We are happy to host here a discussion on policing's future.  We welcome John Malcolm and Christy Lopez; if you'd like to join the conversation please email us at info@policingproject.org


The prompt for the conversation is the Heritage Foundation's report entitled "Policing in America: Lessons from the Past, Opportunities for the Future."  Malcolm, the Vice President for the Institute for Constitutional Government at the Heritage Foundation, was a co-author of the report.  Lopez, formerly an attorney with the U.S. DOJ Civil Rights Division, is now a Distinguished Visitor from Practice at Georgetown Law. (We're grateful to the folks at www.replyall.me for the terrific medium we are using.) 


We've given Lopez the first word.

Good morning and thank you Barry!


Two things about this Heritage Foundation Special Report on Policing in America jumped out at me.  First was a sense of missed opportunity—we need to break down the false narrative that you cannot be pro-police if you are pro-police reform; this Report needlessly exacerbates that false narrative. More on that later. Second was how contrary to easily verifiable facts, and internally inconsistent, some of the Report’s broad conclusory statements and assertions are.  More on that later as well (although Prof. Barry Friedman, Dr. Phil Goff, and likely others have already countered several of them elsewhere).  


But first, I thought I’d address what the Report has to say about the Department of Justice’s work in this area over the past several years.  I haven’t seen anyone else address this yet, and since I spent the years of 2010-2017 in the Civil Rights Division working with the small group of lawyers, investigators, and police experts tasked with enforcing a statute requiring us to investigate and remedy patterns or practices of police misconduct, and as AG Sessions is currently trying to dismantle this, it seems like a good place to start.


It is important to recognize at the outset that investigating police departments and negotiating consent decrees was only one of the many tools DOJ used during the previous administration to encourage policing that is both effective and builds, rather than breaks down, community trust.


In the Civil Rights Division, we very deliberately worked with the COPS office, OJP, NIJ, and the rest of the DOJ alphabet soup to ensure that there were a wide variety of options, resources, and, yes, funding, for law enforcement agencies (LEAs) who wanted to try out new ideas to make policing better.   We worked to create these options because we knew that most LEAs can achieve the kind of policing we all want without an agreement negotiated by the police department’s jurisdiction and DOJ and entered as a federal court order (aka, a “consent decree”).  As a result of programs like COPS’ Collaborative Police Reform (undone by Sessions) and Critical Incident Response (undone by Sessions); the Violence Reduction Initiative (renamed or undone by Sessions-it’s unclear); and many others (undone by Sessions) we had options. 


In fact, although I never kept count, of the many times that a police chief or City official reached out to the Civil Rights Division asking us to investigate their department (and there truly were many times), my recollection is that in the vast majority of those instances, we coordinated with our colleagues in other parts of DOJ and referred those agencies to other components for technical assistance or voluntary reviews rather than a federal investigation.  Our whole goal was to help make policing better, and we knew that required more than one approach.


It is true that one of those approaches involved enforcing the pattern-or-practice police misconduct statute that Congress gave us to enforce.  And yes, we took this responsibility seriously and believed it to be an important part of moving policing forward in positive way.  We worked hard to be deliberative, objective, and thoughtful about enforcing the statute and were always focused on where we could do the most good for communities and the police departments that exist to serve them.  (If you want a comprehensive look at how we conducted our investigations, and how we negotiated and implemented consent decrees, you can read a report we wrote here.)


During investigations, we worked closely with experts—from law enforcement professionals to statisticians and more, and spent hundreds of hours talking and riding along with police officers of all ranks, as well as members of the public.  Where the need for immediate change became apparent during the investigation, we worked closely with our DOJ counterparts to try to get real-time technical assistance in place while the investigation was still underway.  In our investigation of the Chicago PD, for example, I personally spent scores of hours working with our DOJ counterparts to bring in and support active police professionals from another large policing agency to help Chicago PD develop and deliver force de-escalation training and develop systems for data-driven policing in some of Chicago’s most violent neighborhoods.  The Report’s statement that “some” attendees felt that DOJ equated data-driven policing as “systemically racist” is not only unsupported but actually contrary to everything we were doing—i.e. supporting policing that is both evidence-based and lawful.


I also find it a bit hyperbolic for the Special Report to say that we subjected police departments to a “staggering number of consent decrees.” After all, there are, depending upon how one counts, about 18,000 law enforcement agencies in this country, and in the over 20-year history of the statute we conducted about 70 investigations and entered 40 reform agreements (not all of which were consent decrees).  I think that works out to having reform agreements with about .2% of police departments.  Over 20-plus years.


Is there really anyone that thinks that .2% over 20-plus years is an overestimation of the percentage of police departments that have a pattern or practice of violating individuals’ civil or constitutional rights?


Are the Civil Rights Division’s investigations perfect? No. Are our consent decrees perfect? No.  But we worked hard to make them better every day, including working with police departments, communities, and policing experts to modify them when we found better ways to do things.  And although some have argued that policing and police reform is too varied and complex to ever conclusively measure how exactly consent decrees change policing (although we’re trying!), what we know so far indicates that these police-DOJ efforts have improved both the efficacy of policing and police-community relationships in the places they’ve been implemented. This is no small feat given how almost-incomprehensibly difficult changing the culture of a police department is.  You can go here for a new paper from Professor Sam Walker that includes a discussion of many of these studies of the impact of Civil Rights Division reform agreements on police departments and communities.


I have more to say about the DOJ’s police reform work and the Special Report’s other critiques, but I wanted to start with a bit of a reality check about what the Civil Rights Division's pattern-or-practice enforcement was really about during the last administration. It was a good program and I hope, for the sake of communities and police officers across the United States, that its best days are still ahead.


Much more to talk about, but why don’t I pause there and let John Malcolm and others tell us what they think I’ve got wrong already. 

Thank you, Barry, for initiating this.

And thank you, Christy, for these thoughtful comments.  It is nice to meet you, electronically.  I offer my own comments in the spirit of an open and respectful dialogue. 

I would begin by noting that this Report was in no way meant to be comprehensive or definitive.  It too was meant to be the beginning of a dialogue, one which we will certainly continue at Heritage and with others.  It emanated from an all-day, off-the-record meeting of past and current law enforcement officials, scholars, and criminologists.  The invitees had diverse backgrounds, and included some who, like Christy, had served in the Obama Administration. 

What Ed Meese and I wrote was just meant to give a flavor of the variety of subjects discussed and viewpoints expressed, while respecting the Chatham House Rule that we had established.  For this reason, no viewpoint was attributed to any single individual or group of individuals, and we only identified those attendees who wished to be identified (a few did not).  There were, so far as I can recall, no issues on which there was a unanimity of views (other than, perhaps, the need for police officials to be more transparent about what they do and why they do it, and to be more effective in communicating this to the public), and we tried to make clear when there appeared to be a strong consensus of opinion, and when there wasn’t. 

I would also add that the summary which I co-authored does not, in all instances, reflect my personal views.  Indeed, in some of my own scholarly articles, I have taken public positions that have run counter to the views of some, if not most, of the attendees.

The other articles contained in the Report were submissions made by a few of the attendees; all the attendees, regardless of their viewpoints or political leanings were invited to submit an article, although, of course, all of the attendees are extremely busy people (we were grateful they were willing to spare a day to attend the summit).

All that having been said, I will begin by saying that I think Christy, perhaps inadvertently, makes what I believe is a strawman argument.  She begins by saying that the Report contains a “false narrative” that you cannot be both pro-police and pro-police reform.  Not only do I not think that is reflected in the Report, but I certainly do not believe that and firmly believe that nobody who attended the summit believes that.  To a person, everyone at that summit believed and believes that reforms are needed and, in many cases, long overdue.  One of the reasons we met and will continue to meet is to discuss the nature of what reforms are needed and how can they best be implemented.  Indeed, as best I recall, there was widespread support and admiration for the work that the Task Force on 21st Century Policing (an Obama initiative) had done, and some regret expressed that the Task Force had to operate on such a constrained schedule.  There was widespread appreciation for a number of the recommendations that emanated from that Task Force, and many police departments are actively implementing many of those recommendation.

In my own personal scholarship, I have offered suggestions about changes to police practices (such as reforms to civil asset forfeiture practices  -- something that was touched upon at the summit and which, in fact, received some support, although it was by no means unanimous).  Mark me down as being firmly in the pro-reform AND pro-police camp.

The rest of Christy’s remarks seem to center on defending the use of pattern and practice investigations and consent decrees initiated and consummated by the Department of Justice’s Civil Rights Division under the Obama Administration.  Given the fact that Christy worked in that Division for seven of the eight years of the Obama Administration, I suppose that is not surprising.

First of all, Christy, thank you for your public service.  Having served for 10 years in the Department of Justice (7 in a career position, and 3 as a political appointee), I know the dedication that such service involves.  I am quite sure that she and her colleagues did what they thought best, just as this administration is entitled to go in a different direction if they think it best to do so (as they clearly do, and as Attorney General Sessions said they would during his confirmation hearing). 

Moreover, I would note that the introductory section of the Report, which I co-authored, did not single out the Obama administration, which most assuredly was not the first administration to initiate such investigations or enter into consent decrees.  While sticking to the Chatham House Rule, there were several attendees who thought it important to recognize that such practices have been carried out under both Democratic and Republican administrations; however, I think it is indisputable that it happened with greater frequency under the Obama administration  --  perhaps justified, perhaps not.  While it is true that some of the attendees did single out the Obama administration  --  such as Garry McCarthy in the article that he wrote  --  that was not the opinion of everyone there. 

My own personal view is that the Obama administration was a bit heavy-handed when it came to initiating pattern-and-practice investigations and in pushing for consent decrees (although I don’t question the motives of those involved).  Sometimes such actions were taken against the wishes of local officials, and sometimes with their active encouragement – either because they thought such a measure was necessary and appropriate or because they found it politically expedient to do so.  Only time will tell whether the Sessions Justice Department will fare better than the Obama Justice Department.  My suspicion is that Christy thinks it is doomed to fail, while I am more optimistic. 

That having been said, I firmly believe (and I suspect most, if not all, of the summit attendees would feel the same way) that change is definitely necessary.  While crime rates are still well below historic highs, the tremendous spike in violent crime rates in certain urban areas (where, not coincidentally, there appears to be the most tension between the police and the citizens they are supposed to serve) and the opioid crisis are troubling developments.  Police community relations must be improved, and with it, the police will have to scrutinize what they do, how they do it, and how they communicate it.  That will require “police reform” and will also require a great deal more respectful dialogue by all the affected participants and those who care about crime, fairness, and the well-being of our communities.  I am happy to be engaging in such a dialogue here with Christy, and we will certainly continue engaging in such dialogue at Heritage.

John says that he personally is pro-police reform. We’ll take him at his word, but regardless of his personal views, there is no question that this Heritage Special Report perpetuates a false narrative that both undermines hard-won reform efforts over the past several years and is dangerous to both police officers and communities going forward.


For too many years, too many police departments have been setting police officers up for failure. How? By pushing strategies that simultaneously make it harder to police constitutionally and effectively, while creating tension with communities with whom they most need to partner to be safe and effective. Stop, Question & Frisk (SQF) in NYPD circa 2012, and over-policing (including policing to generate revenue) documented in Ferguson circa 2014, are two examples, but there are more.


The harm of these practices has been exhaustively documented in litigation, DOJ investigations, expert reports, and academic studies.  And, the evidence shows overwhelmingly that these strategies do not make us safer.  All they do is make it easier for officers to get themselves in trouble by violating the law, and get themselves (and the rest of the police profession) resented for stopping, searching, citing, and arresting people for reasons that are somewhere between unnecessary and unrelated to public safety.


 Yet, as the Heritage Report shows “some” people just can’t let go of a bad idea.  The Report calls SQF “highly successful” and “powerful law enforcement tool” that the police “lost” because they lost control of the “narrative” about policing.  

In reality, SQF was found by a federal judge after an exhaustive trial to systematically violate the Constitution. And when NYPD stopped using this practice, stops and searches of black and brown people in New York plummeted, while crime stayed the same or even went down—in fact murder rates took their biggest drop at the same time the use of SQF plummeted.  That’s not a false narrative, that just fact.  More just a few more facts about SQF here.


So, according to the Heritage Report, police reform doesn’t mean ending strategies that are unlawful, ineffective, and make black and brown people feel like the police have no respect for their rights or dignity, it means getting a better public relations plan to explain those unlawful, divisive strategies.  

That’s not a plan for police reform. That’s a plan for continuing the same seemingly endless cycle we’ve been stuck on into perpetuity. That’s a plan for continuing to fail to provide officers the direction, honesty, and training they need, and then deeming them “bad apples” and feeding them through the cider press after they end up exactly where you would expect after being told to police in that manner. 


And who suffers even more than officers when reports like this one perpetuate these notions of fake-reform? The “low-income” and “minority” communities most in need of police protection.  Because under the Report’s rationale, reform requires these communities to submit to policing that already has been found to violate their rights and treat them as second-class citizens because of the color of their skin; and reform requires these communities to stop articulating their concerns about how they are being policed (unless the police agree with them, in which case it’s okay to complain). Otherwise, according to the Report, these communities have put themselves at greater risk.  This is certainly a view that “some” people hold.  But it is empirically unsupported and it is inconsistent with any real effort to achieve meaningful police reform.  This report is not both pro-reform and pro-police; in fact it’s neither. It’s a shame, because it could have been both. 

Thank you, Christy, for your response.  I suppose that my immediate reaction upon reading it was, to quote former Senator Daniel Patrick Moynihan (certainly a national treasure), “Everyone is entitled to his own opinion, but not to his own facts.”

 

There is no question that police practices are in need of reform and that, too often, there is distrust between police officials and the communities they serve, which undermines public safety and confidence – both causes for concern. 

 

Reasonable minds can also certainly disagree about the efficacy of certain police practices, such as Stop, Question & Frisk (thank you, by the way, for adding the “question” part of this equation, which is often lost in the shuffle, leading the general public to conclude – wrongly – that police officers simply stop people on the street at random and immediately frisk them for no reason whatsoever), and whether such practices work in all places at all times.  Still, I think it is a stretch to say so categorically that such practices are dangerous, a failure, unconstitutional, and inherently illegal, and that the myriad of harms caused by these practices have been exhaustively documented and definitively established in court cases and academic literature. 

 

True, such practices (at least the way they were carried out by the NYPD) were, as you point out, found to be unconstitutional by a now-retired federal judge in NYC, Shira Scheindlin.  Her opinion, however, was highly criticized and questionable (See hereherehereherehereherehere, and here; I could go on, but you get the point).  Christy may well believe, as I assume she does, that Scheindlin ruling was correct, but color me skeptical as to the correctness of that ruling.  Suffice it to say that the law in this area, and the wisdom of such a course of action, is far less settled than you would have the readers of this exchange believe.

 

Indeed, the Second Circuit subsequently entered a stay of the district court judge’s ruling and removed her from the case (see here), stating that the judge had failed to “avoid impropriety and the appearance of impropriety in all activities,” and failed to disqualify herself “in a proceeding in which the judge's impartiality might be reasonably questioned.”  Mayor Bill de Blasio (himself a controversial character, to say the least, in police circles) decided to drop the appeal to the Judge Scheindlin’s order and to accede to her ruling (see here), even though he stood a more than decent chance of success had he pursued the matter.  Other Progressive mayors have done the same (see here and here), acceding to consent decrees rather than challenging them in court or in the court of public opinion. 

 

That having been said, I think that it is a bad idea to paint with such a broad brush, in either direction.  For example, I think that Stop, Question & Frisk practices and the CompStat (compare statistics) program, begun under former Police Chief Bill Bratton during his first tenure as head of the NYPD, deserve a tremendous amount of credit for reducing crime in New York City.  And Bratton’s ability to take a hard look at how Stop, Question & Frisk had metamorphosed over time  --  in unhelpful ways  --  and his ability to reform those practices in sensible ways during his second tenure as head of the NYPD has led to continued success in reducing crime in New York, reducing tension between the police and the communities they serve, and curbing some of the excesses that such programs can engendered if not monitored carefully. 

 

Bratton spoke about this recently during a keynote address at Heritage, which I highly commend to the readers of this exchange (see here).  Christy and I are in agreement that crime rates in NYC have continued to drop at that same time that police officers have curbed some of their Stop, Question & Frisk practices.  Christy may well believe that such practices have not contributed in any way to reducing crime rates and are always counter-productive.  I believe that such practices have been, and can continue to be, effective IF (and that’s a big “if”) used intelligently and appropriately, in combination with other proven investigative techniques.  It is thoughtful input by pro-reform, pro-police individuals such as Bill Bratton (and there are others like him, although most lack his experience and expertise) who will advance the ball in terms of improving relations between the police and the people they serve, and enhancing public safety.

 

Christy and I are I radical agreement that black and brown people (as well as other ethnic minorities) should be treated with respect, and that their rights and dignity should be protected.  It is also important, however, that their safety be protected, and it is a sad fact that too many ethnic minorities live in communities where they are not safe.  Businesses refuse to set up shop in such high-crime areas, and people are afraid to send their kids to school or to local parks or even to sit on their front door-steps.  Something must be done. 

 

None of this requires, to quote Christy, affected “communities to stop articulating their concerns about how they are being policed”  --  nobody believes that would be right or effective.  Affected communities AND the police, as part of an open-minded, ongoing dialogue, must be part of that solution, and transparency and more effective communication about why the police employ the tactics they do (something Christy appears to deride, since according to her, it is designed only to highlight unlawful, ineffective, and divisive strategies) are also important. 

 

It will not be easy, but major cities such as New York and Los Angeles have shown that real progress is possible over time, thanks to genuine pro-police, pro-reform leaders like Bill Bratton and Charlie Beck.  At the same time, heavy-handedness and a blame-the-police-first attitude won’t help either. 

 

The Heritage Report (available here), and the ongoing discussions we will have both internally and with others, is designed to foster a pro-police, pro-reform agenda.  Christy may not see it as such, but I hope some of the readers of this exchange will read the Report and decide for themselves.

 

Thank you again, Christy, for engaging in this thoughtful exchange.  I greatly appreciate it.

I am not sure how you can say it is a “stretch” to say that SQF as practiced by NYPD a few years ago was unconstitutional and a failure. It was found by a federal judge to be unconstitutional; evidence at trial demonstrated that innocent people were unlawfully stopped and frisked because of it; evidence at trial (and other available information) demonstrated that it created deep division and resentment between communities of color and the police; and there is no evidence that it had a positive impact on public safety.  


I realize that in your opinion the Judge’s decision was wrong, and we could have a war-of-the-hyperlinks with opinions on either side of the issue, but SQF was in fact, found to be unconstitutional in a 100+ page opinion after nine weeks of trial. I do agree it would be stretch to say that SQF is inherently illegal or dangerous, which is why I did not say that.  (Along those lines, in the spirit of respect that you purport to bring to this dialogue, it would be helpful if you did not accuse me of making up facts without pointing to a single fact that I supposedly made up. It makes it difficult to defend oneself or correct any inadvertent misstatements.)


On the topic of respect, I am wondering whether you recognize how deeply disrespectful and disconnected it is to insinuate, as both the Report and your comments do, that people who live in communities with high crime rates must choose between policing that effectively protects them and policing that violates the constitution and/or treats them as second class citizens.  That is what you are saying when you argue for a return to unconstitutional, failed practices like NYPD’s use of SQF because “something must be done” to protect people who live in unsafe communities.  This argument, and similar arguments made in the Heritage Report not only show disrespect for the dignity and rights of the people who live in these communities  but also to law enforcement leaders and criminal justice scholars who have worked hard to develop and demonstrate the efficacy of crime-fighting strategies that are both lawful and effective.  Not to mention disrespect for the rule of law.  I am fairly certain that you do not intend such disrespect, but it is difficult to understand how you do not see that this is what the Report conveys.

Christy, yes, SQF was found unconstitutional by a federal judge, as I acknowledged.  However, the correctness of that decision was subject to significant doubt, which is why the Second Circuit (a higher court) issued a stay of her ruling.  And, of course, the court went further, stating that Judge Scheindlin should never have considered the matter in the first instance because her own impartiality might reasonably be questioned.  The only reason her ruling was allowed to stand was because Mayor de Blasio -- whose own biases and political preferences in this regard have been discussed at length elsewhere  -- opted to settle the case rather than pursue it.  Accordingly, it is, in my view, perfectly reasonable to question the validity of a ruling by a judge (and only one district court judge out of 677 authorized federal district court judges nationwide, each of whom might view the matter differently) whose opinion was discredited by a higher court because a reasonable person could have concluded that she was biased. 

 

For these and other reasons, I do not think that one should accept Judge Scheindlin’s order as the definitive word regarding the legality or effectiveness of SQF in general or as practiced by the NYPD.  Perhaps this is water under the bridge.  As you and I have both noted above, SQF practices in NYC have been revised (but not eliminated) and crime there has continued to drop, which is all to the good and deserving of thoughtful study by other police departments.

 

I believe, though, that your statement that SQF is ineffective is subject to debate.  Many commentators have pointed to problems that have resulted in some high-crime areas where police have been intimidated into curbing or eliminating some practices that they had been using, including SQF, to great effect (see here, for instance).  This does not mean, of course, that SQF, or any other police practice, will always be appropriate or effective in all circumstances; it won’t. 

 

As for your accusation that I have mischaracterized your position, I can assure you that was not my intention.  It is true that you did not use the word “inherently” in terms of saying that SQF is “inherently illegal or dangerous”; however, I thought that was a fair characterization of some of the phrases you did, in fact, use, such as your statement that current police strategies, such as SQF, “are unlawful, ineffective, and make black and brown people feel like the police have no respect for their rights or dignity” and that the “harm of these practices has been exhaustively documented.”  You are, of course, entitled to your views, even if I disagree with some of them.

 

As to your last comment, Christy, I appreciate your acknowledging that I intended no disrespect, which I certainly didn’t, to you or to anyone else.  However, I believe you have set up a false dichotomy, one in which “people who live in communities with high crime rates must choose between policing that effectively protects them and policing that violates the constitution and/or treats them as second class citizens.”  I do not, in fact, believe (nor did I insinuate) that people who live in communities with high crime rates must make such a choice or, for that matter, meekly submit to police practices that they find offensive (regardless of whether they violate the Constitution).  Rather, it is my belief that people in such communities must take a hard look at the problems they face and engage in an ongoing, frank, good faith dialogue with local law enforcement officials about how to address those problems in an effective, equitable, and, yes, racially just manner that does not make them feel like second class citizens.  At the same time, the police need to do a better job of explaining why they engage in some of the practices they do, why they believe they are effective and appropriate, and why they believe they are necessary to protect the public and themselves.  Both sides need to be open to reconsidering their views based on what they hear; this is not, nor should it be, a “like it or lump it” situation.  It is through such dialogue, and only through such dialogue, that real progress will be made. 

 

I do not believe that the Heritage Report  --  really a synopsis of the views of a variety of thoughtful leaders who are on the front lines of addressing these problems on a day-to-day basis – is in any way disrespectful of the views or rights of people who live in these communities or to the law enforcement officers who put their lives on the line every day to protect the people in those communities.  I realize you disagree, and can only hope that the readers of this exchange will read the Report for themselves and decide.

 

Thank you again, Christy, for engaging in this frank, pointed, but respectful, exchange.