The New Yorker Radio Hour - Is a “Win-Win” Still Possible in Policing?

Episode Date: November 7, 2023

As the Black Lives Matter movement brought sustained national attention to police shootings of unarmed Black people, there have been many efforts made around the country to reform policing. The movement also became associated with police abolition and the controversial call for defunding. Kai Wright, the host of WNYC’s “Notes from America,” convenes a panel to look at the effects of the movement on policing, talking to the policy analyst Samuel Sinyangwe, of Mapping Police Violence; the attorney Anya Bidwell, of the Institute for Justice; and Michael White, a professor at Arizona State University’s School of Criminology and Criminal Justice. Assessing the results of reform efforts remains difficult, because obstacles exist even to the collecting of data. “We have a system of eighteen thousand different law-enforcement agencies, each with their own set of policies and practices, their own department culture,” Sinyangwe says, and yet certain patterns are repeated year after year: Black people, he says, “are about three times more likely to be killed than white people” by the police.  The group explores the widespread adoption of body cameras, and the push to change legal landscape around qualified immunity, which make it difficult to prosecute police officers even in egregious cases of the use of force. Bidwell argues that, “as long as we have a system of checks and balances that operates properly,” it is possible to reduce crime, while keeping the public and officers safe. “If everybody does what they’re supposed to do, then we can actually have a win-win-win situation.” And although there have been reductions in arrests for low-level, non-violent offenses, many systemic, deeply troubling trends in police departments have continued unabated, including a relatively stable number of a thousand and fifty to twelve hundred people killed by police annually. New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

This is The New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. This is The New Yorker Radio Hour. I'm David Remnick. The movement we know as Black Lives Matter began 10 years ago in 2013 as a hashtag. We're going to look at how things have changed in that decade on today's program. Now, I've never had the experience of being followed by security in a store. I've never been stopped and frisk, wrongly accused, or man. handled by the police. But millions of people, principally black Americans,

report that this kind of treatment happens to them all the time. Where earlier civil rights struggles centered on voting rights or discrimination and schooling, Black Lives Matter focused above all on policing, on excessive stops, on use of force and violence, all directed at black and brown people. And Black Lives Matter popularized the slogan, defund the police,

which quickly became a matter of controversy. To try to gauge the impact of Black Lives Matter over the past decade, we're joined by Kai Wright, who's the host of WNYC's Notes from America. Ten years into the movement that emerged following Traylon Martin's horrific killing, there's a simple question you could ask.

Has there been any measurable change in addressing police violence and abuse? The answer is not simple. There have been many, many efforts at fixing this problem, but we're going to dig into three specific areas of reform, transparency, accountability, and just tracking the problem. We gathered three experts who come at these challenges from slightly different angles. Anya Bidwell is an attorney for the Institute for Justice. Mike White is a professor of criminology at Arizona State University, and Samuel Sinyongwei

is the founder of mapping police violence and police scorecard. Samuel was in his 20s, at a nonprofit that focused on economic and social equality when Trayvon Martin was killed. And he was used to having access to all kinds of data in his work. So after Mike Brown was killed a little later, Samuel decided, I want to create a national database that tracks the number of police fatalities. But when he got started, he found very little to work with. I asked him, why was the data so bad? So the data was so bad because the federal government was relying on a program where you had 18,000 different law enforcement agencies across the country. It was a voluntary program whereby the federal government was asking each of those 18,000

agencies to report what homicides took place and whether those were what they call justifiable homicides, which is their word for homicide committed by the state or a homicide committed by an individual who, you know, understand your ground law. or other other cases was deemed justifiable. You know, an article from 538 came out in the early weeks following the death of Mike Brown that basically tore apart that methodology. There were websites like killbypolice.net at the time. There was an individual, a volunteer individual who wasn't being paid for this,

who would just search for keywords like killing by police, police involved killing, officer involved shooting. and what that 538 article did was they looked at that list at killed by police.net and they found that there were nearly three times as many cases on that list as what the federal government was reporting. Hundreds of homicides by law enforcement agencies between 207 and 2012 aren't included in records kept by the Federal Bureau of Investigation. But the issue was that the work hadn't been done to really analyze

that data. Many of the cases had been coded by race. There was no information about the circumstances of those cases, whether the folks were armed or unarmed, what police department was responsible, what patterns were in the data that could help point to potential solutions. So a lot of the work to just basically understand and address the most fundamental questions that an emerging mass movement was demanding. The fundamental question of how many people have been killed by police, whether things are getting better or worse, and what we can learn from the data in terms of solutions to ultimately reduce police violence.

And Samuel, in as much of a nutshell, I know I don't want you, your data scientist, I don't want to make you be reductive about your data, but work with me. In a nutshell, what have you found? So over the past 10 years, from 2013 through the present, what we can say is that police kill about 1,200 people every single year. And that didn't start when the national conversation became focused on police violence.

It's something that has happened at a remarkably regular and constant pace, about 1,050 and 1,250 people. Which is a remarkable number. Absolutely. And it's about more than three people every single day. What we also know when we unpack the data is how deeply systemic this issue is. We have a system of 18,000 different law enforcement agencies, each with their own set of policies and practices, their own department culture. Some have more or less funding, more or fewer employees.

That constellation of 18,000 agencies every single year kills a similar number of people. The patterns are remarkably similar year after year as well. Black people are about three times more likely to be killed than white people per population. Latinos killed between 1.5 and 2 times at higher rate than white people per population. Native Americans also killed a similar rate as black people. So again, much higher than white people. Despite this centralized system, there is a repetitive outcome, even though it's so dispersed across the system. I want to get Anya and Professor White into this part of the conversation too.

And, Anya, you were nodding fiercely as Samuel described, the same. state of the data, how bad the data was and has been, what is the lived consequences of that? What does that mean for the work you do not having information like that? You know, Justice Brandeis once famously said that sunlight is the best of disinfectants. And transparency really is extremely important in those types of situations. And I don't think it's surprising that in many controversial topics, we don't have good data, right? for example, Second Amendment and the use of guns, that's another area where it's very hard to actually find the data. For us as lawyers, it is much easier to, you know, file complaints,

filed class action lawsuits, have allegations in the complaint that are backed by data. That's a much stronger lawsuit that can take you much farther, even though there still will be other doctrines that we'll talk about that will still make it difficult. Professor Mike, why is that the case? Why don't we have a centralized system for collecting data from the federal government? You know, there is an effort now to create a national level use of force database. The FBI is leading that effort. It started, I believe, in 2019.

It is voluntary. You know, one thing I think we do need to keep in mind is that each year there are more than 50 million encounters between. police officers and community members across the United States, more than 50 million, the vast majority, vast majority of those encounters begin and end peacefully. And not all of those police killings are excessive, inappropriate, unlawful uses of force. Some number of those police killings are justified. And so with that context in mind, Samuel, there's been a decade of, of activism and greater public conversation about this at minimum.

There's been a decade of someone like yourself saying, well, let's track this. Is there anything that we can point to in your data that says, okay, well, this is getting better, R.NO. As Michael said, you know, this is something that policing is much broader than those 1,200 incidents. there are between 6 and 10 million arrests made every single year. And we do see some important shifts in terms of overall police contact and enforcement over the past decade. Particularly, there's been a substantial reduction in arrests, particularly arrests for lower level nonviolent offenses. And this is important because when we consider six to 10 million arrests, I mean, that's a lot of people.

If you have an arrest record, that impacts your ability to get a job. It impacts your ability to get housing. It impacts a range of opportunities for you. It often results in incarceration, which has its own negative health effects. And so reductions in arrests overall, particularly for low-level offenses, have across the country of the past decade. They were accelerated during the pandemic, but have really been concentrated in some of the largest cities in the country. We should all agree. the answer is not to defund the police.

It's to fund the police. And so much of that money is focused on stops and arrests and police activity and enforcement really targeted towards low-level non-violent issues that are often associated with crimes of poverty, issues of mental health and substance use. So drug possession, loitering or vagrancy, off trespassing, crimes associated with sex work, prostitution arrests, et cetera, have seen substantial declines across the country. The cities that have made the largest reductions in arrests,

particularly for low-level offenses, have also seen some reductions in police shootings, both fatal and non-fatal, because there are fewer incidents that are often escalate. There's just, yeah, there's fewer opportunities to engage in the first place. Exactly. But speaking of the number of arrests

and the volume of engagement with police departments. One of the things that has come up in the years since the Black Lives Matter movement became part of the political conversation is body cameras. And that it was supposed to be something that was, at least in the popular conversation, going to be, you know, hey, this helps,

this gives us eyes on the interaction of all those billions of interactions that are happening between cops and everyday people. And so, Professor Mike, can we start with you because you have studied this issue? What actually were body cameras supposed to do? What was the argument behind body cameras?

You know, many departments simply did it as a show of transparency. I can't tell you how many press conferences I saw of chiefs of police announcing the start of a body-worn camera program and saying we're doing this because we've got nothing to hide. You know, simply, I don't want to be the next Ferguson. And then there was some early evidence that suggested if you deployed cameras,

you would see reductions in use of force and complaints. There were a handful of studies that came out in 2013, 14, 15 that showed that. I think those were the primary drivers of the adoption. From all of those sort of different vantage points of people who said, okay, this is a good idea for me. What have we learned? You know, it depends on which outcome you're focused on. The studies on use of force are much more mixed.

Again, about 30 studies. And only half of those studies show a reduction in use of force after cameras are deployed. So for me, the big takeaway is that you're not going to see one story with bodyworm cameras being deployed in a department. There's too many other contextual factors that come into play. The big one being, what's the state of a police department when they deploy? cameras. And that was the case in Ferguson. Within 30 days of Michael Brown's death, Ferguson police officers started wearing cameras. But you could also have a department that deploys cameras as just one more professional activity that that department does. So the,

you know, the starting point of a police department is extraordinarily important. Is it a department in trouble? And this is why they're deploying cameras. Or is the department professional and they're respectful in their contacts with community members. They hold their officers accountable. And this is just one more thing they're doing to maintain that level of professionalism. So I think to spell out like why is that what is the distinction there in terms of what happens then? You know, if it matters, which makes sense to me, it matters how they come into it. What are the, how do the outcomes vary based on whether they come into it?

If a department is in trouble. So, for example, the Rialto Police Department of California was the first to not only deploy cameras, but to rigorously study those cameras. And they showed immediate significant reductions in use of force. But that department was in significant trouble. I mean, there was some discussion about whether that department was going to get shut down by the Rialto City Council. And you have a reform chief come in who does a bunch of things, including deploying the cameras. Compare that to the Washington, D.C. Metro Police Department. when they did their study, they didn't document any impact on use of force, but the DC Metro

Police Department had been under consent decree for a decade before they deployed cameras. So the consent decree that was in place, the Federal Monitor required significant organizational change and improvement over a period of 10 years. Not surprisingly, they don't see a big reduction in use of force because I think all of the things that happened over the prior decade, that department was in a much better place organizationally when they deployed cameras versus a department like Rialto. But I'll tell you from experience that even when you do have video footage, and if that video footage shows an officer behaving unreasonably, very often courts are still going to give

qualified immunity to the officer. I have an example of a case in Arkansas where a police officer held at gunpoint two children, a 12-year-old and a 14-year-old. I've got two juvenile individuals, dark cuddies and pants. And you could think if there is no footage, no video footage, you could imagine that a 14-year-old might have looked threatening and maybe older and had a mature voice, that it would have been reasonable for an officer to mistake him for an adult, but that video footage shows very clearly that these are children. They're answering, they're complying with the police officer 100%.

He's yelling at them, he is pointing a gun at them, he is forcing them on the ground. And still, even with that footage, the constitutional lawsuit was dismissed because of qualified immunity. There are many different circumstances and structures under which this program is being implemented in various cities. In most cases, across the country, you know, body cameras are a tool that allows law enforcement to collect video that they then get to decide what to do with. And that alone, I think, is not sufficient to provide for the type of accountability that I think community members expect or demand. And we've seen this, I think, about Alton Sterling in Baton Rouge. I was killed by

Baton Rouge Police Department. And it took years to actually reveal that there was hidden footage that the police department kept under wraps. And finally, that footage came out years after. Family members were told that there was footage that exists but weren't allowed to see it. Community members were kept in the dark about this footage. Finally, the footage came out that showed that prior to the cell phone footage, that the country saw, the officers came up to him

with the body camera footage, showing that they pointed their gun at him, pointed it at his head, threatened to kill him, escalating the situation in a way that the cell phone footage alone didn't show. D.C. leaders are working to stop the crime crisis that's been plaguing our city for months. So in D.C., just this week, they have been pushing legislation that would allow officers to review body camera footage before they write their

statements about what happened in the incident. Yeah, Samuel's comments are well taken. And, you know, there are a couple of states that have passed laws that impose restrictions on the police. And so the state of California, for example, passed a law requiring that every police department in the state of California, release footage of critical incidents, officer of off shootings within 45 days. It's state law.

You must. The Las Vegas Metropolitan Police Department, they release footage of officer of off shootings within 72 hours of the incident. 72 hours, they'll have a press conference. They show the raw footage. And I think that's, you know, that's a tremendous show of transparency. But the other thing with, you know, the impact, I mean, think about the tight. Nehry Nichols beating, you know, those officers were wearing body cameras and those cameras

were activated. They were recording. How could that possibly happen? Well, it happened because those officers had no concern that they were ever going to be asked about their behavior. That's Kai Wright talking with Mike White, Anya Bidwell, and Samuel Singh Yangway. And we'll continue in a moment. Speaking of holding officers to account for their behavior, Anya qualified immunity has come up a few times. This is a federal doctrine that is established via Supreme Court rulings at this point, and it gives government officials, including cops, a lot of protection from being sued for doing their job. That's the idea, right? So for police, it's in part to allow them to make these split-second decisions. And as long as they can prove that the decision they

made was reasonable based on precedent, that means they're safe, right? And in cases where you have camera footage, very often, it still makes no difference because qualified immunity very much focuses on what would have an objectively reasonable officer done, not what would have this very particular officer done. Well, let's talk about it on two levels. One, this is a thing that is a consequence of loss. So first off, if it would have to change, this would have to be Congress would need to pass a law saying we get rid of qualified immunity. Or the Supreme Court can overturn its 1982 decision and say qualified immunity doesn't apply. Or it is, like you said, Congress could do it tomorrow if it wanted.

In today's world, we are more likely looking at Congress would have to pass a law that says we want to get rid of qualified immunity. So then in absent that, absent a new law, either from Congress or from the Supreme Court, what does that then mean in court? for you, and particularly if there's been a change in the past 10 years for how to get accountability despite the existence of qualified immunity. One option that private lawyers, civil rights lawyers, any lawyers have also, is to go to state courts and sue under state laws. That's why Colorado, for example, after the murder of George Floyd passed its statute saying that you can sue police

officers for excessive force and qualified immunity will not be an obstacle. New Mexico was another state that passed a similar statute. In New Mexico, though, they said, you sue police officer, but it is the municipality as the employer of the police officer that will be held liable, incentivizing municipalities and police departments to hire and train better. When we talk about the way conservatives think about this topic, There's actually, there are more than one sets of views here also. You know, the Institute of Justice was funded in part by one of the Koch brothers, Charles Koch. How do you see the different sort of layers of understanding of this and feeling about criminal justice reform amongst conservatives?

So let's start with Justice Thomas, for example, right? He and Justice Sotomayor agree that qualified immunity, has serious issues. And a lot of conservative jurists are also suspicious of policymaking by the court, right? The original understanding of the role of the judiciary is that judges are the ones that are supposed to see whether the right was violated and then order a remedy. And then it is up to the legislative body to worry about incentives, you know, and deterrence effects and then order impose some sort of an immunities. Congress has never blessed qualified immunity in any shape or form. So conservatives and liberals are suspicious of qualified immunity, perhaps for different reasons,

but they end up often agreeing with each other. We understand that maybe qualified immunity shouldn't be as big of a burden when you sue a mayor, but when it comes to police officer, maybe it should be a big burden because police officers often act in the heat of the moment. So there is also that other part of conservative bench that's worried about those kind of repercussions. Which, you know, I mean, that points us to some really fundamental questions that kind of swirl in this debate. There is a difference between reducing crime at any cost and keeping the public safe, but also in keeping police officers safe. And it sort of depends on what politically you have centered. And I guess the bottom line is, can we do all three? Can all three of these things happen? Can you

can you reduce crime, keep the public safe, and keep police officers safe? Yes. Yes. As long as we have the system of checks and balances that operates properly, right? So, for example, in my field, when it comes to people being able to sue and as a result, keep government officials accountable, it's great when courts are the ones that are looking at whether the law was violated and then ordering a remedy for the individual. But then it is absolutely up to the political legislative branches to look at whether there need to be some protections implemented through laws that would protect police officers, for example.

If everybody does what they're supposed to do, then we can actually have a win, win, win situation. The Gagne is right. I think the structures are there to deliver on all three of those. The principles of police accountability are well known. You know, that starts with, you know, good recruitment and selection of officers, train them properly. supervise them, hold them accountable when they make mistakes. We've known that for decades. If you're the chief of police, you have to deliver on that. Samuel, what about you? I think one of the things that's most interesting about this issue is that when you look from the perspective of officer safety, use of force incidents are situations where officers are often injured as well. I mean, the number one

form of police contact in the United States is traffic stop. If you travel outside the United States. I mean, there are many, many countries, whether it's South Korea, Italy, where you know, you could drive for hours and hours and never see a police officer on the roads. They have a completely different system where, in many cases, they have automated enforcement. They don't find it necessary for somebody with a gun to intervene in your life for, you know, running a stop sign, or having a broken taillight, or having, you know, an air freshener, hang. from your rearview mirror. And at the end of the day, there are a range of different alternative approaches to some of these issues, many of which are now being piloted and scaled up successfully.

Data is starting to come in from some of these approaches, like in San Francisco, where they're sending mental health professionals to crisis calls instead of the police. They're doing the same thing in Portland, in New York. They announced a program, although it hasn't really scaled. So again, I think there's a win-win here where by finding and funding and scaling alternatives that can successfully intervene and resolve and de-escalate situations without the need for police, fundamentally addressing the underlying root cause issues that continue to perpetuate this issue. And that, you know, that makes me wonder about just, again, on a fundamental level, thinking about the cultural conversation around this, we now have this new. word in political culture of abolition. It's not a new new word in movement spaces, but in the political culture as a consequence of electoral politics, there is a broader conversation about, well, why don't we just get rid of police departments altogether? Why can't we just abolish police?

And I want to hear each of you talk about how you think about your work in that context. Do you consider it part of an abolition movement? And if not, what is your relationship to that idea in your work? Sure. So, you know, I am an abolitionist. I believe in abolition. I think to get there, we need to be evidence-based about it. We need to be data-informed.

And we need to know how – what we're talking about is essentially building a new systems of care and support for community members who are currently, experiencing hardship and crisis and situations where the police are being called into. And that takes time. That is, you know, there are many issues and challenges that need to be overcome with resourcing and training and equipping such as such an infrastructure to be able to take on that responsibility. But I think that when we see, when we look at what's happening in cities that have begun to go down this route incrementally, you know, I talked about the, you know, I talked about the

mental health first response programs. You have in San Francisco right now, mental health responders are being called in to the majority of mental health calls. And that's huge, right? So it sounds to me like, Samuel, part of what you're saying here is like, well, thinking of abolition as simply a way,

let's reduce the number of things that police are doing, as opposed to somebody who's better equipped for it. What about you, Professor Mike? Do you have a relationship to this idea of abolition? Does it relate to your work at all? Or how do you think about it? Yeah, I mean, you know, when you think about that term, that means, for me, that means eliminating the police. And that's a non-starter for me. Who am I going to call when my house is burglarized or, you know, someone shoplifts from my store or somebody assaults me.

But that said, there was a part of the defund movement that made a ton of sense to me, which is what we've heard from both Anja and Samel today is take a part of the police business that they're not properly trained for and give that to somebody else. And the co-response models that that Samuel was talking about is a good example of that. And so take part of the budget too. And this has happened in Los Angeles and New York City. Take a chunk of the police budget away from the police, use that money to either create some new organization or give it to an existing agency so that they can take on that part of the police business. That, resonates with me. And I've talked to dozens of police officers who say the same thing. We would

love if somebody else could handle that work so that we don't have to. And the one area now where police are increasingly responding is opioid overdoses. And that's why some officers are now cowering narcan. So now they're acting as, you know, emergency physicians to, you know, to deal with that. You know, the other thing that Samuel said is this needs to be evidence-based. So I don't think we can just jump in without, you know, being thoughtful and without some empirical research that suggests that, you know, this is the, this is a good idea. This is, there's evidence to suggest that we're going to have, you know, positive results when we do this. Anya, does the idea of abolition, is it relevant to your work?

So I just want to say, I definitely don't want to abolish the police. As you can hear from my accent. I grew up in the former Soviet Union in the 90s where police was essentially not present, and my house was burglarized many times, and people assaulted me on the street many times, and police officers were nowhere to be found. So I do believe in this idea that police officers serve a very important function, but also from my background, I believe in this idea of citizens being able to stand up to the government when the government hurts them. Right. And that's where this idea of being able to sue government officials, including police officers, when they violate your constitutional rights, so you can actually take this destiny in your own hands, go to the court and file a complaint and not worry about some sort of a retribution by the powerful, be able to sue them and hold them to account not only for yourself, but also to make sure that the system works better. Also, for all three of you as we wrap up, what do you think the movement for Black Lives over the past, let's call it a decade, has done that other social movements before that didn't do, that has made any, that has shifted a conversation around policing or awareness of policing?

And the answer may be, could be nothing. But do you think something different happened in the course of this movement from the perspective of somebody doing the work, Anya? I think, yes, the movement has been very effective in communicating its ideas, and it's also been helped by the time and place of this moment, right? It's not only body cameras, but it's also citizens with phones being able to record what's happening. I think, for example, with George Floyd, what really resonated is that video where people were just, you know, they stopped what they were doing and they watched this horrible thing happen. Nobody had to tell them that they saw it for themselves. And that's a really, really important part of kind of the change in our thinking. And to that effect, there's actually a very important case that is trying to get up to the Supreme Court right now.

And that's whether police officers can prevent you as a citizen from recording their interaction with a suspect. So that could very much affect that. But I do think that BLM has been an incredibly effective messenger, and also this place and time is helping the message to go farther. That's all. It's a perfect storm of cultural contexts. Professor Mike. Yeah, I agree. because of all the other things that have been happening,

it's hard to disentangle and say that, you know, Black Lives Matter is responsible for this or that. But, you know, I agree with Anya. I think, you know, they provide, they have provided a very powerful, consistent collective voice that demands attention. And, you know, I know chiefs of police

that view Black Lives Matter is valuable partners now. Samuel, thinking back to you is that, that 24-year-old who saw George Zimmerman getting acquitted and thinking, oh, man, this could have been me. The movement that has grown up since then, and here I want to be clear, I'm not talking about Black Lives Matter of the organization. I mean this, the larger movement for Black Lives in this conversation. What about that was a fundamental shift if you saw one in the work of reforming police? So I think that over the past decade, there has been a fundamental shift in the conversation such that now it has become almost undeniable that police violence is real, that it is disproportionately

impacting black and brown communities, especially black communities. And that, you know, this is something that is bigger than any one, two, or three, you know, quote unquote bad Apple officers or one, two, or three problematic police departments, that this is an issue that is much closer to home than I think many people, especially people in communities and power and privilege, were aware of, more willing to admit a decade ago, that this is something that is happening in your city, in your state, not just on TV in Minneapolis, that the shift in the conversation has also produced some real tangible seeds of progress. Not wholesale shifted, I think, the bottom line indicator of how many people are being harmed or killed by the police. But I do think that there have been some important seeds of progress that set us up for the next phase of the conversation. We will have to leave it with that. All three of you thank you for your work and thank you for this conversation. Thank you.

Thank you very much. Thanks very much. That's Kai Wright, the host of Notes from America, which airs on Public Reuters, radio stations on Sunday evenings. And we heard from Samuel Sin Yangway, the creator of mapping police violence along with Anya Bidwell, an attorney for the Institute for Justice, and Mike White, a professor of criminology at Arizona State University. I'm David Remnick, and that's our program for today. I want to thank you for joining us. See you next time. The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker. This episode was produced by Max Bolton, Adam Howard,

Kalalia, David Krasnow, Jeffrey Masters, and Louis Mitchell, with guidance from Emily Boutin and assistance from Michael May, David Gable, and Alejandro Deckett. The New Yorker Radio Hour is supported in part by the Cherina Endowment Fund. Music in this hour was composed and performed by Grey Reverend.