and I’m trying to do an unbiased appropriate enforcement of the law and supporting my community --” because that’s why, I think, everybody gets into this. There’s not a person I know that’s gotten into the criminal justice system for other reasons other than they think that they could build a better place.

 

Andrew McCarthy:  Yeah. If I could just respond to that because I’m glad that you said that. I’ve, over the years, talked a lot about the way this system works—the proper and the improper politics that’s applied to it. And I think it’s just unavoidable in a system -- let’s leave aside whether it’s really a system or not, but for simplicity’s sake, in a system where prosecutorial and police power is executive, there are going to be policy choices that get made with every new administration, and it’s part of the political process. It’s what they run on. They do change policy. I was there when the Reagan guys were in, and it was all about organized crime. And then later, the Clinton guys come in, and it’s all about healthcare fraud. Every administration’s got its set of priorities. Then, all of a sudden, something like terrorism happens, and the ground shifts beneath you again.

 

      The one thing I would say about it because you’re always -- you’re quite right. You’re always going to have the pendulum swinging back and forth, and it does cause confusion for the people who are just trying to do the job and keep the community safe. I think the big thing is as long as the policymakers are really politically accountable, you have some control and some rationality in the system. I think when things breakdown and you end up with bad policy that you can’t dig out of, is when there’s a disconnect between the people who are making the policy and the people who have to live on their -- whatever the regime is. So if you don’t have political accountability, your loss. And as long as you have it and it’s reasonably effective, the policy will be better.

 

Renee Mitchell:  It’s a good point.

 

Marc Levin:  Yeah, no, that’s a very interesting point, and I think, Renee, your point alludes to the pace of change and how that may be or not be aligned with what practitioners can actually implement on the ground. And you think about the education system. If you said, overnight, every teacher has to do things totally different from what they’ve been doing for, could have been decades that they’ve been a teacher -- and, yet we know -- we do learn things. We have technological advances, but the pace of change, I think, is something that we really have to fully consider when making decisions. So it looks like we might be approaching our time here, but I really do want to thank both Renee and Andrew and thank our audience for the questions and comments. I think that we’ve really covered some important territory and, hopefully, had an insightful discussion. And I hope that we’re able to talk about these issues again soon. So thanks again.

 

Andrew McCarthy:  Thanks very much.

 

Renee Mitchell:  Thanks for having me.

 

Evelyn Hildebrand: Thanks very much. And on behalf of The Federalist Society, I want to thank our speakers, our moderator, and our audience this afternoon for tuning in and sending in your questions and comments. We welcome listener feedback by email at info@fed-soc.org. Keep an eye on your emails and our website for announcements about upcoming virtual events. And with that, we are adjourned. Thank you.

 

[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 fedsoc.org