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Cross: Sheriff Russell Martin, Restoring Integrity In Delaware County, Ohio

November 30, 2016 (Fault Lines) — Ed. Note:  Scott Greenfield and David Meyer-Lindenberg cross Delaware County, Ohio, Sheriff Russell Martin, who took over following the resignation of his predecessor.

Q. Some people go to college without a clue what they want to do in life. You, on the other hand, went straight for a career in law enforcement; after you completed an associate’s degree in law enforcement technology at Rhodes State, you went on to Bowling Green U, where you got a bachelor’s in criminal justice. What made you want to take up the mantle of cop? Why not join up directly, instead of putting yourself through half a decade of grueling study? (Was it actually grueling?) Did you have your heart set on the big job, chief or sheriff, from the start? And why did you stay in Ohio?

A. I originally entered college with the intent of pursuing a degree in journalism. It was 1976, and on the heels of Watergate investigative journalism had reached elevated interest. During my high school career I participated in several sports and caught on with the hometown “rag” as a weekend stringer who for a few bucks covered local sports throughout the county. I loved writing and enjoyed picking the brains of local coaches for their sports and leadership tips.

The journalism school was full of incoming freshman and it didn’t take long to discover that the job market would be glutted with aspiring journalists. My dreams of covering the Super Bowl for Sports Illustrated got a quick dose of reality when a long since defunct newspaper’s editor visited a class one day and candidly told many eager freshman that a career in journalism was going to be a difficult task. “Make journalism a minor.” he said.

As the result of spending too much time in the school gym playing pick up basketball, and not enough time on my philosophy and economics courses, I saw my grades begin to dip and started to rethink my career goals. Neither of my parents had attended college, but both had a desire to see their only son acquire a degree. I started to consider a career in the military and when I mentioned this to my father, a former member of the Army, he appealed to me to stay the course.

At about that same time I was seated with a group of students watching a made for TV movie entitled “Helter Skelter.” The movie was obviously about the Charles Manson murders. Students then had to share a television in the lounge and the mini series captured everyone’s interest. I began to wonder about the satisfaction police officers must feel when they take someone off the street who really is a menace to society. I claim that was about the time I became “infected” with the virus that would eventual grow into full-fledged case of “love for policing.”

Our family always had a respect for local law enforcement in the small community in which I grew up and when I mentioned this to my parents, neither discouraged me from the pursuit. But they also desired that I still get a college degree to compliment my career choice. The academic and career journey began with the choice to enroll in a local community college that offered an Associates Degree in Law Enforcement, while exposing me to the realities of policing.

Q. After you completed your studies in January of ’81, you signed on as a patrolman with the City of Delaware Police Department. Along with bad hair and worse music, the early 80s were notable for a nationwide rise in crime, part of what would turn out to be a thirty-year “crime wave.” In Ohio, however, the story was a little different: from 1980 to 1985, violent and property crimes actually fell, and quite steeply.

As a result, were you and your fellow beat cops insulated from the criminal-justice trends – notably, Reagan’s massive expansion of the War on Drugs and all that followed – sweeping the nation at the beginning of your career? Were you stewards or sheepdogs? Talk of police militarization was still decades away, but in retrospect, were there already “warrior cops”? How did policemen (there weren’t many female police officers back then) see their own jobs? What did Ohioans think of the originally Left Coast concept of community policing?

A. I joined the Delaware Police Department after a year of marriage and a stint working in local meat packing plant, all the while taking civil service exams throughout Ohio. I refer to that year as the “graduate school of hard knocks.” Working 12-hour days in a tough environment with few benefits solidified the work ethic that I would need to have a successful law enforcement career. I always say my worst day as a police officer was still better than my best day in the meat packing plant.

That year in that environment helped grow an already deep respect for the laborer, and I believe they are anything but common. It’s one reason of many why I believe in being a good steward of the taxpayer’s dollar. They work hard for their money and deserve public servants willing to work just as diligent and hard with their taxes and for their citizenry.

The police agency I joined was already starting to make changes in professionalizing the department. I was among a group of college graduates that were hired at about the same time. The Police Chief, Dick Browning, was using psychological evaluations to review candidates and had set in motion many progressive policing ideas that saw the department move from local hires with a military background to a broader candidate base, including the first women to join the department. The Chief also applied for and benefitted from numerous grants that were available to purchase equipment. He was also the agency’s first FBI National Academy graduate and understood the benefits of advanced training and education.

Delaware City, located almost dead center in the state of Ohio, had your typical “garden variety” crime. We didn’t deal with typical urban problems at the time and our frequent calls were thefts, domestic disturbances and bar fights. But one thing was evident. There was a growing interest in officer safety and tactics. I believe it was the beginning of a two-decade focus on training officers to be more warrior and less problem solver.

It was well intended, and as a young officer I was not interested in dying in the line of duty. We reviewed data and scenarios in the academy about officer line of duty deaths and specifically the high percentage of officers (over 50%) who were killed with their own handgun when it was taken from them while on a call. I believe it was the beginning of a transition from community policing to an emphasis on survival and suspicion.

It would eventually have the desired effect in that fewer cops lost their lives in the line of duty, but it probably contributed to a sense of slight paranoia that on any given call you could be killed with the gun you brought to that call. Good police officers were able to maintain the balance between relationships with the community you serve and managing calls tactically. But for the next two decades, a lot of training revolved around officer survival. And who would argue against it or the possible unintended consequence? Frankly, we all wanted to get home safely at the end of the shift. Period.

9-1-1 and response time began to impact policing philosophy, and evaluations often mentioned how long you took on calls or your availability. I was once criticized in an evaluation for walking a small block that included a few bars and a movie theatre because I often stopped to visit with the owner of the theatre. Sometimes he would provide observations about what he witnessed outside the bars, but often we just talked about family. For fear of being disciplined in the future, I trimmed back my visits and unfortunately spent more time in my cruiser and less time walking the downtown.

Q. After ten years on patrol, you started getting promoted through the ranks; you held a number of increasingly senior supervisory jobs. One bone of contention for advocates of criminal-justice reform is whether police administrators can be trusted to impose consequences on their fellow cops for misconduct. What about you? Since you’d gotten promoted off the street, were the bonds of camaraderie especially strong? Were you willing and able to punish bad actors? At the time, what kind of questionable behavior was tolerated, and what tended to be punished? How have things changed?

A. Day in and day out, you respond to calls with co-workers that you depend upon to help you quell a domestic or wrestle someone larger than you in a bar fight. You experience and share some of the most intimate and personal struggles that people have in their lives with a handful of fellow cops that very few other people even realize are occurring. You sit in the locker room after each shift often engaged in an informal debriefing about the arrest you made, or what could have happened.

Few professions provide such visceral and raw emotions or experiences. Perhaps only in a foxhole do people bond any tighter than the cops who routinely work together on shift for several years. When they work in concert on high-risk calls and restore safety and order in the midst of chaos it can be a beautiful thing to observe. But it does create alliances and allegiance to each other that if left unchecked or unrealized can cause co-workers to struggle in ethical decision-making.

The struggle is the result of human nature and empathy, not some inherit desire that turns those in authority into abusers of their responsibility. On one hand you want to hire people capable of empathy and concern, but then we ask them to dial it back when they develop those same feeling toward coworkers. But the reality is that when you apply the social contract theory to American policing, the expectation by the community you serve is that the police are held to a higher standard. And rightfully so.

I had to discipline a sergeant when I became Chief for conduct that I strongly believed compromised community trust. This sergeant and I had handled the most high profile homicide cases in our community when we worked in the same division and prior to my promotion to Chief. And yes it was one of the most difficult and emotional issues that I ever had to contend with.

For years it impacted our relationship and on some level the matter divided the agency between those who thought I was doing the right thing and those that thought I had become insensitive and too political. I learned some painful lessons during that time and realized that often in leadership you sit in a lonely chair. I have now taken the experience and incorporated it into ongoing reinforcement within my agency and the outside officers that I instruct on community expectations and the value of understanding the Social Contract as a cornerstone of our democratic and representative government.

Q. In 2003, you received a prestigious invitation to attend the FBI National Academy, an elite police-training course. How’d you get the nod? Are the feds, now of junk science and systematically worthless labs fame, really the crime-fighting geniuses they’re cracked up to be? Were you able to put your newfound contacts to good use? You’re an advocate of local accountability for police forces – is there something vaguely sinister about getting the best and brightest from the nation’s PDs to fall in line behind the FBI’s standard? And was it as grueling as they say? Did you run, and survive, the Yellow Brick Road?

A. Every few years, the administration within the Delaware Police Department would pick and submit for consideration a member of the agency whom they considered a possible choice for future promotion or appointment for greater responsibility. I made it known that I had a desire to pursue promotion and that I wanted to be as prepared as possible if and when the opportunity presented itself. I was honored when I passed the vetting process. Considering that each previous candidate from our department had risen to the position of Chief, I presumed the training was of value.

I was not disappointed in my FBINA experience. It remains a career highlight and one of a handful of associations within my life that has had significant ongoing professional impact. The course work was challenging, requiring responsible self-initiated study coupled with some of the best instructors I have ever sat under. But just as important was the opportunity to sit either around the dinner table or in work groups with law enforcement officers from all over the world reviewing a host of ideas as they related to how to improve policing. I found that most participants were responsible, successful officers who cared deeply about the communities they served and the profession they had chosen. I also gained a new confidence that my ideas about law enforcement were relevant in any setting.

I have no false perceptions about our federal partners. On the contrary, the ongoing exposure to them and most other agencies revealed men and women of genuine humility that wanted to learn from each other for the sake of improving their capabilities and improving their communities. As for the networking; to be able to connect with FBINA graduates around the world, especially when we are exposed to borderless crimes, is an invaluable resource. On my first family trip to Paris, it was an FBINA grad that picked us up at the airport and later treated us with a visit and meal with his own family; a cultural exchange that has given us a greater appreciation for European history, the French revolution and our current partners in the ongoing war on terrorism.

My Yellow Brick Road maintains a prominent position within my office. A daily reminder of this lasting experience.

Q. One year later, and 23 years after you signed on as a patrolman, you became Chief of the Delaware PD. You must’ve had mad skillz to secure that promotion, because if seniority and experience were enough, everyone would get a turn at the tiller. How’d you emerge as the candidate of choice? And once you were in charge, what were the changes, big and small, you made to the department? What were your goals in making them? Were any in fact necessary, or was everything going swimmingly in ’04? Did the rank-and-file resist your tyranny, or did they welcome you as chief with open arms?

A. When I look back on my career, I had more losses than victories as it pertained to promotional opportunities. It just so happens that through perseverance and timing, the promotions eventually added up to the appointment as Chief of Police. The selection process included a national search and an assessment of the final candidates; a process I scored highest on, but still didn’t assure me of the promotion. The City Manager had the final decision in the appointment and one of the other candidates was also an internal competitor of higher rank.

Fresh off my stint at the FBINA I did have a quiet confidence that after sitting in classes with law enforcement executives from around the world, I felt just as capable as many of my national and international peers. I also had confronted career disappointment in the past and felt like it prepared me to handle the very public process of the Chief’s appointment. Throughout the process I stressed two things that I believe separated me from the competitors; 1) I had scored the highest on the assessment 2) No other candidate could assert that they had supervised every division within our agency. And personally, my theology provided a peace that whatever was to ultimately occur would serve a greater purpose in my life and for the greater community. Frankly this belief and mindset eliminated a lot of the internal pressure and enabled me to perform transparently with greater confidence.

Eventually, as the process wore on, I asked the City Manager directly what else he needed to make his decision. He reminded me that the Chief of Police hire is the most significant appointment a City Manger makes. It carries the greatest liability and sets the tone for the community. Eventually, he offered me the opportunity and although my father had been deceased for a few years, my first thought was “I wish I could experience this with my Dad.”

There are advantages and disadvantages in getting promoted within your own agency. The advantage is that you know the agency and they know you. The disadvantage is that you know the agency and they know you. Although I inherited a good police department, the City Manager assured me he did not want a “caretaker” but a problem solver. The other internal candidate told me early on that he could not work for me and that probably became the first issue to contend with. Eventually he would retire and move on, and that issue resolved itself.

Over the course of the next eight years, I focused on consolidation of services, dealing with the economic downturn, developing succession and creating an environment where we wanted to focus on problem solving policing not just the traditional responses.

Q. Eight years in, your tenure as Delaware chief came to an abrupt end when then-Sheriff of Delaware County, Walter “Magnum” Davis, agreed to resign his post and never again hold office in exchange for a deferred prosecution agreement. (He’d gotten caught spending county money on an out-of-state trip with an alleged mistress.) And his predecessor as sheriff lost his job after he pleaded guilty to two misdemeanors. You were tapped to serve as interim sheriff until the November elections.

With about 200 employees, the Delaware County Sheriff’s Office was a bigger enterprise than you’d ever run before. Not only that, but it was mired in scandal, and it was your job to turn the ship around. Were you at all apprehensive about leaving your job as chief (and, by that time, President of the Ohio Association of Chiefs of Police) behind for a challenge like that? What did you have to do to clean up the department? How deep did the rot go? Did the actions of your predecessors reflect on the rank-and-file, or were they ashamed and embarrassed by what had been going on? Was it difficult to win their trust? At least you didn’t have to worry about losing the election, right?

A. I was very comfortable as the Chief of Police of the county seat. I was enjoying the opportunities and challenges provided as the President of the Ohio Association of Chiefs of Police and advocating at the state level for Ohio’s law enforcement agencies. I had no political aspirations at the time, but I was also disappointed in seeing how poorly the Delaware County Sheriff’s Office had been managed. I was partnering throughout the state on initiatives for policing, but in our own county the Sheriff refused to work with local law enforcement to share and improve services countywide. It was exasperating, because I knew the potential that could be leveraged by working with the other agencies in Delaware County.

I had little time to consider pursuing the appointment and subsequent election to Sheriff. I would have to retire, resign as president of the OACP, take an initial salary cut and tackle the problems left behind by the previous Sheriff. Exiting church one morning, during the consideration stage, my wife looked at me and could probably sense how I was laboring over the decision. She sealed the deal when she stated simply, “If you think you can make a difference I’ll support you.” It was all the affirmation I needed. Some said after that I left the frying pan for the fire. I was not in a frying pan…I had been sitting in a very comfortable chair when I jumped.

I really thought after 32 years my reputation would precede me at the Sheriff’s Office. Although I had worked with many members of the Office, I soon learned that I had to start all over gaining the trust and confidence of most co-workers. Frankly, I will confess that I thought too highly of my leadership ability and presumed in a year we would be recognized as one of the best Offices in the state. It has taken four years for many of my co-workers to believe I am who I say I am. But I also believe that they had been so poorly lead by the previous Sheriff that trust in the position had been significantly eroded.

I quickly learned something else about myself. I had 32 years at the previous agency and had a deep abiding affection for that department and my co-workers. Within a few months, that same sentiment was realized in my own life for this “new” Office. It confirmed for me how much I care about this profession, the men and women who serve and the community we work in.

Q. As sheriff, you’ve signed off on hundreds of SWAT raids on the homes of suspected drug offenders. You’ve defended the practice before, notably in a debate with Radley Balko; you said the routine use of SWAT teams works to people’s benefit because it helps keep cops safe, who in turn protect the public.

Setting aside the property and psychological damage, the loss of community goodwill, the inevitability of the shot dog, the potentially horrible mistakes like raiding the wrong house or dropping a flash-bang in a baby’s crib: What kind of “protection” is it when the people who interact with cops are forced to bear all of the risk? When it’s the cops who, between their aggression and their fear, generate most of the danger? Are you, perhaps, prioritizing law enforcement over protecting people?

In addition to criminal priors, you’ve said you factor whether someone owns a gun into your decision to send a SWAT team. Is it right to penalize the legally innocent people on whom you serve warrants for exercising their constitutional rights? Would other metrics be cool? Statistically, African-Americans are responsible for an outsize share of violent crime. Are black suspects deemed more deserving of a visit from the guys with BearCats? Where do you draw the line?

A. I have respect for Radley Balko’s research and observations. I provided copies of his book to all the law enforcement executives in the county. I also believe that a piece of equipment doesn’t necessarily equate to a militarization of police. It’s policies, practices and leadership that define how we do our job in this profession. We’ve given serious consideration to how we utilize our multi-agency tactical unit. First and foremost, we emphasize training and industry best practices. There are far too many “SWAT” teams in place that probably don’t have the oversight needed to make sure they are responding to community expectations.

One of the first things I did when I became Sheriff was create an Executive Board that oversees all of our countywide joint work groups. Although the sitting and voting members remain law enforcement executives, we have routinely invited the city managers and township managers to the table. We possess a working group of law enforcement executives that include Chiefs who do nationwide agency assessments and are forward-thinking problem solvers. We also have representatives from the County Prosecutor’s Office at the table reviewing our policies and procedures. Much of our work is then returned to local agencies and shared with local citizen academy groups.

I currently employ three analysts in my Office. The Administrative Analysts assigned to the countywide work groups is tasked with measuring and looking for metrics that determine our effectiveness. By and large, in our county the Tactical unit is deployed to respond to barricade and hostage situations. I’m responsible not only for the safety of our citizens, but the men and women I direct. The use of special tools and equipment more often than not is used to minimize exposure of risks to all the parties involved.

Q. Then there’s asset forfeiture. Where do you stand? Indispensable law-enforcement tool, needed to keep kingpins from gifting drug money to their girlfriends? Tyrannical way to expropriate the innocent? Convenient way to plug a hole in the budget? What’s your office’s asset forfeiture program look like? How much are you confiscating? Do you cooperate with the feds?

In June, Ohio’s House passed HB 347, which, if enacted into law, would keep police from confiscating unconvicted people’s stuff and restrict access to the federal Equitable Sharing Program. (It’s in limbo in the Senate.) Do you support it? Surely not? What would your friends from the National Academy say?

A. In regards to seized assets and the value they have impacting the struggle to control the distribution of illegal drugs, I don’t believe you throw the baby out with the bathwater. In Ohio, I do not believe law enforcement has abused the asset seizure laws. There are enough safeguards in place to protect the truly innocent.

I don’t want to be a part of separating citizens from their lawfully gained property. It is a fundamental right in this country. But I don’t have any problem separating drug money from dealers who exploit peoples’ addiction for their financial gain. We recently converted $27,000 of locally seized drug cash to assist a shelter for victims of domestic violence, and I routinely look for ways to promote substantive educational programs with lawfully seized assets from drug dealers. Knee-jerk reactions by the legislature rarely provide substantive solutions, but they do sound good in an election cycle.

Q. Finally, there’s discipline. You’ve proven on several occasions that you’re unafraid to drop the hammer when cops misbehave. At the same time, Ohio has its share of police unions and loudmouth union reps. Do the Steve Loomises of the City of Delaware make your life hard? What about the voting public? Nationwide, police departments are having a bit of a PR problem. Has the storm of anti-cop outrage passed you by, and if so, how’d you manage it?

A. I said early on that we will train those that don’t know and discipline those that don’t care. Fortunately, most care and dare deeply. But I have no toleration for those who will tarnish this profession. Far too many serve for all the right reasons, and when one misrepresents us, they have eroded some of the community trust that has been afforded for us to do our duty.

I grew up the son of a union laborer who spent 42 years working in the same factory. I heard around the dinner table my father discuss some of the protections the union afforded and how they helped leverage raises in an industry driven by the bottom dollar. When I started policing, we had no union and frankly very little say in compensation. I loved the job but as I desired a home and opportunities for my family I realized that early salary comparables would probably resign us to a pretty moderate lifestyle. There were genuine discussions around the table between my wife and I about career options. Pursue the possible salaries associated with the private sector or maintain a life in public service. She was a schoolteacher and we both very much loved our jobs. But in the early 80’s, when college graduates were recommended for the policing profession, we often looked at our peers and wondered about our future.

The Union’s helped bring salaries up in the 80’s and I believe the realized benefit to that was greater retention, a more competitive labor pool and greater expectation from the community to earn that salary. But we have entered a new normal after the economic downturn of 2008, and public servants need to be very careful not to become greedy. There is a delicate balance between fair compensation and pricing yourself out of the market or alienating the constituents you serve. Just as importantly, we all owe it to the communities we serve to work diligently for them and manage our budgets with great stewardships.

The relationship between management and the union can be successful if they genuinely share the same goals; to provide quality law enforcement to the community they serve. Frustration develops when management fails to listen to the concerns of front line officers and when the union overreaches in dictating policies that inhibit best practices or becomes unreasonable in protecting officer’s behavior that erodes community trust or expectation.

I don’t believe the current arbitration process is most effective. I have a hard time with a third-party arbitrator who has no ties to the community dictating policies and then riding out of town, leaving behind the law enforcement executive to deal with the fall out. But by and large, when parties are reasonable and emotions and personal agendas are set aside, management and the union can coexist. Like most conflicts in life, it comes down to the personal relationship and trust.

Q. A couple weeks ago, you won re-election to another four-year term. (Congratulations!) What’s in your future? Got any big plans for the sheriff’s office? How about running for higher office, in 2020 or beyond? Or is a lifetime of herding cops enough for anyone, and you can’t wait to get out of government? What’s in the cards?

A. I recently reorganized the Office into four divisions, all supervised by Directors that have been tasked to focus on employee development, especially leadership and accountability. What you don’t audit you accept. We want to look even closer at how and why we do what we do. My staff knows my desire to have an internationally accredited operation and be known as one of the finest Sheriffs Offices in the country.

I’m not satisfied yet and complacency is not a part of my psychological makeup. Law enforcement around this country has faced the most turbulent and difficult challenges it has ever confronted in these last two years. I want to see it through and continue to advocate for and support this great profession. I’ve spent more time reviewing the Federalist Papers and Jean-Jacques Rousseau’s Social Contract essays in recent years. I do believe quality law enforcement is a partnership with the community and an honorable profession that can greatly enhance constitutional freedoms and quality of life on the local level.

I feel like I still have a lot to contribute on the topic of leadership and law enforcement. I make it a practice to focus on the job at hand and the people have elected me to be Sheriff of Delaware County.  I am still humbled and honored that God would allow me this privilege and the people of this great county have provided for me the opportunity. I can’t talk about leadership and its value in tough times and walk away yet. We’ve still got work to do. And frankly it’s still better than working in the meat packing plant.


Cross: Dara Lind, Keeping Criminal & Immigration Law Honest At Vox

November 16, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Vox “explainerd” on immigration and criminal justice, Dara Lind.

Q. You’re a Yalie, seven years out of college, and an anthropology major to boot. Were you one of those grubby forensic-anthropology types, slumming it in the mud, or were you drawn to the cerebral, cultural side of things? And what are you doing slumming it as a crimlaw journalist? Ever consider going to law school? Did you have an interest in criminal law at Yale? Where did it come from?

A. It’s a matter of family lore that, the first time my father held me (his firstborn) in his arms, he told me that I could be anything I wanted to be in life — but please, God, don’t be a lawyer. And like any good millennial, I have a codependent relationship with my parents 😀

JK. This is the real reason that story matters: my father had earlier in life left the radio industry to get a very fancy law degree, and then spent a few years in New York entertainment law, before realizing that the fact that he “oughta be a lawyer” (because he was good at writing, public speaking, and arguing) mattered less than the fact that he was freaking miserable practicing law. So when I turned out to be especially good at writing, public speaking, and arguing, I knew better than to give in to the “you oughta be” line.

It would be tremendously helpful to me if I had a legal credential. I’d like JD degrees to be subject to the rules for chair tests in high-school band: I’m sure I could find people who would lose their diplomas to me in a one-on-one Law Challenge. As it is, I know myself well enough to know I would be a terrible law student. I simply do not care about easements, and I’m not very good at doing the reading on subjects I don’t care about.

My legal education has instead come through legal anthropology, and then through the areas of policy (immigration and criminal justice) that tend to be built most firmly on law. My anthropology degree was the result of taking a bunch of classes in social theory (I essentially majored in Bourdieu) and then writing papers on immigration policy in the United States. I’m kind of a failure as a poststructuralist; I believe firmly that power works through subtle and symbolic ways, but simply as a matter of triage I tend to care more about blindingly obvious expressions of power like deportation and incarceration.

I wrote my senior thesis on immigration court after spending a summer watching proceedings in Minnesota; I saw about a dozen people get deportation orders in two hours on my first day of observation, and have never felt more inclined to smash the state in my life.

Watching a trial court in an administrative-law system is a really good object lesson in how lives get abstracted to fact patterns, and in discretion as the chief way to exercise power, because immigration judges had (or at least were willing to exercise) so little of it. Attorneys and defendants literally got a handout listing three hypothetical fact patterns, two of which wouldn’t qualify for relief and one of which would; the best way to get relief was to show how identical the facts of your case were to the third case on the handout.

That’s very different from the legal education that you get from actually studying law, which tends to be about the transmutation of facts into law and the flexibility and power of argument within a case.

Q. You were a well-known student activist at Yale; your cause célèbre was immigration reform. Would it be indelicate to ask where the interest came from? With so many worthy causes to choose from, why this one? What was it like, advocating reform in the dying days of the Bush administration, when it still seemed like the next President might turn things around? Did you plan on parleying student activism into a career?

A. I’m pretty sure the real student activists thought I was a crypto-Nazi, or at least a neoliberal sellout. I lived with members of the Party of the Right and used words like “discourse” a lot. My activism, to the extent that it existed, was a function of my interest in immigration.

The summer after my freshman year, I was an intern with an education nonprofit in Louisville working on Hispanic outreach programs. At one point I was analyzing a bunch of grant applications, and pretty much every district said the same thing: they couldn’t build a relationship with the parents of a student if the parents were afraid to come to school, because school officials were part of the government and the government might deport them. It immediately became clear to me that immigration status is (as the anthropologists put it) a “master status”: something you can’t fix other problems without addressing first.

When, the next summer, the city of New Haven passed a municipal ID program — and then the next day ICE arrested a few dozen immigrants in an early morning raid on a Latino neighborhood — it was too obvious a case of retaliation not to be galvanizing. At the time, there were serious worries that the lists of municipal ID holders would be FOIAable by anti-immigrant groups, so there was a lot of interest in getting as many people as possible to sign up. I helped the city of New Haven get in touch with student groups and set up a week of open signups on campus: hardly a notorious activism career.

I definitely figured that my senior thesis was going to be a historical artifact, because I figured that at the very least the Obama administration would fix the immigration-court backlog. But looking forward to the Trump administration, I’m glad to have some understanding of what it looks like when the federal government wants everyone to know how tough it is on immigration enforcement.

Q. After you graduated, you spent a year guest blogging at several progressive outlets, including The American Prospect, ThinkProgress and the now-defunct Firedoglake. We keep getting told that the collaborative-blog model exemplified by the likes of Vox and HuffPo is the future of journalism. Back then, did blogging even pay the bills?

Was it a temporary gig while you looked for more stable employment? A good alternative to the unpaid-internship circuit? Or was it exactly what you wanted to do? Were the soapboxes you were given big enough? How about reader engagement? Does a 23-year-old have the ability to ask deep, thoughtful questions? Answer them?

A. To the contrary, blogging nearly cost me steady employment. I was trying to juggle it with a full-time job in advocacy, because I was too annoyed with the state of immigration reporting in 2010 (which generally showed less policy literacy than I had as a 22-year-old) to turn down opportunities to do it better. I had asked for my office to draft some sort of “social media policy” that would establish what I could do on the side. I ultimately figured it was better to beg forgiveness than ask permission.

I thought I was flying under the radar until I wrote a blog post pointing out some Spanish/English doubletalk from a politician my employer was still trying to stay on good terms with. I got…a talking-to. I don’t know how close I actually was to losing my job, but it’s the only time in my career I thought that’s where the conversation was going.

At one point, I tried to transition to journalism full-time, but the outlet I’d decided I wanted to work for did not agree. I realized I was either going to have to develop some actual reporting chops or just give it up – and that I couldn’t do the former while doing a day job I cared about. So I picked the latter.

Q. You spent nearly a year and a half as the Senior Policy Associate for America’s Voice, the immigration-reform advocacy group. As with most organizations of its kind, the official titles aren’t exactly descriptive, so we’re going to come right out and ask: what did you do there? By then, you were an established writer– did they hire you for that reason? For your immigration chops? Were you looking to become a policy wonk, a lobbyist? You set up shop in DC, the progressive’s mecca. Were you fully prepared to be thrust into that arena? Ever wish you’d stayed in Connecticut?

A. Remember that I graduated into the maw of the Great Recession. DC was the only place I could possibly get hired (especially because my only internship experience was in the nonprofit sector).

I spent a miserable summer in Kansas City after graduation, which allowed me to save up enough money to move to DC without employment, but also reminded me that I’d gotten out of the Midwest because I was sick of people mocking me for using big words, so I happily fled back to the East Coast where all my friends were.

(A few months after moving to DC I made the brilliant mistake of falling in love with someone else who had escaped the Midwest and worked in an industry that only existed in DC, so my fate got sealed pretty quickly.)

I actually started at America’s Voice in October 2009 — titles are so fungible that I had 3 different titles over my time there, which explains the confusion on my résumé. I was told that the job might not last more than a year, because the organization planned to pass comprehensive immigration reform in 2010 and then dissolve. I was there for five years.

I got hired because I cared about immigration and could write a press release quickly (the time I spent doing communications for extracurricular groups at Yale was much more relevant to my career than my degree was). I spent the next several months writing talking points for police chiefs and faith leaders, because of course a 21-year-old nice Jewish girl is immensely qualified to tell black pastors how to talk about immigrants.

I realized pretty quickly I wasn’t cut out for communications. When I got on calls with think-tankers to develop talking points, they were the ones stressing their topline message while I tried to pick apart their methodology. So over time, I ended up taking on more political and policy tasks.

I live-tweeted House hearings (and got a lot of stink-eye from congresspeople who assumed, I guess, I was just sitting in the hearing room texting the whole time). I parsed the shit out of offhand comments made on immigration by random back-benchers in town-hall meetings, trying to reverse-engineer, from talking points, what sort of policy compromise they’d be able to accept without being accused of flip-flopping. I did a bunch of Spanish-to-English translation of work under other people’s bylines, which means I can’t tell you what it was, but believe me, I’m really good at it.

Oh yeah, and one time I helped deliver a couple hundred cantaloupes to Republicans in Congress (after Steve King famously said that deferred-action recipients were all drug smugglers with “calves like cantaloupes”). The success of that stunt made us cocky enough to follow up with a dozen frozen turkeys before Thanksgiving, which resulted in us having to pull an “Am I being detained?” when cornered in a side room by a Capitol Police officer and more or less chased out of a House office building. I was a little relieved when I got my Hill press pass for Vox; I wasn’t sure my name wasn’t on a blacklist somewhere.

Q. The big federal immigration story in 2013 was S.744, the Senate reform bill sponsored by Chuck Schumer and his “Gang of Eight” (including Marco Rubio, a fact that would come back to bite him in the ass in this year’s primaries). You covered it extensively while you were at America’s Voice. Was it everything you wanted from a piece of immigration-reform legislation? Did it compromise too extensively? Was it entirely off the mark? Though the Senate passed it, it died an ignominious death when the House declined to take it up. Did the bill have a noteworthy legacy? Were you, perhaps, startled by subsequent Republican support for the E-Verify system?

A. If anything I was surprised at how little of a push got made on E-Verify once the GOP took back both chambers, given that the House had tried to pass mandatory E-Verify in 2011 — and while the system is still flawed, it appears to be better now than it was then.

Comprehensive immigration reform was never a strategy everyone loved, obviously. But it was one way of solving the fundamental dilemma of immigration policy, as it’s existed since 2009 or so. There are 11 million unauthorized immigrants in the US; most people don’t want all of them deported. At the same time, the US/Mexico border is fairly secure by historical standards, but calls to “secure the border” tend to drown out arguments for further changes to law — and no other change to immigration law is actually popular enough among both politicians and the public to push through the border panic. So how do you reassure people that the border is secure, and move forward with other reforms?

In 2009 and 2010, President Obama tried to answer this by stepping up deportations; in S744, as it ultimately got passed by the Senate, it was done by focusing on inputs (number of Border Patrol agents, amount of money spent).

The problem is that symbolic politics are rarely just symbolic, so the real question is how much real suffering you’re willing to cause in the name of catering to people’s feels. The S744 “border surge” made it impossible for feels of border insecurity to derail the rest of the bill, but also would have caused real harm by further militarizing border communities.

(Arguably, if you want to make people feel safer about the border without doing anything, “build a wall” is probably the way to go — you build it, you say “Look, it’s built!”, you move on with legalizing people who are already here. But the incoming administration is not as committed to building the wall as it is to deporting people, so.)

By the time S744 was drafted, the framework of “comprehensive immigration reform” had remained unchanged for several years, which made it a little overbaked — it was impossible to make individual legislators feel like they’d won meaningful concessions, and people don’t fight for things they’re not invested in. (A less kind way to put this: members of Congress have never seen an issue of principle they can’t reduce to an issue of ego.)

At this point, the coalition that made “comprehensive immigration reform” politically appealing has been blown to smithereens — you pretty clearly can’t persuade Republicans in 2016 to get on board with expanding immigration just because business likes it. Arguably, it was blown to smithereens the minute the law passed. The organization I worked for had mugs made with some of the best provisions of the bill, as a memento for some of the people who’d worked on it; weeks after they were delivered to the office, we still had a whole box of mugs, because none of the Republicans we were hoping to give mugs to were returning our calls.

The next time the opportunity comes up for Congress to pass a big change to immigration law, the politics are going to be very different, so S744 won’t make very much sense as a model. Whether that’s a good thing depends on what happens instead.

Q. In lieu of legislative action on immigration, President Obama decided to take action himself. At a cabinet meeting in early 2014, Obama declared that he had a pen and a phone and was going to use them. He originally created DACA – his Deferred Action on Childhood Arrivals policy – by executive action in 2012, following yet another Congressional refusal to pass the DREAM Act. His November, 2014 changes to DACA amounted to an enormous deportation deferral, potentially covering nearly half of the nation’s illegal immigrants.

Is it constitutional, let alone wise, for the President to usurp Congress’ role by executive fiat? Given that Donald Trump is poised to wield the same power Obama did, he may very well use it to revoke Obama’s orders – and pass some of his own that’ll take the nation in a very different, un-progressive direction. At Vox, you’ve been a notable cheerleader for DACA. Has anything changed?

A. The executive branch has a ton of statutory authority on immigration enforcement; Donald Trump would have had just as much ability to deport every unauthorized immigrant in the US had he been elected in 2008 as he does now. The limiting factor is resources. Nothing changed in immigration law between 2001 and 2007 to make deportations easier, but post-9/11 budgeting did, and deportations more than doubled as a result.

At the same time, prosecutorial discretion is an uncontroversial legal principle. With the exception of traffic violations in the age of red-light cameras, perfect enforcement of violations of the law is always impossible, and the question facing prosecutors is whether to engage in deliberate triage or fill up dockets opportunistically. When you don’t have the resources to deport everyone, but you have the resources to deport a lot of people, how you choose which ones to deport becomes super relevant.

The story of the Obama administration’s immigration policy is, in large part, a battle between labor and management over where in an agency prosecutorial discretion resides. The White House felt that agency management had the power to dictate where resources go; the agents feel they’re being deprived of their ability to make case-by-case determinations.

When I worked in advocacy, we’d occasionally get word that a college student, or the mother of a toddler, had been detained by ICE, even though the Obama administration was going around saying they weren’t deporting students or parents. We’d mobilize activists to send faxes and phone calls to ICE headquarters in DC, in the hopes that, if the case became enough of a headache, someone in DC would make an angry phone call to, say, the Detroit field office, telling them to drop the case. That’s obviously not an ideal way to implement policy!

The Obama administration ultimately decided that the only way to guarantee that management could dictate prosecutorial priorities was to allow immigrants to apply for protection proactively, taking the decision out of ICE agents’ hands.

When the deferred-action programs got challenged in 2014, the administration found itself arguing that Citizenship and Immigration Services did still have discretion in looking over applications, as a way to claim that the deferred-action program wasn’t a regulation (and therefore didn’t need to go through the notice-and-comment process). But though I’ve heard about cases where people got rejected even though they met all the qualifications on paper, the government never really made the case for that in court. As far as I’m concerned, the constitutional weakness is probably there: not in what the administration did, but how.

What I’ve never understood was how the expansion of deferred action in 2014 was unconstitutional, but the original Deferred Action for Childhood Arrivals program in 2012 — which, if anything, was much more clearly analogous to a bill Congress had just failed to pass, and which the states in the US v. Texas case were using to argue the new program would be implemented unconstitutionally — was kosher. The Fifth Circuit totally punted on that, and I would have loved to see whether the Supreme Court was willing to follow the states’ argument to its logical conclusion.

Q. And that brings us directly to our next question – in March, 2014, you left America’s Voice to sign on with Vox. How come? Missed blogging? The thrill of seeing your name in print, or pixels perhaps? (Given that you stayed, it can’t have been that you were sick of Washington.) At the time, Ezra Klein and Matt Yglesias had just founded the site; you were part of the original team. What was so new, so revolutionary about it? What made you want to sign on? Was its emphasis on liberal politics part of the game plan from the start, or was it the organic result of the people writing for it? Did working for Vox make you rethink your duties as a journalist, and if so, what did you conclude?

A. I spent about three years trying to figure out how I could forge a career in policy without going either to the Hill (too outspoken) or to grad school (too poor, bad at delayed gratification). But by the beginning of 2014, I was sick of people assuming that, because I was a 25-year-old woman, I didn’t know exactly what information was and was not publicly available about deportations of “criminal aliens” (something I’d been following as a wonk side project for years). So I figured I’d go to grad school, get the credential, maybe grow a few gray hairs for gravitas.

When Ezra and company left the Washington Post to start a new site, my partner tried to get me to apply, because it was such an obvious fit for me. “Explaining complicated systems to interested people” was my career mission statement years before I went to a site that explained the news, and while the state of immigration reporting in 2014 was better than it had been in 2010, it still wasn’t being taken seriously enough as a policy issue for my liking.

But it had taken me three years to decide what I wanted to do next with my life, and I did not want to reconsider again. I told my partner I’d offer to freelance for the new site as a grad student. Then Ezra himself emailed me with a request to talk.

Ultimately, he persuaded me that a high-profile byline would give me the same social capital as a graduate degree, and that “instead of you paying them, we’d be paying you.” (Fact check, Mostly True. Given how much all of us worked during the first year of the site and what we were getting paid, I have no idea what our hourly wages came out to and I don’t particularly want to run the calculations to check.)

Because I was coming out of advocacy, my editors were initially concerned about a liberal bias in my reporting. Vox has never tried to be liberal; to the extent that our writers tend that way, it is, as you say, the result of organic network effects. Personally — and everything I say about my site should be taken as me speaking only for myself — I would love it if we had more ideological diversity.

What Vox is, though, is positivist journalism: here are the consequences of these choices; here is the choice that does the most to accomplish the stated goals. The problem is that not everyone’s goals are the same; to paraphrase something I heard about game theory once, what does a utilitarian do with people for whom “utility” isn’t happiness but Godliness? And while positivist journalism is better built for a lot of things (like assessing truth claims) than traditional he-said-she-said journalism, it isn’t built for debates that are built on irreconcilable values.

The solution to this, as far as I’m concerned, is to be honest about what the values of all participants are. Done right, this is actually better than he-said-she-said journalism, because it allows you to ignore incorrect factual smokescreens and grab onto the values arguments that aren’t being voiced.

When I write about “self-deportation,” for example, I always try to point out that stepped-up enforcement is going to make the lives of unauthorized immigrants harder, and that for supporters of self-deportation that is the point — they feel the cost of violating immigration law should be as high as possible.

This might appear biased because, to people who don’t agree with that principle, the logic seems cruel. It might seem less biased to assume that people believe in more immigration enforcement because, say, they’re primarily concerned about welfare use. But it’s not the job of journalists to put people’s positions in the terms we find most palatable; it’s our job to present the values people themselves find most important.

Q. Vox is where you started spreading your wings as a crimlaw journalist; in the past, your focus was more on social issues. Why did you decide to make the change? Given that you’re neither a lawyer nor someone who, like Radley Balko, has spent many years on the beat, how have you’ve managed to make a success of it? Crimlaw journalism is one of those areas where emotions and political bias can get in the way of the facts; have you managed to avoid those pitfalls? Is there any pressure at Vox, like Slate, that encourages a less objective viewpoint? Given the right circumstances, can neutral journalism be more of a hindrance than a help? What’s the right way to look at a crimlaw issue – complex and unsatisfying, or simple, easily digestible?

A. I am going to send this to all the immigration lawyers I know and tell them that a crimlaw blogger called their field a “social issue.” I imagine the result will look something like this.


I think of both criminal justice and immigration less as social issues than civil issues; they both involve complicated apparatuses of law and policy  that have real and discrete impacts on people’s lives, but the public debate about them often pretends that all policy is just an expression of normative or “culture war” values. “Tough on crime” is a slogan without policy meaning that nonetheless has policy consequences; so is “end mass incarceration.”

If I know anything at all about criminal justice, it’s because of my partner, who is always happy to discuss collateral consequences over dinner. (We are fun at parties.)

Since he, like me, is also a wonk who is not a lawyer, my understanding of criminal law is pretty purely reflected through policy; I think of myself as a criminal justice journalist rather than a legal journalist. That probably gives me a bias — not toward emotions, but toward consequences – that I know can run counter to the logic of law.

There’s a tendency in criminal-justice and legal journalism to apply existing frames to new cases; that’s what determines which cases are newsworthy. (Consider the median coverage a police shooting of an unarmed black man gets now versus 2012.) Those existing frames are often built by politics: poor police-community relations and implicit bias in policing; rape and rape culture; overcriminalization. This can make for some terrible journalism. It is what leads journalists upset with the outcome of a case to say the defendant “got off on a technicality,” which is a phrase I promise never to use on pain of forfeiting my paycheck to the NACDL.

But this is not an inevitable consequence of talking about law in terms that are more lay-friendly than the terms in which lawyers talk about them.

There’s a difference between ambiguity and ambiguousness. Most things are complex and unsatisfying, but that doesn’t mean that you can’t identify particular axes of disagreement and lay those out, or explain how the same dilemma, played out over and over again, can create clear systemic problems. The question of “should defendant X take a plea bargain?” is usually a lot harder to answer than the question of “is the fact that 95% of defendants take plea bargains good or bad for the system?”

Laypeople need to have some understanding of how law works (inter alia, they’re the ones who have to serve on juries and elect prosecutors). And if journalists aren’t actually making it easier for laypeople to understand than an expert would, there is no point to journalism.

Q. Let’s be blunt: Vox has come in for its share of criticism. A recent Current Affairs op-ed by Nathan J. Robinson attacked your outlet (and its writers) not just for factual errors and style, but for an alleged tendency to see itself as the arbiter of what’s true and correct when there’s little basis to support that’s the case. Any truth to that? Are you entitled, snot-nosed kids condescending to the rest of us, or do Robinson and his ilk not get what you’re up to? Vox’s self-proclaimed goal isn’t to provide facts, but to process those facts, come to the right conclusions and make them easily digestible for its readership. Is it possible that nuance gets lost along the way? Is humility important? Is it a help or a liability that you guys are so damn young?

A. Stentorian lecturing is not actually any more appealing when it’s being done by an older person, though! I have spent enough time listening to Boomers to know this.

I think of condescension as treating readers as if they’re not smart. A lot of “news” writing for women, in particular, appears to be written for someone who doesn’t actually care about global affairs but has to make small talk with the boss in the office elevator. Blech. Spare me.

Vox assumes readers are smart, but not necessarily perfectly informed — i.e., that those of us who get paid to know these things for a living do in fact know more than people doing other things with their lives. (That makes it super-incumbent on us to be right. This is the most important use of humility for a journalist: making you careful enough before publication that by the time you publish, you’re damn sure everything’s right. Whenever I get something wrong, it’s because I’ve gotten too cocky to check, and it sucks.)

Depending on how you look at it, that’s either translation or arbitrage. Either way, it obligates the journalist to write in a way that maximizes ease of access — to inform as many people as want to be informed.

In my experience, clarity, conciseness, and informativeness are one of those “pick two” situations. I tend to pick the first and the third. A ramp might have to extend for longer than a set of stairs in order to reach the same height, but not everyone can manage the stairs and everyone can manage the ramp.

Clarity and ease of access should not be the goal of all writing. It would be laughable to judge poetry that way, for example, and I think that narrative journalism can accomplish things explanatory journalism can’t. But if you’re committed to expository writing — which is, in theory, what most journalism is — ease of access has to be a core commitment.

As a middle-schooler, I was really proud of myself when I completed a written assignment and the Microsoft Works Flesch-Kincaid analysis gave my work a score of 11.7 or whatever. I thought it meant I was sophisticated. It really just meant I was using too many semicolons and relative clauses to be readable.

Of course, that Current Affairs article, and most critiques of my site, are generally a stalking horse for ideological disagreement (with “Vox ideology” defined as “what Ezra, Matt, and Dylan Matthews think”). I personally am much less concerned with whether I’m manipulating my readers into the “right conclusions” in my writing than I am with whether I can persuade my readers when I suspect my conclusions don’t mirror their instincts.

Journalistic outlets in 2016, and this is not just a Vox problem by any means, have a huge incentive to pander to the prejudices of the existing audience. This creates a vicious cycle: the content you publish attracts readers of a certain stripe, who reward content that appeals to them, which draws in more of the same kind of readers. I worry much more about that than I worry about the prejudices of the people doing the work.

This isn’t a problem that we can fix on the producer end. I want people to think a lot harder about what ethical consumerism looks like in an attention economy. Understand that when you spend time consuming content you don’t like, you’re playing yourself. When you don’t like everything a site does, make a point of seeking out and sharing the stuff you like. And never, ever hatelink.

Q. You’re just at the outset of your career, and you’ve got a long, promising future ahead of you. So it only seems fitting that we close by taking a quick look at the past. Right now, college campuses are in turmoil, with students clamoring that they and their emotional traumas aren’t being taken seriously by administrators and staff. Exactly one year ago, you wrote a notable piece on just that subject, drawing on your own experiences at Yale.

Are campus protests over political slogans written in chalk and offensive Halloween costumes likely to be effective in the long run? Have today’s student activists lost sight of the bigger goals of progressive politics by choosing to focus on themselves and their needs? Are they unlike you and your generation? Do you have any advice for them? And given that they, along with the rest of us, are facing four years of President Trump, what should they be focusing on now?

A. I don’t think that this wave of student activism is particularly strategic. But I don’t know that it could be. Some of these students (Nathan Heller’s feature about Oberlin in the New Yorker brought this into focus for me) are rejecting the notion of college as a place to find oneself, which is at least a half-century old, and as a lever of upward mobility, which is even older than that. That’s a really radical critique, and radical critiques don’t tend to lend themselves well to strategy.

It’s going to be really interesting to see how progressive movements react to the Trump administration. But I think that campus activism circa 2015 was maybe not terrible tactical practice for the age of Trump, because the feelings of unsafeness that were at the core of so many activist uprisings are a lot more relevant (and arguably more valid) now.

The fact of life under President Trump is that some fears are entirely rational, both in terms of threats from the state and from nonstate actors. You don’t have to believe every reported hate crime on social media to be aware that there are a lot of verified cases of harassment being undertaken in the name of our president-elect, and when Guatemalan-born children ask to start taking their passports to school it seems wrong to blame their parents for making them scared.

But not everyone has equal reason to fear: I think that a lot of progressives, not only on college campuses, are focusing on their own victimhood to the exclusion of protecting others. (I’m a woman, a Jew, and a journalist, and I am really annoyed with the number of people using their membership in one of those categories as evidence that they personally will be targeted by the federal government or 4chan. I am not the person I’m worried about right now.)

I feel pretty strongly that if you are less threatened, you are obligated to support those more threatened. When someone is afraid because she’s getting harassed on the street for being Muslim, or because her parents might get deported, you don’t get to pretend she’s just upset because her preferred candidate lost. But if you’re primarily worried for what President Trump will do to you, you should probably work through the relative likelihood that you’ll be endangered compared to others.

Cross: Drew Whitney Morgan, The Verdict is Comedy

November 2, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross former Miami public defender turned stand-up comic, Drew Whitney Morgan, described as “Mark Twain on acid,” who’s currently touring the country with Trae Crowder and Corey Ryan Forrester on the sold-out WellRED Comedy Tour, hjs co-authors of The Liberal Redneck Manifesto:Draggin’ Dixie Outta the Dark.

Q. You’re a Tennessee redneck and, at least at first, you didn’t stray far from your roots: you were a high school jock who went to local Maryville College, where you were an award-winning football player and an excellent student. You majored in government, and it’s not a huge leap from there to law school, but what led you to pull the trigger? Was it always the plan? Were you bored? Restless? Tired of all the adulation from cheerleaders? Were you going to save the world?

A. I guess first of all I’ll say that I’ve always identified as more of a hillbilly. Growing up, “redneck” was an insult. But meeting other southerners, I learned it was often vice versa, and that all those words – redneck, hillbilly, hick, white trash – were insults invented by people who weren’t like me to put us down. At first I ran away from that entirely. I guess that sort of answers the second part of your question.

Where I’m from doesn’t have a lot of jobs or things to do. I went to law school because I wanted to see more of the world and get a “good job.” But I also wanted out. I had good grades and got a good LSAT score and thought, like so many young people, law school would be a good way launch myself upwards away from being “redneck” while still figuring out what I wanted. That was very naive.

Clearly, I’ve circled back to being redneck. To hell with that being an insult.

Q. You went to Boston College Law School, class of ‘10. This was at the height of the Great Recession, when professional opportunities for new lawyers were nowhere to be found, but the message hadn’t yet filtered down to law students, who would find themselves jobless after graduation, heavily in debt and without the future promised by the glossy brochures. Were you aware of the risk you were taking by attending law school? Boston College does significantly better than average in terms of bar passage rates and employment outcomes for its grads, so were you somewhat insulated from what your peers at other schools were going through? More importantly, did you like it? Was law school living up to your expectations? Did you ever freak out and say to yourself, “what was I thinking?”

A. I hated law school. But I’m so stubborn I didn’t realize it until I left, which is the most lawyer thing about me I supposed- I can’t ever be wrong.

I’m not sure what my exact expectations were, but they were probably unfair. Because of that, no, law school did not live up to them.  I’m sure I was insulated some from those issues but I had no frame of reference. BC is a good school, but my grades we mediocre because for the first time I didn’t give a shit about most classes.

I absolutely freaked out over the job issue. I also remember being angry at realizing that I’d been lied to. Not just by the school, but it felt like by everyone. Education is put on a pedestal in this country as if it is a magical tool that automatically qualifies you for the American Dream. ESPECIALLY a law degree.

I, again naively, thought a law degree was versatile and I could do anything with it. My parents also believed this. Turns out, law school is basically a trade school for type A’s. When those loans go from an abstract idea to an actual bill, and you realize you can’t get any other jobs, it’s a hell of a thing.

The world had lied, my parents were fallible and I was ignorant. This all hit at once and it was scary.  But I’m glad I learned all those lessons relatively young.

Q. What made you choose criminal law? It couldn’t be economic, since criminal lawyers, especially public defenders, aren’t likely to get rich. So why? Were you dead set on being a defense attorney, or did it just happen? Firebrand liberal that you are, was there a political motivation? Was there a burning desire within to perform, before a jury if no one else?

A. It was always gonna be trial work, for sure.

My father is a preacher and my mother is a teacher, so service has always been important to me and my family. I came to law school looking for ways to serve. I started out volunteering for immigration law projects. It was too bleak for me, honestly.

I kept looking, and yes, politics had something to do with it. I wanted to try trial law and just couldn’t see myself ever prosecuting a man. To stand up with righteous indignation and wielding the power of the State was so fucking strange to me. I still can’t wrap my head around the folks who do it. Don’t get me wrong, we need good prosecutors and I’ve met quite a few (some shitty ones too, of course). But I couldn’t see myself doing it.

With public defense, I felt like I could wrap myself up in people’s stories, rather than some “cause” or political ideal. I liked having clients. Then when I got into it and realized the awful shape our justice system is in, I wanted to pursue it even more.

Q. After graduation, you moved to Miami, where you signed on with the county public defender’s office. You started off doing juvenile representation, but moved quickly to adult court, where carried 100 cases at any given time. Did anything in your education prepare you for the harsh reality of representing society’s poorest and most vulnerable? Juggling so many cases at a time? Were you mentored, given adequate support, or thrown in the deep end and left to swim? Were you happy with what you were doing? Were you desperate to get out? Both?

A. I don’t know about my legal education preparing for the emotional side of PD work. I don’t think it did. I’m not sure anything could have.

As for the case load, the Miami PD office is a special place and they prepared me as best they could, sending me and other new hires through a rigorous training before we got a single client. I had wonderful mentors and we were supported as adequately as possible.

However, the truth about public defense is that it comes down to you and your client(s). I liked a lot about that, but in terms of support, it’s tough. There is no money. There are no resources. There is no support system. You are the resource — you and a small, dedicated, over-worked and shared-among-many team. That being the case, being thrown in the deep end was necessary. There is no shallow end.

At some point I became both happy and desperate to leave. My time as a public defender is what I’m most proud of in my professional life. It is a hard and noble job. Public defenders are my heroes. But, it was killing me. There are no happy endings in a criminal case. Even when the outcome is “correct,” no one feels happy.

Q. Obligatory first jury trial question. What kind of case, and how did it go? In retrospect, were you the lawyer you thought you were? What would you have done differently? You tried over 40 cases during a sixteen-month stint at the public defenders, including 24 as lead counsel, which is a hell of a lot for a greenhorn. Can you even remember the individual cases? Were you burning out under the workload, the stress? Is it possible for PDs to provide adequate, even zealous representation to their clients, given the volume of cases, the pressure, the many demands on their finite time and energy? Is it all too much?

A. I can only remember the details of about five cases. One, of course, was my first, which we won on case law. I knew we would win and I was pumped about it. My kid had stood up to a bully who had kicked his friend. They fought, unfortunately at a separate location, later at school. He pled self-defense and the state failed to offer any direct opposing testimony. All they had was a teacher who saw the end of the scuffle. The alleged victim wouldn’t testify because he had his own case springing from the initial bullying. The state thought they didn’t need him. They were wrong.

The judge agreed that case law made a guilty verdict literally impossible. Motion to dismiss granted.

I was folding under the load though. Yes, I was burning out, but I didn’t know it.

I hesitate to answer the question about zealous representation. The truth is no, it is generally not possible. I know a lot of PDs who do the impossible daily, though. But, and I think they will tell you this, they also fail sometimes from sheer exhaustion or simply running out of time on any given day. I don’t wanna say PDs don’t zealously advocate – they do. But it’s not sustainable. There’s a reason most of us quit.

Q. At the very end of 2011, you moved back to public defense – Knox County, Tennessee this time. You may not have had some of the luxuries of Miami-Dade, like hallway depositions, but they promoted you up to felony within three months and you were handling a “mere” 60-80 cases at a time. Compared to some of your fellow grads, you were doing great. But after another two years in the trenches, you gave it up for life as a stand-up comic? Where did the ambition come from? What did your wife, friends, coworkers think about this? Were you burned out on the law, criminal defense, or were you desperate to pursue your craft? At that point, did anything seem like a good alternative to more public defense, or had you found your true calling? Did you think you were funny?

A. I’ve loved stand-up comedy since I was 5 years old. Jokes felt like literal magic to me as a kid. I mean my sweet and Baptist mother laughing at Eddie Murphy saying AWFUL things? That was something special.

My wife knew this and pushed me to pursue it. I did, at first as a hobby, as a release of tension more than anything else. I recall my friends and coworkers being a little surprised at it. But it also kinda makes sense. I’m a smart ass and I’d always liked performing.

When we moved to NYC, I intended to take a month off and then pursue being a Harlem Defender. During that month, I did and/or watched comedy every night and I realized that 1) I could be good at this, and 2) a comedy career is all I want.

Also, I was realizing I shouldn’t go back. I was coming dangerously close to being a bad lawyer. Instead of making legal arguments, for example, I wanted to tell judges, “You shouldn’t violate my guy on that this VOP for a failed drug test because the drug was marijuana and let’s all grow up and I got high with your bailiff last month and fuck this shit.”

That’s bad advocacy.

Q. In 2014, you and your wife, an actress, moved to New York to  pursue your careers full-time. You were doing document review during the day to pay the bills and stand-up at night. “Liberal redneck” that you are, how did you like the bohemian life? How did you get your start? Did all the court appearances leave you cool facing an audience, or is it a bad comparison? Was an audience easier to face than a jury? What if they didn’t laugh? What if they returned a one-word verdict?

A. I think it is a fair comparison in terms of nerves, but a key difference, and what probably has a lot to do with me leaving criminal law, is that if no one laughs, it hurts your soul. If you lose a big case you should’ve won, it hurts your soul and also it ruins someone’s life.

So being a lawyer prepared me in a specific way for comedy. I was less afraid to “bomb” early on. That’s not to say I was fearless, but after you call a cop a liar in front of a court room, some drunk at a bachelorette party screaming “you suck” just isn’t that scary.

Q. Lawyers are dropping out of the profession at an alarming rate. More than a few snake-oil merchants claim the problem is that lawyers are stressing themselves out too much, not taking care of themselves, and that they shouldn’t sweat the details (like providing competent representation) if it’s upsetting to them. But then there’s you: after you decided to stop doing arguably the most grueling crimlaw job of all, you didn’t go and work at a golf course. Instead, you traded law stress for comedy stress, a “job” that doesn’t even have the benefit of a steady paycheck. And in a notoriously competitive business, you’re making a success of it. Do some people just thrive on adversity? Did your tolerance for adversity as a lawyer pay off as a comedian? Would you recommend it to other lawyers on the fence about quitting? Is “following your dreams” good enough, or do you have to be tough enough to back it up? Are all lawyers really frustrated stand-up comics?

A. I do think I (perhaps unhealthily) crave struggle. I can’t explain it. In terms of advice to other lawyers, I left the advice business a while ago. But I did write a column called “follow your dreams, pussy,” sort of as a joke. So yeah, do whatever you want.

Are all lawyers frustrated stand-up comics ? Ha! An EMPHATIC NO. Very, very few of us are funny. Most trial lawyers reading this are already getting defensive and arguing with me. I get it. You’re a hit at parties. Juries like you. And you’re one of those people who can do anything. You’ve accomplished every single goal you’ve ever set for yourself (other than experiencing deep happiness). But trust me, you’re mostly definitely not funny. At the same time though, if you wanna do anything different with your life, you gotta ignore a lot of assholes telling you what you are or aren’t, so fuck me.

Q. You, Trae Crowder and Corey Ryan Forrester – Tennessee rednecks all – just co-wrote a book, the Liberal Redneck Manifesto, where you spend equal time poking fun at your homeland and celebrating what you love about the South. Your background provides the source of a lot of your comedy, and to be fair: in a time of ludicrous transgender-bathroom legislation, it makes a lot of sense to pick on Dixie. But since you guys are not-so-secretly southern patriots, isn’t it maddening to be treated with condescension by your fellow liberals, those coastal elites who hear “southerner” and assume the worst? Is that in part why you wrote the book? Is it worth it, being a Southern liberal and perpetually misunderstood?

A. What a phenomenal question. Hell yes to all that. One of the most interesting parts of the comedy tour is interacting with fans from the coasts who sometimes overtly but accidentally commit the sins they judge the south so harshly for.

“Well I’m just wondering, with all the cousin fucking and Klan meetings at schools and third world conditions in your homeland, how y’all got out?”

I’m barely exaggerating. A woman told us she lived in the south for a year and “wanted to kill herself” and thought that would be endearing.

So it’s like “How’d we get out? We fuckin’ drove here.”

That’s absolutely the goal of the book, as well as trying to move on from the actual and very real problems of the south. And of course, it is all worth it. Being southern is the best thing about me.

Wouldn’t you rather come back into the redneck mainstream?

*I’m sorry. I for real don’t know what you mean.

Q. You’re well on your way to stardom. You, Trae and Corey are currently on tour in the wake of the successful book release, you’ve appeared at a number of comedy festivals (and been extremely well-received, we might add,) you cohost your own political comedy show on SiriusXM. Not bad. Not bad at all. Miss public defense yet? Are you sure you made the right choice? Where do you want to go from here, prime time sitcom or dancing with the stars? And where can we expect to see you next?

A. Haha. YES. I made the best choice for me. And yeah it’s working out. But I was happy with my choice a year ago, too, doing document review in a windowless office with more than few coworkers who’d given up, leaving there to go to a windowless bar and tell jokes to 3 people who didn’t care, eating shitty pizza and then waking up late and rushing to the train to do it again – I was happy. As I said, I kinda glorify struggle. I hated it at times. But it worked for me. It was the right choice then. So now that things are going well, I still of course feel I made the right call.

From here on – yes I would like to act in and write scripted comedies. But my main goal is for y’all get to see the wellRED tour get our own special. Hope that happens soon. SKEWWW! Thanks.

And what’s so funny? Ladies and gentlemen, Drew Whitney Morgan!

Cross: Alan Gura, The Lawyer Who Changed The Second Amendment

October 26, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Washington, D.C. lawyer, Alan Gura, whose representation before the Supreme Court of the United States in District of Columbia v. Heller and McDonald v. Chicago fundamentally changed the interpretation of the Second Amendment.

Q. You studied government as an undergrad on Cornell’s arts quad. Were you always interested in government, or was that something that caught your attention in college? Did you plan to go on to law afterward? Cornell was something of a long-time hotbed of liberal thought. Was that your perspective going in, during or coming out? Was there an influence in college that framed your interest in the law? Did your coming from Israel have any bearing on your views on American government or law?

A. I’ve always been interested in government and public policy. I don’t recall exactly when it was that I decided to go to law school. There was no epiphany, where the clouds parted to reveal the “aha” moment. At some point, law school seemed like the next logical step.

I got a good sense of Cornell in the summer of 1988, which I spent there after my junior year of high school. I never thought of Cornell as a particularly “political” place. It just seemed like a great school overall, and that it was. To be sure, there was plenty of PC nonsense, but I don’t know if it was better or worse at Cornell than on any other college campus at the time. If anyone graduates from Cornell having experienced nothing more than “activism,” they’ve done something wrong and blinded themselves to a great time.

I came to this country from Israel shortly after first grade. Like most (all?) first-graders, I didn’t have very many views about government or law. Of course, not everyone there, or here, shares my views on anything.

Q. After the chilly hills of Ithaca, you attended Georgetown Law School. What made you decide to go to D.C.? Was there any particular area of law that interested you going in? Was the plan to practice law or to use your education in government? Did you have activist views toward the law, toward the Constitution in law school? Back in the early 90s, the predominant view of the Constitution was that it was a living document, subject to whatever emanations and penumbras one wanted to find to meet societal desires. Was that your view? Did it change?

A. Georgetown is a great school, and I was thrilled to be accepted there. I loved Washington, which of course offers a great deal for anyone interested in public affairs. While I graduated from Cornell, I had spent a year of college at Johns Hopkins, in not-too-far Baltimore, and took advantage of that to intern for then-Senator Pete Wilson. My job was essentially that of legislative correspondent, drafting constituent letters (primarily on environmental issues), giving tours of the capitol to visiting constituents, and generally helping about the office. It was a great introduction to Washington.

When I returned to Washington a few years later, I did not go to law school with any particular employment plan. I had next to no knowledge of the legal industry, but I was interested in the law, and figured that I’d find something useful and interesting to do within the profession. I cared, then as now, about any number of issues from a libertarian perspective, but I didn’t plan on necessarily having a public interest career.

Law school helped me develop a deep appreciation both for the genius of our Constitution, and the genius of some of our judges and justices in subverting it completely. I never bought into living constitutionalism, which is nothing more than left-wing politics by another name. And it did often seem that everything after 300 U.S. 1 is just wrong. The Slaughter-House Cases were a complete farce, and the way my professors and classmates related to Lochner was the world turned upside down. Constitutional text reflects the Framers’ classical liberal values. Fighting those values requires subverting the text.

In my second year, needing to make some money, I came across a flyer in a law school hallway advertising a position at something called “the Institute for Justice.” I was already fairly libertarian in my views, and discovering IJ was a revelation. IJ was this magical oasis compared to the leftist law school environment. It was an honor, and a major inspiration, to work with the attorneys there. They opened my eyes to what was possible.

One of IJ’s ultimate goals is to get Slaughter-House overruled, an issue on which I learned much from Chip Mellor. I could not have imagined that within sixteen years, I’d win a Supreme Court case where the deciding vote, even if it was the only one yet – called for the restoration of the Privileges or Immunities Clause. I also attended IJ’s summer student conference during one of my law school years, a highlight of which was a Ninth Amendment lecture by Prof. Randy Barnett. I consider myself very lucky that I’ve had the chance to continue learning from and working with Prof. Barnett.

Q. After law school, you clerked for North Carolina District Judge Terrence Boyle, who had been legislative assistant to North Carolina Senator Jesse Helms, and he was a pretty conservative judge. Did you actively choose to clerk for Judge Boyle because of his positions? What did you take away from your time in North Carolina, aside from an appreciation of barbecue? Did your experience with Judge Boyle influence your views? Did this confirm or change your view of constitutional interpretation? Did you have any desire after this clerkship to get into court and try cases?

A. I chose to clerk for Judge Boyle because he’s a great judge, because our values are essentially consistent, and because we connected well enough in the interviews to be honored with the offer. I considered various factors in researching clerkships, and I wouldn’t have applied without at least reading a few of the judges’ opinions and getting as much sense of their world view and personality as that might reveal.

That Judge Boyle had once worked for Jesse Helms suggested that Judge Boyle fit comfortably somewhere on the right side of the spectrum, which was fine by me—that’s what I was seeking—but that’s about all that particular data point said. Our political system doesn’t allow for very precise sorting—there’s the more-or-less right wing faction, and an increasingly leftist one. Having worked on the Hill, I had learned not to directly equate people with their bosses, for better or worse.

Are there people reading this who think Helms was the devil incarnate and anyone who’d work for anyone who’d work for him is morally defective? Sure. But that’s not how the world works. If you think his policies hurt people, I’d say the same thing about his left-wing equivalents, e.g. Barbara Boxer and Ted Kennedy, but I harbor no particular ill will against them or their staffers or their staffers’ staffers. Having said that, of course, I do judge people with terminal harshness for associating with those who are beyond the pale—Donald Trump and David Duke come to mind. We all draw our lines somewhere.

And whatever his shortcomings, Jesse Helms did at least one great thing for this country: he helped place Terrence Boyle on the federal bench. I’ve never been prouder to have worked for anyone. Judge Boyle is sharp, personable, well-read, and he cares deeply about the law and about the people impacted by his decisions. He is incredibly patient—much more so than I would be in his position. And he’s absolutely committed to the Constitution and to the principles of the Declaration of Independence. He’s really the gold standard for a federal district judge, and I’m not saying that because I worked for him (some clerks have written bitterly of their bosses), or because I agree with every last decision he’s issued since taking the bench in 1984 (that would be impossible). Judge Boyle possesses all the qualities that anyone would want in a judge, and he’s a fine human being.

Apart from lucking out with a great boss, the position of law clerk gave me an invaluable perspective on the practice of law. I experienced, first hand, a wide variety of lawyering within a very diverse docket, and had the opportunity to see what worked and what didn’t. I encourage clerking for all aspiring attorneys. By the time I started the clerkship I had already decided that I wanted to litigate, and the clerkship didn’t do anything to change my mind.

I hadn’t set foot in North Carolina until I first drove down to interview with Judge Boyle. As it was only a one year clerkship, I figured that I could clerk on Mars if that’s where the job took me. Fortunately, the barbecue is better in North Carolina than on Mars. Although the chambers were near the coast in Elizabeth City, we almost immediately traveled to Charlotte to help out in the Western District, and once during the summer Judge Boyle held court in New Bern. So I saw a great deal of the state, and very much liked it. My family loves vacationing on the Outer Banks, which I discovered through the clerkship.

Q. From NC, you went to California (a return of the prodigal son perhaps?), where you served as a deputy Attorney General. Did you get to try cases? Were you the trial lawyer you hoped to be? Did you have trial lawyer in your bones? After that, you went to Sidley Austin for a bit, then became counsel to the Senate Judiciary subcommittee on Criminal Justice Oversight. How did that happen? Were you interested in criminal law before this? Did this relate to your experience as a deputy AG? What sort of issues were you dealing with? Did you find yourself on a “side” in the mix? Were you sympathetic toward “truth and justice” or the defense?

A. I’d spent my law school summers at the California Attorney General’s Office in Los Angeles, in the Civil Division’s “Torts and Condemnation” Section. A different unit handled most prisoner claims, and another unit handled most employment claims, but this was the section that primarily defended the state and its employees in civil claims for money damages—everything from allegedly dangerous conditions of state parks, to police shootings, to airplane crashes.

The state’s tort control board resolved many of the simpler or low-dollar claims, so if the Torts and Condemnation section got the case it was usually at least somewhat interesting and often significant. The L.A. office’s geographic reach comprised the bottom half of California, excluding San Diego and Imperial counties. The attorneys I worked for were wonderful mentors, and they liked my work enough that it was suggested I’d apply for a job as a Deputy following my clerkship.

The experience could not have been much better. Every once in a while, a complaint would show up in my box. Someone had sued the state, I was to defend it, and let the bosses know how it turned out. That’s it. And it would be my case on appeal as well. Of course, having had no prior litigating experience, I knew next to nothing. I was conversant with the federal rules from my clerkship, but most of our work was in the state court system—and there’s a big difference between reviewing pleadings, and figuring out which ones to file and how to prepare them. But I was honored to work alongside some of the greatest attorneys I would ever meet, and I learned quickly.

There were about thirty of us in the L.A. office, and while not everyone was close to everyone, it was a tight-enough office, and overall there was a fairly good camaraderie. At the time, our office supervisor would have to review what I put on letterhead, but oddly enough, not what I filed in court. Of course, we all sought input from each other on significant pleadings, if (as was typical) we had sole responsibility for the case. The client agencies decided whether to settle and for how much, but otherwise, we each had total responsibility, and autonomy, as to how to work our cases.

Within a few weeks of starting, I was in court. Cases that someone didn’t want or couldn’t handle anymore for some reason were “burgers,” and our supervising deputy had a spatula on his wall signifying his authority to “flip burgers” to the other deputies as justice required. On day one, among the first “burgers” flipped my way was a bizarre case brought by two convicted car thieves who had been stopped by the highway patrol before they could drive their stolen SUVs across the border. The thieves claimed that cars were chock full of their goodies that they were planning to take home to Central America, and that the highway patrol had a duty to inventory and secure their now-lost property. Of course the cops, and the cars’ owners, knew nothing about this, and the thieves’ receipts were on the vague side.

The deputy who first had the case had only time enough to file an answer, but of course this wasn’t going to fester long, notwithstanding the plaintiffs’ lawyer’s plan to depose not just the police officers, but his clients’ victims about what they had allegedly done with the car thieves’ alleged possessions. So I gathered it was my task to write a motion for judgment on the pleadings—lack of duty to the thieves in securing the cars they’d stolen, and a raft of immunities under the tort claims act—and I drove to Indio to argue it.

I was stunned when the judge granted my motion, but with leave to amend. I left the court somewhat dejected, not realizing yet that in California some judges will always grant leave to amend at least once, no matter what, and that I’d won as much as could be won that day. We have to waste time doing this again? What amendment could possibly state a claim on these facts? I stopped at a bagel place for lunch before leaving the desert, and commiserated with the shop’s proprietor. He was somehow related to Carl Karcher, the burger magnate’s brother as best as I can recall, and I got a coupon for a free burger at any Carl’s Jr. So the case was a true “burger.”

The job’s biggest downside was that it paid next to nothing. People who’d been there for a while made okay money, but the starting salary for newbies had me living back home with my folks. Still, that position was invaluable—almost everything I ever learned about the practice of law, I learned from my colleagues and own my own at the California Attorney General’s Office. There’s something to be said for my almost two decades of experience since leaving that job, but that’s really where I became a lawyer. And yes, we went to trial.

I had two trials during my stint at the AG’s office. I second-chaired a suicide-by-cop case involving five highway patrol officers in the federal court in Riverside. A troubled teenager led the cops on an exceedingly wild chase that had ended with five of them opening fire on him. We earned a defense verdict after several hard weeks of trial. And I first-chaired an aviation case, brought by a county park concessionaire who sued when an airplane piloted by a state employee in the course and scope of employment crashed into his concession. The pilot’s insurance company had become insolvent, and the plaintiff wanted the state there as a deep pocket beyond what the guarantee association might supply. A few days into the trial, the case settled with the state paying nothing. That case, too, was quite complex—though the plane crash, tragic as it was for the pilot and his family, was the best thing to happen to the plaintiff’s business.

I’ve had some trials in my practice since leaving the state, but it’s largely out of my system. I prefer arguing about the law, not about what happened. For years now, I’ve tended to take cases that are unlikely to reach trial, as the adjudicative facts are undisputed. But it’s nice to have learned that I can successfully try cases.

At the Attorney General’s Office, I never faced a conflict between “truth and justice” and the defense. In cases of liability, I could recommend a settlement and the client agencies would settle. Everyone was a grown-up and we were busy— we weren’t going to waste time and take needless risk in cases where someone screwed up. But if the case had no settlement value, and especially if the plaintiffs conjured the bovine sciences, no soup for them.

It helped that the clients tended to be highly professional. Some police agencies are absolutely corrupt, and our nation plainly faces a problem with excessive police militarization. In my practice, I’ve since represented people in claims against incompetent and violent cops. But California’s state law enforcement agencies, at least when I was there, were clean. I was never called upon to defend bad officers. And in at least one memorable instance, I defended a police officer against a claims that was out-and-out fraudulent—I successfully obtained sanctions in that case when the evidence was uncovered.

As much as I liked my job in California, after a while I felt that I’d learned what I could, and I wanted to return to Washington and do something else with my career. A college friend at Sidley suggested I apply for an associate position they had, so I lateraled there as a fourth-year associate. I’m not going to slag the firm or some of the people there, but, let’s just say I disliked it for many of the typical reasons that people dislike Biglaw. After some amazing experiences at IJ, with Judge Boyle, and at the California AG’s, Biglaw was a big letdown. I’ve got my stories, but it wouldn’t serve any useful purpose to unload them here. And they aren’t that unusual.

One day I ran into an acquaintance on the Hill, who said they were looking for a counsel on the Committee, so I jumped at it. I’d still had fond memories of my earlier time on the Hill ten years earlier, and figured it would be a nice place to park for a while until I figured out the next step. While to some extent I focused on criminal justice issues, my colleagues and I were also the committee staff for the subcommittee’s chairman, Senator Thurmond. The greatest hurdle to being hired there was my complete lack of connection to South Carolina. Perhaps Southern California, or North Carolina, were close enough?

Q. After serving as counsel to the Senate subcommittee, you opened your own shop with Laura Possessky in Washington, D.C. Why not go back to Biglaw? What made you decide to take a chance and start a firm was the right route for you? Did you think at the time that you would end up before the United States Supreme Court? What was your focus when you first started the firm? How did it turn out? Was small firm life what you expected? Did it take off from the start, or did you sweat it out like the rest of us?

A. Actually, I started out, for a short time, as a sole practitioner. I wanted to practice law again, and to take and run my own interesting cases. I wasn’t opposed to partnering with others, but I was very much opposed to Biglaw, which I disliked intensely. If I thought my experiences were unique, perhaps I’d have tried another large firm, but it didn’t seem worth pursuing. I didn’t have a book of business, just some savings, some credit cards, whatever I’d learned over the years about the practice of law and a few connections here and there. I had no particular expectation of small firm life, other than that I wouldn’t have to put up with Biglaw life.

I figured I could always get a job somewhere if it didn’t work out. But the concept of self-employment was irresistible. It didn’t take off from the start, but I always somehow had something useful to do, and the business grew. I didn’t expect or directly plan to be arguing in the Supreme Court, but it was always a possibility considering the nature of some of my cases. I never gave the matter much thought, but neither did it seem fantastical or off-limits. The Supreme Court is a court. Some cases go there.

After a short time being on my own, I convinced a friend of mine, Chris Day, to leave his associate-ship at a small firm and form Gura & Day with me. Two years later, he brought in a third partner, a friend of his who was at the time a Virginia state senator, Ken Cuccinelli, and I brought in Laura Possessky, a Georgetown classmate and friend who had referred me some fantastic matters, and was ready to leave her firm.

That arrangement didn’t last long, with Chris and Ken going their way, and Laura and I going ours, in late 2005. I’d since seen a few associates come and go, and Laura chose to go in-house with the Corporation for Public Broadcasting this summer, so for now I’m back on my own—at least formally. In truth, I’ve always joined with other firms, and staffed up or down, depending on the requirements of a given case. Many matters I can handle myself; on others, I partner up. I have one matter now on which I’m one of five firms. In 2016, there’s just no reason why everyone must be under the same roof. I’d be happy to partner with others again, but it must absolutely be the right fit. If it happens, great, but it’s not mandatory.

Q. Your first case before the United States Supreme Court was, to say the least, a doozey. Heller v. District of Columbia. At the time you took on Dick Heller’s case, it was quite the radical proposition that the Second Amendment’s right to keep and bear arms was a fundamental individual right. What made you think you could change the long-standing interpretation of the Second Amendment? Was this a cause for you or a case? While some scholars were taking the position that it was an individual right, it was pretty much black letter law that it was a militia right. What made you think otherwise? Did you think you had a chance of achieving such a fundamental change in the law? What difference did support, such as CATO Institute, make? What about the institutional forces against you?

A. I wouldn’t agree that our position in Heller was all that radical. In the legal academy, the individual rights model had become the “standard model” of the Second Amendment, with the collective rights theorists regrouping under the “sophisticated” collective rights banner. That was one of the driving forces behind taking the case—that the academic debate was real, and the Fifth Circuit had just handed down Emerson, adopting the individual rights view and creating a split. It was a question of when and how, not if, the Supreme Court would get the question. The “collective rights” theory was black letter law only insofar as lots of courts had adopted it, but until the Ninth Circuit’s reaction to Emerson, in Silveira, no one had actually explained it. The collectivist theory was asserted, never proven or even elucidated to any degree, and legally it was the proverbial unclothed emperor.

It was, however, a very radical proposition in terms of the legal profession to be making a Second Amendment claim in 2003. It was tin-foil material for anyone who hadn’t studied it, though the criminal defense bar had discovered the issue, particularly after Emerson, and started raising Second Amendment claims. My colleagues and I could bring the Heller case because nobody else wanted it. If the Second Amendment was a big sexy issue in 2003, others would have pursued it.

The case was initiated by Clark Neily and Steve Simpson at IJ. It was their idea, but an idea outside of IJ’s core mission. Clark was allowed to work on the matter off-the-IJ-clock, and Bob Levy helped organize it. They needed a lead counsel, and Bob kindly thought of me. Of course I said yes, for a number of reasons. First, while I wasn’t a gun rights activist by any stretch, it’s an issue in which I’ve long strongly believed. Second, it seemed like a perfectly plausible case, in that we were right, the case would be handled IJ-style, and the courts appeared to be as open as they’d ever be to the argument. And third, we deeply believed that the issue would be determined one way or the other, such that the real risk was in doing nothing and allowing some random garbage case to frame the issue. So while we were by no means expecting a Supreme Court victory, neither did we expect defeat. We had a strong case in which we believed, and we were going to take it as far as it would go.

We didn’t get institutional support as such from Cato, as Cato doesn’t sponsor litigation. Bob put his own money into the case, and all of us had put in our time. We could not have predicted the institutional opposition, and all the twists and turns that the case would take, but nothing worthwhile is very easy.

Q. By the time you argued Heller, the “elite” Supreme Court bar had already taken shape. Did you ponder having one of the “known” lawyer take on the case? What did you do to prepare for oral argument? Did anyone question you as to whether you were the right lawyer to make the attack? It must have taken incredibly firm resolve to take the case on. Did you ever ask yourself, “what have I gotten myself into?” Did you ever consider giving up the fight?

A. It never occurred to me to give away a case I’d spent years developing just because others market themselves as “elite.” Aren’t we all special. It definitely occurred to various “elite” people in town, and their friends, that they should help themselves to my business. Bob kindly, and wisely, ran interference for me on that. It was always understood that I was taking the case to take it all the way. I prepared heavily, including five moots—the fourth of these was by far the toughest, but the last one went well enough, as did the argument.

To be sure, not every lawyer is ready to argue in the Supreme Court. But I had argued the case successfully at the D.C. Circuit, which wasn’t nothing. I wasn’t coming from a transactional practice, or from a career in some field involving largely the litigation of facts under established law and procedure. And the Supreme Court has been around for hundreds of years before this bizarre new notion that only half a dozen high priests might deign to argue there.

The Supreme Court has its own special rules and idiosyncracies, but that’s true of all courts, and we’re not pretending that only a handful of special people can litigate a pharmaceutical patent in the District of New Jersey or a capital case in Orleans Parish, to name two difficult, high-stakes matters of the kind I’d never attempt. The idea that judges should only hear from lawyers with whom they socialize is better suited to Podunk County Speedtrap Court. And in a generalist court, like the Supreme Court, there’s something to be said for the bar’s breadth of experience and perspective. Many excellent Supreme Court litigators would have lost McDonald for the simple reason that they’d never have included the Privileges or Immunities Claim that won Justice Thomas’s decisive vote. Had anything happened to me, Clark or Bob would have done at least as good a job arguing Heller. So could many of my former colleagues at the California Attorney General’s Office.

Of course, I market myself as someone who’s argued and won two landmark Supreme Court cases, but it wouldn’t occur to me to snipe someone else’s business just because they’re about to present their first argument. More than once, upon reading stories of attorneys being pressured to yield their first Supreme Court argument, I’ve reached out and encouraged them to hang on.

It never occurred to me to drop the Heller case. We were never in any posture where that might have made sense.

Q. To add insult to injury, you got screwed when it came time for the award of fees for your representation in Heller. District Court Judge Emmet Sullivan cut your fee request by about two-thirds, after another three years of fighting following the Supreme Court’s ruling in your favor. What happened there? From the outside, the $1.1 million fee award might have seemed pretty good, but given the many years you put into the case, it was grossly inadequate. Was this an example of “no good deed goes unpunished”? Was there some sort of animosity because of the position you took? What does this say about taking a long-shot chance and winning? Is the message to leave well enough alone?

A. It’s a matter of public record that we settled on appeal for a substantially larger figure than awarded by the district court, and still, it was not reflective of the market value of our work product as we had presented. I have some opinions on the matter that I would rather keep to myself at this time. People can read the decision and consider its assertions, educate themselves on the subject of attorney fee awards, and draw their own conclusions. You are not the only person who has asked me such questions.

Q. When you received the decision in Heller, it was a huge victory, a paradigm shift from the understanding of the Second Amendment for generations. But then, there was what I call Justice Scalia’s “errant paragraph”:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

What did you think when you read this? After all the effort exerted at changing the law, this gave an awful lot back without much by way of rationale. Was he smoothing ruffled feathers? Can this be justified? Were you satisfied with the decision, or did you see this as a switch in stumbling blocks, but still stumbling blocks to achieving a meaningful individual right to keep and bear arms? Despite this, Circuits have not given Heller a lot of respect, largely employing Justice Breyer’s “interest balancing inquiry,” unlike other individual rights. Why have court treated Second Amendment rights so much worse than other fundamental constitutional rights? Why has the Supreme Court allowed them to do so?

A. The “errant paragraph,” as you describe it, has not yet posed the greatest problems. At least in theory, there’s logic in the notion that every right has a contour, and if the Framers were comfortable with certain practices, they must not have believed them to be inconsistent with the right they were securing. Then again, the Alien and Sedition Acts were enacted within seven years of the First Amendment’s ratification, and at least some Amendments were enacted with the express goal of overturning existing law. And there are serious questions as to whether history supports the examples of longstanding prohibitions provided in the “errant paragraph.”

Most courts have held that “presumptively lawful” means that the presumption can be overcome in as-applied challenges. I’ve won two such cases so far, against application of the so-called “felon in possession” ban on behalf of plainly harmless individuals. Those victories were consolidated on appeal and affirmed by the en banc Third Circuit, Binderup v. Attorney General, and that could very well be the next Second Amendment case the Supreme Court considers.

On the negative side, the gun prohibitionists like to divorce the word “longstanding” from the rest of the paragraph, or read “longstanding” to mean as long ago as last week, such that virtually all laws are presumptively constitutional—a neat trick that undoes Heller’s holding. Indeed, they are trying to read this language to hold that there is no right to acquire guns at all, because any commercial restriction is presumptively (meaning to them, conclusively) lawful.

That’s a nonsense reading of a constitutional right, and not at all consistent with Heller, but it’s about what should be expected considering the Court has decided to let this right wither on the proverbial vine. The bigger problem, as you’ve identified, is that Justice Breyer’s dissent might as well be the majority opinion for many lower court judges. Prof. Allen Rostrom, who teaches at the University of Missouri Kansas City and was formerly of the Brady Center, wrote an article explaining this phenomenon four years ago, so it’s not exactly a secret.

Why is this happening? Many of the lower courts do not treat Heller as a fully valid precedent. It’s hard to imagine any Second Amendment cases prevailing in some venues. And it does appear that someone on the Supreme Court has either changed his mind, or wasn’t serious at the outset. The issue is bigger than the Second Amendment. Defiance on this level calls into question the Supreme Court’s institutional role at the top of the precedential hierarchy. UCLA’s Richard Re just authored an excellent article describing the phenomenon, “Narrowing Supreme Court Precedent From Below.” This practice invites chaos and lawlessness. That it can be credibly described, and celebrated by some, should concern the Court.

Q. Your Supreme Court encore to Heller was McDonald v. Chicago, bringing the Heller Second Amendment rights to the states. At this point, would it be fair to say you were among those “elite” lawyers of the Supreme Court bar? Did you see yourself as getting pigeonholed as the Second Amendment lawyer? Was that where you wanted to be? Now that you’ve proven beyond question your abilities as a lawyer, and a Supreme Court advocate, where do you want to go next? You’re now running your own shop, limited to appellate and strategic litigation. What does that mean? What’s the next “strategic” constitutional right you plan to take on? How do you see the future for individual rights in a county that seems more intent on finding safe spaces than free spaces?

A. Well, handsome, if you want to call me “elite” I won’t stop you. It’s better than some of the other names that I get called. “Elite” is not a term I’d have coined, because I don’t believe that the universe of people who can perform at this level is necessarily all that small, or as small as some law firm marketing departments pretend. If “elite” is the word for lawyers who are proven effective at complex, high-stakes litigation, including at the Supreme Court, I won’t object to it, though I’m not quite comfortable yet with self-describing that way. Marketing has never been a particular talent of mine.

I wasn’t well-known prior to Heller. Perhaps if I’d had a “boring” Supreme Court argument or two beforehand, things would have been different, but getting (in)famous all-at-once on a hot-button topic has had a pigeonholing effect. I’ve always been aware of that, and I continue to address it. Of course, Heller opened an exciting new field that I was eager to take advantage of, and which I was well-situated to pursue. It would have been dumb to stop working on Second Amendment cases. And I wanted to build upon my work, and leverage it into additional victories. I believe in the issue, else I wouldn’t take these cases, and I’m very happy to make a real, positive difference in the lives of my clients and others who benefit from this work.

But the Second Amendment is hardly my only interest, and it never appeared that a niche Second Amendment practice could be viable long term. It definitely doesn’t look that way now! I’ve never aimed to build such a practice. To be sure, I haven’t been successful in this area because guns are a defining or even large feature of my personal life—they’re not. Rather, I’d like to think I’m making the most of what could be made in this contentious area because I know something about complex federal litigation. McDonald should have proved as much, as the issue in that case concerned the Second Amendment only tangentially.

Heller and McDonald are examples of strategic litigation—the practice of designing and litigating a case for the purpose of creating or advancing precedent, usually by getting an unconstitutional law struck down. The substantive claim can involve any side of any topic, but there are some common considerations, doctrines, and best practices involved. I’m happy to be teaching “Strategic Litigation for Social Change” for the third year in a row at Georgetown, where I task students with identifying some unconstitutional law they’d like to get struck down, and then designing a case showing how they’d go about it.

Strategic cases start out in district court, but they have an appellate character from the outset. There’s usually little or no discovery, as the adjudicative facts are not at issue, and they go up sooner rather than later on cross-dispositive motions. I also handle appellate matters generally. For example, in recent years, I’ve filed two notable Supreme Court amicus briefs supporting Congress’s role in the conduct of foreign relations. And I’m happy to handle the appeals that some lawyers would rather have someone else defend or pursue.

I’m a generalist on appellate matters, but with respect to constitutional litigation I continue to favor free speech cases. One of my all-time favorite clients is Frederick, Maryland’s Flying Dog Brewery, which I successfully represented in challenging Michigan’s beer label censorship regulations. Michigan’s liquor commissioners banned Flying Dog’s “Raging Bitch” beer for having an allegedly offensive label, and we taught them a few things about the First Amendment that they might have missed in their safe space.

I’m helping fight California’s demands to snoop into the identity of advocacy groups’ donors, a practice long-recognized as a serious violation of First Amendment associational freedom. And I’m challenging the Federal Election Commission’s frankly puzzling practice of applying contribution limits to testamentary bequests. It’s hard to see the appearance of corruption when people choose to leave money behind to their favorite political party upon their death.

As the political culture becomes more statist, and schools indoctrinate young people into hating freedom of speech, it’s our role as lawyers who care about individual freedom to push back, and to do whatever we can to preserve our rights. But there are practical limits to “whatever we can.” The culture eventually selects the judges. We can’t do it ourselves. If, in the end, the people would rather have a safe space than a free space, that’s what they’ll get.

Photo credit Peter Goldberg

Cross: Bryan Garner, The Last Word On Legal Writing

October 19, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Black’s Law Dictionary editor in chief, Justice Antonin Scalia’s co-author and president of LawProse, Bryan Garner (with very careful attention to use of the past plural imperfect).

Q. You’re a Texas guy, despite a brief childhood misadventure in California, and attended the University of Texas at Austin for undergrad and law school. Coming off a senior thesis with such pedestrian interests as “Latin-Saxon Hybrids in Shakespeare and the Bible” and the ever-popular “Shakespeare’s Latinate Neologisms,” it might surprise some that you would end up going to law school. What turned you toward law school?

A. My high-school plan had been to go to law school. But then I succeeded at English literature and Shakespearean linguistics to such a degree that I flirted with getting a Ph.D. in English and pursuing lexicography. I was being prodded by my English professors. Thank goodness I received neither a Rhodes Scholarship nor a Marshall Scholarship: although I was the U.T. nominee for both, I didn’t make it to England on either of those scholarships. (I received lesser scholarships to study for short stints during two summers at Oxford.) So I reverted to my original plan—goaded in part by a fiancée (my first wife) who swore she didn’t want to be married to an English professor. I made the decision to pursue law on December 8, 1980, the day I received a rejection letter from the Rhodes committee (and, coincidentally, the day John Lennon, my teenage hero, was assassinated).

What inspired you about the law? Any particular niche of law you hoped to practice? Why not an academic?

I was inspired by a strange aspect of the law. Not social justice. Not righting wrongs. These were important, no doubt. But I was inspired by the idea that law was the highest calling for the professional rhetorician.

What was the best barbecue in Austin?

The Iron Works (still there). But the best in the world is in Lockhart, not far from Austin. It’s Kreuz’s Barbecue. I learned about it while clerking for an Austin firm.

Q. During law school at UT, you were a law review editor, which seems almost a given. But did you have a particular legal focus? Were there practice areas that caught your fancy? A nice criminal defense lawyer, perhaps? Had your interest in language remained your foremost focus? How did you take reading casebooks, decision after decision? Did you cringe your way through law school? Did you decide to make it your life’s work to make sure no lawyer should have to suffer such awful prose again?

A. My focus was on legal language from the beginning. In a way, I decided to become an English professor anyway. During my first week of law school, I undertook my first book, and I named it: A Dictionary of Modern Legal Usage. I constantly made linguistic notes on every case I had to read. These notecards became the basis for the book. I had 3,500 of these by the time I graduated.

Q. After law school, you clerked for Judge Thomas M. Reavley at the Fifth Circuit, then worked for a Dallas firm. Did you gain any interest in litigating? What sort of work were you doing in Dallas? Did you find the practice of law boring, unappealing? Did you consider other practice areas?  You started teaching at UT in 1988. Was that it, the end of practicing law? Was academia where you wanted to be, or was that by default?

A. The year with Judge Reavley was important and formative. He was a tremendous role model, and I think of him daily as I make decisions. My three years at Carrington Coleman were also important: I tried two cases first chair during my first year, and I argued two appeals. I won all four. That was a great experience, and I became the poster child at the firm for the kind of experience a new associate could get. They put me on the hiring committee, and I had a vote even on bringing in lateral partners. I loved the firm.

But when my Dictionary of Modern Legal Usage appeared in 1987, some relationships collapsed. A senior associate actually suggested that my royalties should be forfeited to the firm as a “firm opportunity.” And some younger partners seemed to think I was getting too big for my britches—even though I studiously avoided discussing my literary endeavors. When U.T. gave me the opportunity to return as a faculty member, with a raise, I accepted. That’s when I discovered how much I love teaching.

Q.  In 1995, you became editor in chief of Black’s Law Dictionary, perhaps the most iconic of all law books. That’s a pretty cool gig. How did that happen?

A. I’m not quite sure. The West people didn’t even know I’d written A Dictionary of Modern Legal Usage or that I’d been editor of The Oxford Law Dictionary, a project that had been abandoned after three years by U.T. and Oxford University Press. I had a noncompetition agreement with Oxford that forbade me to write a law dictionary through 1994, and in 1995 West wrote to me inviting me to become editor of Black’s. I think that letter came at the suggestion of my mentor, Charles Alan Wright of U.T., but he never quite confirmed that for me. I’m pretty sure that he suggested this move to West.

I was a reluctant recruit. I told West that I was going to produce Garner’s Law Dictionary and soon put paid to Black’s. I said I would be embarrassed to associate myself with Black’s unless they’d let me rewrite the book completely. In the end, they agreed to that stipulation.

Given that law lingo has been accumulated over hundreds of years, what was the job like? Was there an agenda, such as updating an archaic tome, or were Black’s traditional definitions solid?

The problem was that the old tome was lexicographically naïve: adjectives were defined as if they were nouns, and nouns as if they were adjectives. Verbs were mangled throughout. I had to sort things out as a lexicographer first, to make sure that the principle of substitutability was met: a definition had to be substitutable in sentences for the word being defined. In the 7th edition, this was a humongous task. Then senses had to be separated and numbered in a logical pattern. In the 8th and 9th editions, this work was continued and perfected, and thousands of new entries were added. By the 10th edition (2014), the dictionary reached full maturity. Curious readers should sit down with a 6th edition and a 10th edition and look over any span of entries: you’ll understand why I prefer to say that I wrote Black’s Law Dictionary, not that I “edited” it. Of course, I had lots of help from staffers and from teams of scholars.

How does one start to change the definitions of legal words and concepts? How much pressure did you feel being in charge of this icon? Did you ever decide not to screw with tradition for fear it would come back to bite you?

From the beginning, my working assumption was that every definition in Black’s was presumptively wrong unless I could confirm its correctness in legal literature. That was a healthy way of approaching the project. I can remember a screwy definition of prevailing plaintiff in the 6th edition—absolutely incomprehensible. I gave it a good, straightforward definition. Later I learned that the 6th edition had been trying to grapple with a circuit split and to reconcile incompatible definitions. Chief Justice Rehnquist quoted my definition in the 7th edition as the primary source for his resolution of the circuit split. So it became law. Justice Ginsburg objected that never before had Black’s Law Dictionary been the primary source for a Supreme Court decision.

Q. You co-authored your first book with Justice Antonin Scalia, Making Your Case: The Art of Persuading Judge, published in 2008. How did it feel having to carry Justice Scalia? What was your role in the book?

A. “Carry” Justice Scalia? That was a 50/50 book. We both wrote the same sections at the same time, not knowing what the other might say. Then I’d meld the two versions into a single essay. He said, early on, that I was his coauthor, not his clerk. I appreciated that. He declared that we were equals—for purposes of the book only. Apart from writing my 50%, my role was constantly goading him to write about things he didn’t want to write about!

Wasn’t this a bit more about Justice Scalia’s preferred methods of persuasion than persuasion in general? In retrospect, are you sure that you’re in a position to give female lawyers fashion advice?

No! This wasn’t just about Justice Scalia’s preferred methods. This was our distillation of what all the great writers on persuasion have said over millennia. It was a lot of work. He took assignments from me. He’d read whatever I asked him to, from Aristotle to Cicero to Quintilian. Our disagreements are to be found in our debates: look in the index under “Scalia-Garner debates.” Otherwise, we were in full agreement (as we normally were about most things—except that I’m more libertarian). As for fashion advice for women lawyers, I feel certain we consulted with Justice Ginsburg before writing that passage.

Q. You did a second book with Justice Scalia, published 2012, called Reading Law: The Interpretation of Legal Texts. Given Justice Scalia’s textualist (not just originalist as the book makes clear) view of statutory interpretation, that was quite a controversial book. Are you also a textualist?

A. Absolutely! A controversial book? It’s among the most widely cited books in appellate opinions today. It’s largely uncontroversial as a matter of statutory interpretation—except among those who want judges to have full discretion to ignore or supplement statutory texts. Everyone is a textualist to one degree or another; everyone looks at the text. Some then depart from it rather quickly. But to the extent you’re trying to derive meaning from a text, the book can be helpful. Textualism gets controversial especially in constitutional cases. One prevailing view is that constitutional interpretation isn’t a matter of construing a text at all. My coauthor and I rejected that view.

There was, to be fair, significant overlap and conflict of various canons of interpretation. Much like platitudes, there’s one for every purpose. Did that concern you? Did Justice Scalia see any, ahem, inherent conflicts in some of his positions? In looking to the original meanings of words used in statutes, was it fair to interpret old language in modern context? And why did he hate legislative history so much? Did you share his cynicism about politicians bloviating? Is there nothing worthwhile to be gleaned from legislative history?

I stand by the book 100%. In fact, I think I’m prouder of Reading Law than any other book I’ve written, apart from Garner’s Modern English Usage. Read what we say in Reading Law about legislative history. And we explicitly denounce (with reasons) the idea that canons are like contradictory platitudes. That was a falsity propagated by Karl Llewellyn in a specious article.

Q. You’re a zealous advocate of plain language in the law, which seems quite odd given your position with Black’s Law Dictionary, the mother lode of archaic legal words. You call plain English “robust and direct—the opposite of gaudy, pretentious language.” Isn’t there a benefit to using boilerplate legalisms to cover, well, the required verbiage that no one really cares about? What makes Latin phrases, the ones we all understand well, pretentious? What’s the benefit to reinventing the wheel? Justice Scalia was noted for his “robust and direct” writing, but many argued it was too harsh. Was that what you meant, or did Justice Scalia take it too far?

A. I’m a plain-language advocate, and yet I’ve added thousands of Latinisms to Black’s Law Dictionary. The point of lexicography is that readers who encounter an abstruse term ought to be able to find out what it means. I had all the Latin maxims in Black’s retranslated by Roman-law and medieval scholars. That was an important step because there were hundreds of errors and mistranslations in earlier editions. What makes Latin pretentious? You’d rather say ceteris paribus than other things being equal? You’d rather say inter alia than among other things? I have no problem with i.e. and e.g., but many people confuse the two. I don’t write for those people.

As for Justice Scalia, he was hard-hitting—even toward me. But I don’t criticize my beloved coauthor. We loved each other, and this has been a hard year for me, with his untimely death.

Q. As lawyers, we’re expected to be competent wordsmiths, but experience suggests we’re not particularly good at original writing. We’re unclear. We’re verbose. We’re horribly redundant. Do lawyers write better when they stop trying too hard to sound lawyerly? Of all our writing sins, what do we tend to do worst? And why do we do it? Then again, are we any more clear and interesting using “plain English” that legalese? Is unclear writing, whether in plain language or lawyer jargon, still unclear?

A. Look, writing well is hard—as hard as playing scratch golf or playing a musical instrument really well. So why should it be surprising that lawyers write at the level of 17-handicappers or 10th-chair high-school clarinetists? Those clarinetists have six years of practice and playing under their belts, yet they’re not very good. I’m trying to help lawyers who want the equivalent of a PGA Tour card or an acceptance at Juilliard. It’s not for everyone. It’s only for the truly ambitious—and those who have enough humility to recognize how much room for improvement they have.

Every good writer grapples with the feeling that the material is simply intractable—that there is no clear way of presenting the material. The good writer overcomes this frustration.

Q. Chief Justice Earl Warren’s opinion in Brown v. Board of Ed was ten pages. Opinions today can easily run over a hundred pages in cases of relative insignificance? What the hell happened? Have the justices become uncontrollably verbose? Is that that much more to say that they can no longer just get to the point? Some (me, for example) have suggested that despite this obscene length, opinions have become less comprehensible, less useful. Is there an inverse correlation between the length of an opinion and its clarity? Has anyone told the justice this? Can anything be done about this, or are we saddled in perpetuity with reading prolix decisions that become increasingly confusing page after page?

A. I once told Justice Scalia that I was going to rewrite a Supreme Court opinion with a 90% saving in words, and much more clearly. He asked me not to do it. He said I would embarrass the Court. So I won’t do it.

Q. You’ve been the President of LawProse since 1990, but have really served as the Patron Saint of Legal Writing for the past generation. You done remarkable things, like interviewing Supreme Court justices. What do you do for an encore? Have you ever considered trying your theory in the courtroom? Would you want to sit on a bench and do the job of the folks you’ve interviewed? While you’ve dedicated your career to making lawyers better communicators, has that happened? The Green Bag called you the “leading authority on good legal writing,” but isn’t that a lot like being the best looking guy in the leper colony? How long can you keep proselytizing good writing?

A. People were asking me what I’d do for an encore in 1996. I’m glad I kept plugging away with LawProse and with book-writing. I’ve been privileged to have extraordinary experiences around the globe. I love what I do, and I plan to keep doing it. So far, it’s made me very happy. I hope things stay that way for a long while. But as someone once said, every story ultimately has an unhappy ending. I want to postpone that for as long as I can. My role model on this score is Jacques Barzun. If I can be puttering around my library at 102, still writing dictionaries and updating other books, I’ll be supremely happy.

Cross: Ex-Seattle Chief Norm Stamper, Still Breaking Ranks

October 12, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer Lindenberg cross former Seattle Police Chief Norm Stamper, author of To Protect and Serve: How to Fix America’s Police and Breaking Rank, A Top Cop’s Exposé of the Dark Side of American Policing and is a highly sought-after speaker for LEAP, Law Enforcement Against Prohibition.

Q. You’ve had a long, illustrious career in law enforcement: you started out as a beat cop in 1966, fully fifty years ago. That puts you in an extraordinary position to speak to what policing used to be like. The equipment was different, but what about the culture? What about the attitude toward the public? What about the fear? What was your training like? Back then, were you already expected to wear as many hats (social worker, medical first responder) as cops are today? What was it like, policing during Vietnam, the tail end of the civil rights movement, the urban riots? Has it really gotten worse, or just different?

A. The cop culture has changed little in the past 50 years. Why would it? It’s the product of a rigid, essentially unchanged paramilitary-bureaucratic structure that from the beginning has been male (and white) dominated, insulated and isolated from the people its officers have been hired to serve. That’s a recipe for intransigent in-group solidarity. Why would anyone be surprised at the “blue wall” mentality or the code of silence so common then, and now?

Although faced with campus unrest, civil rights insurrections, and anti-war demonstrations back in the sixties and early seventies (we spent a lot of 12-hour days mustering, hanging around, and often wading into rock-and-bottle-throwing riots,) we weren’t shooting people in those days. One reason, of course, is that we weren’t being shot at.

While there were too many guns in those days, their numbers have exploded over the years, which helps to account for what I see as increased fear on the part of officers. (It seems today that every other car stop, every other 911 call produces a gun or three or four—often in the hands of someone who should never be near a firearm.)

I’m not talking about the kind of healthy, managed fear that causes officers to use caution and approach potentially dangerous situations slowly, methodically. I’m talking about fear that manifests, in too many cops, as hair-on-fire, screeching and shouting: police officers whose primal fears (and lack of training, maturity, and self-discipline) cause them to overreact, to escalate rather than de-escalate, to lose control rather than exercise control. We didn’t see that kind of behavior much in my day. Sure, every once in a while a cop would lose it and light into a citizen. (I reject “civilians” to describe members of the community, as use of the term makes the police, ipso facto, the military.) Which is not to say there was no cruelty or brutality in those days. “Excessive force” was common, as was the use of racial and ethnic slurs.

Academy training was generally relevant, if limited. But it was to a large extent unhelpful in preparing us for sensitive, core responsibilities: defusing and de-escalating tense situations, understanding and appreciating cultural differences, what to do when working alongside a cop who broke the law, or someone’s skull.

We hear a lot of talk these days about society expecting too much of its police officers. Nothing new here. In fact, fifty years ago, probably a hundred years ago, when a citizen had a problem and didn’t know what to do with it, a common reaction was “call the cops.”

Years ago police departments set dispatch priorities that “weighted” the importance of incoming calls: life and death situations (armed robbery in progress, a drive-by shooting, a baby not breathing, etc.) were ranked No. 1, followed by others of the seemingly infinite variety of situations we humans might need to call a cop for. As first responders, police officers must be skilled at triage, and well informed about other agencies, public and private, whose resources can be brought to bear to help troubled people.

Q. Starting in 1977, by which time you’d reached the rank of captain, you took up a position as special advisor to the chief of police and began to work as a liaison between the police department and City Hall. One of your first responsibilities was finding a way to improve the relationship between the San Diego PD and the community, which had been damaged by allegations of racist treatment as well as the 1978 police shooting of an African-American resident. It seems the more things change, the more they stay the same: we’ve seen the same fact pattern unfold in cities like Baltimore, Chicago and Ferguson over the past few years. Were you able to improve things? If so, is there a lesson you could impart to today’s would-be police reformers and members of task forces? Has it always been this way? Can it be changed?

A. Yes, I would say it’s always been this way. And, yes, it can be changed. For the better, that is. Mostly because, for the first time, white middle-class citizens and politicians can actually see (and often hear) what actually takes place in many controversial police actions. Controversies that, especially in ethnic minority communities, have been commonplace for generations, dating back in an uninterrupted line from the days of slave patrols. Controversies that often do not jibe with official accounts.

In years past, an officer-involved shooting would be described, often in bureaucratic or legalistic fashion, by a police spokesperson. “The suspect then reached furtively into his waistband… the suspect turned on the officer with a knife… the suspect deliberately tried to run down the officer in his vehicle…” We read the account or watch the spokesperson being interviewed and think, Well, it’s tragic, just like the chief said, but you don’t come at a cop with a knife. Today, because of dash-cams, body-cams, security cameras, and ubiquitous cell phone cameras, we see things we never saw before. Like Laquan McDonald walking away from Chicago police officer Jason Van Dyke or Walter Scott fleeing on foot from North Charleston, South Carolina police officer Michael Slager. We watch in stomach-turning horror as each man, in these cases, was shot in the back.

Ambiguous situations as well as clear, defensible, even heroic, police actions have also been captured on video, to be sure. But, when a white cop commits a cold-blooded murder of a nonthreatening or unarmed black man—then lies about it (and is joined in that lie by fellow officers)—it reinforces what many people of color have always known or believed about their local police.

Q. Your time as a beat cop coincided with the beginning of what turned out to be a thirty-year surge in crime, as well as the rise of the community policing movement. The concept of “protecting and serving” was still relatively new at the time; the phrase itself was invented by the LAPD in 1955. So what was it like in San Diego? Did the police resent the prospect of closer cooperation with the community, having to pay more attention to its wishes? Was change forced on the cops, the result of popular discontent with the crime wave or widespread displeasure with police tactics and attitude? Or was it something the SDPD did voluntarily, because it saw an opportunity? You’re a lifelong believer in police-community engagement. Where did that belief come from? And in retrospect, did you and your fellow cops do a good job? Were there things that could have been done better?

A. I began my police career with the best of intentions. A vaguely liberal, highly idealistic 21-year-old, I told myself I’d be a good cop. I would treat people with dignity and respect, refuse to write chickenshit tickets, never, ever use the n-word, and honor the civil liberties of my fellow citizens. Those lofty intentions lasted about five minutes as I was sucked into the clutches of an extraordinarily powerful cop culture. When, at about 14 months on the job, I was slapped upside the head by a principled prosecutor (who questioned whether the U.S. Constitution meant anything to me,) I began studying my institution, its history, its problems, its potential.

In time, I came to believe the police in America belong to the people, not the other way around. That the job does, in fact, require officers to “protect and serve.” But it goes beyond that: it goes to a willingness and an ability to forge an authentic partnership with the community… with the citizens as senior partner. Most cops, however, reject that philosophy.

Regardless of what their chiefs or local politicians have to say about “community policing” or citizen participation or police-citizen collaboration, the attitude, most commonly conveyed in demeanor, is “We’re the cops, and you’re not.”

That said, there has been progress, however halting. And there are now, as there have always been, good cops: compassionate, caring, empathetic. Unfortunately, a single catalytic incident (use your imagination) can cause a backlash against positive changes. Which makes clear that deep-seated institutional change remains elusive.

Q. In 1983, you were made deputy chief of police at the SDPD; in 1989, you became Executive Assistant Chief. During that time, you had a lot of different responsibilities, but one consistent theme was oversight of your fellow officers. How did you weed out the misfits and poor performers in a large police department without making yourself very unpopular? Was misconduct common? Were there misdeeds that were tolerated, overlooked? Alcoholism? Domestic violence? Violating people’s civil rights? If an officer found himself struggling, how much support could he expect from the department or his fellow cops? Was “professional courtesy” a thing? And what about the bad apples? Were they as few in number then as certain people would have us believe they are now? Are there as many now as people believe?

A. Given the pressures, external and internal, it is understandable that police officers are at high risk for stress—and all of its negative consequences: low impulse control, sleep deprivation, alcohol and other substance abuse, other personal, medical, financial, and family nightmares. Further, a cop who fails to develop healthy coping mechanisms is far more likely to violate his fellow Americans’ civil liberties, engage in bigotry and brutality, and generally act in reputation-tarnishing fashion.

I’m proud to say that under the administration of two successive chiefs in San Diego, the SDPD made substantial progress in the effort to create a healthy, indeed, therapeutic organizational climate—and build a positive relationship with its communities. From pre-employment psychological screening and background investigations to solid improvements in entry-level and in-service training to smart protocols (peer support, fitness-for-duty appraisals, etc.) the department developed many programs to help officers cope with job-related stress.

Equally if not more important, the brass established nonnegotiable standards of performance and conduct… and it fired cops, including supervisors and managers (“bad apples”?) who couldn’t or wouldn’t live up to them.

Prior to this period, certainly from the time I joined the department in 1966 through the mid-nineties, “professional courtesy,” a quota system, and other organizational ills were a reality if not a defining characteristic of SDPD. That changed under Bill Kolender and Bob Burgreen, as did many other indices of agency health and professionalism. Successive chiefs, Jerry Sanders (who went on to become two-term mayor of the city), Dave Bejarano, Bill Lansdowne, and the city’s first woman top cop, Shelley Zimmerman, have carried on these fine traditions.

Yet, none of these chiefs, nor their promising, innovative policies or programs, has been able to rid the agency of so-called bad apples. With depressing regularity, on the watches of each of the aforementioned top cops, we’ve seen evidence of systemic problems: corruption, excessive force, serial sexual predation, the code of silence, and more. Shouldn’t this, at long last, cause us to examine the barrel, or indeed the whole apple orchard, i.e., the structure, the culture of the agency? I say yes.

Q. What’s your position on police unions? Is it a good thing that chiefs’ hands are so often tied when it comes to hiring, firing and disciplinary decisions? To the extent institutional reform is necessary, do unions stand in the way? And what about LEOBORs? Is it right that police officers have access to what amounts to a privilege set of due process rights the rest of us don’t? Shouldn’t everyone get that kind of protection, or is there a reason only police officers deserve it?

A. With few exceptions, local police unions are the scourge of American law enforcement, an embarrassment to the nation’s illustrious history of the general labor movement. Established in the face of arbitrary and capricious management practices, police unions served an honorable function… decades ago. Yet, at every turn since, in cities throughout the country, union leaders have fought even modest police reform initiatives.

Cops are legitimately entitled to the same civil liberties and due process rights of all Americans. So why an extra set of legal guarantees? The Law Enforcement Officers’ Bill of Rights is long overdue for repeal. Which will happen, I believe, when local politicians and state legislators grow a spine and stand up to the undeniable political clout of police unions. Or, when enough federal judges echo the sentiments of James L. Robart who, presiding over a DOJ consent decree, informed the Seattle Police Officers’ Guild that, no: its collective bargaining interests do not trump the Constitution when it comes to police reform. Hear, hear!

Q. In 1994, you became Chief of the Seattle police department. Now that you had your hands on the tiller, what were the reforms you’d always longed to implement, but couldn’t due to bureaucracy? How did you reshape the department? Were the rank-and-file officers responsive to the changes you made? At the SDPD, you were an early advocate of demilitarizing (the appearance of) the police, but the changes you proposed (like doing away with the ranks of Sergeant, Lieutenant and Captain) were rejected by your boss. Did the tread-softly approach go over well in Seattle? And how does that square with your department’s response to the 1999 Seattle WTO protests?

A. First, let’s get my botched response to the “Battle in Seattle” out of the way. I’ve acknowledged repeatedly that I made the biggest mistake of my career in authorizing the use of tear gas against nonviolent, in fact non-threatening, protesters. That was on Day 2 of the WTO ministerial conference. So why would I, an advocate of the demilitarization of law enforcement, bless the use of chemical agents under such circumstances? We have to go back to my days as a beat cop in the turbulent sixties.

Many were the times we were outnumbered, outflanked, and occasionally in danger of being overrun by demonstrators. On such occasions the standard prescription was to order up gas, lots of it, and to apply liberally. It was the “great equalizer” when the odds were stacked against you, and it became the default tactic in the sixties. It may have been expedient, but it was far from effective in the long run.

Particularly if an agency was working to establish a genuine “people’s police.”

In the seventies, as a newly minted, hydrophobic gasbag of a police reformer, I was all about “revolutionizing” the structure and culture of policing. And by the early nineties I was advocating a complete overhaul of the rigid, top-down, paramilitary-bureaucratic structure of the system. One of my suggestions, as the Executive Assistant Chief of Police, was to demilitarize the titles of first-line supervisors and middle managers (sergeant, lieutenant, captain, commander) within SDPD. Burgreen, my boss at the time, agreed not to immediately toss the proposition but to allow the debate to rage within the organization, for a couple of months.

It was a heady time within the agency, spirited debates taking place in the field as well as in offices and hallways of the department. My thought was that since “language structures reality,” if in our daily work we looked like, talked like, behaved like soldiers then we were… soldiers, an occupational force. In the end, my shelved proposal had won about a dozen (of 1,280) converts to the cause.

Q. Let’s talk police militarization, and more broadly: overreach. Is it acceptable to trade off some amount of police safety in exchange for better community relations? After all, you never know when you might need that BearCat. Is this even the right question to ask? Would eliminating military-surplus toys help heal the rift between big-city police departments and the people they serve, or would it amount to a cosmetic fix? Should SWAT teams be used to execute drug warrants as a matter of course? No-knock raids? Should they use StingRays to snoop on chicken-wing thieves? Is any amount of goodwill or respect for the Constitution worth putting a cop’s life at risk, however indirectly? If not, where should the trade-off be?

A. Here’s the deal. A cop does not need to uniformed, equipped, and weaponized like a soldier to be safe. The “soft” uniform, the everyday wear of America’s beat cops, replete with duty belt—on which is attached an array of practical weapons and tools—is perfectly suitable for the average patrol shift. That said, there are times and places when a city or county cop will, indeed, look more like a soldier than a domestic peacekeeper.

In the summer of 1984, James Huberty, armed with an Uzi, a shotgun, a 9 mm pistol, and a shitload of ammo, walked into the San Ysidro McDonald’s and opened fire. The 41-year-old killed 21 people, including five children, and wounded another 19 as he kept our patrol and SWAT officers penned down by gunfire. At an hour and seven minutes into the massacre, the “crazed gunman” had fired almost 250 rounds, many of them at cops who’d tried to get close enough to rescue victims and take out the shooter. Finally, a SWAT sharpshooter took a position in the post office across the street, lined up his shot, and ended the carnage.

In the aftermath of that horrible day we asked ourselves: Could we have saved additional lives? The answer was unequivocal: yes. Had we been in possession of an armored personnel carrier, we could have driven that vehicle up to the door—or through the door—of the iconic fast-food joint and, in all probability, saved many lives.

So there is a time and a place in police work for military-like appearance, military-like vehicles and equipment, military-like weaponry, and military-like tactics. But not in everyday, “routine” policing.

Every county agency, every urban police department needs a SWAT team, and it must be prepared to deal with armed and barricaded suspects, bank robbers who’ve seized hostages, rampage violence of the sort seen in Orlando and at Columbine High and Sandy Hook Elementary, assassination attempts on the lives of police officers, terrorist acts, and the like.

Horrific incidents can happen in small, rural towns as well, of course, but it makes no sense for tiny police agencies to sport their own SWAT teams. A regional approach makes more sense. The key, for agencies large and small, is a rigorous selection process, the finest training and equipment possible, and effective leadership and supervision. A well-disciplined, competent and confident SWAT team saves lives. I’ve seen it, numerous times.

I’ve also witnessed too many of those YouTubed pre-dawn drug raids: shoddy, militaristic, poorly planned or unplanned. Were it not for the all-too-frequent tragic outcomes, they’d be comical, in the manner of a Max Sennett Keystone Cops silent film. Distinctly unfunny is a bunch of undisciplined, ballistically armored and weaponized soldier-cops driving a BearCat onto the lawn of a suspected drug offender’s residence, ramming the front door, flash-banging grenades inside, starting fires, shooting innocent people and family pets, getting shot themselves, and generally terrorizing the entire neighborhood. Especially when they hit the wrong house, a not-infrequent occurrence.

We can do better, and we must.

Q. You’re an outspoken opponent of the War on Drugs, which, to put it mildly, is unusual in your line of work. Have you always held this position? If not, what led you to reconsider? Is it a noble experiment that didn’t pan out, or was it the wrong idea from the get-go? And then there’s prostitution. You don’t want to legalize streetwalkers, but you do favor decriminalizing prostitution “indoors.” What kind of legal framework do you have in mind? How closely should the government oversee the world’s oldest trade?

A. Drug prohibition was, indeed, the “wrong idea from the get-go,” but I didn’t realize this at first.

Our “narcotics” instructor at the academy—this was five years before Nixon’s famous declaration—fed us the company line: a strange mix of policy, enforcement procedures, legalese, and reefer madness. Drugs are bad, drugs are dangerous, people who take or deal drugs are bad and dangerous. They must be stopped, it’s our job to stop them.

In the field, I was a good soldier, dutifully making drug busts but usually only when I stumbled across luckless individuals who happened to be “holding”—most of them young, poor, and of color; or hippies or housewives or skid-row down-and-outers or rich kids partying on the beach or at mommy and daddy’s McMansion. Occasionally you might observe hand-to-hand dealing and make a felony pinch for trafficking. But for the most part, drug enforcement was left to a small Narco Squad.

Then came the announcement of “war,” in June of 1971, which made the country’s beat cops the enemy of so many people: disproportionately young, poor, black, Latino. You don’t fight a war without an enemy (or propaganda).

Prosecuted with roughly equal vigor by the entire succession of presidents since (with special enthusiasm by Presidents Reagan and Clinton), the War on Drugs has produced staggering consequences: the arrests of literally tens of millions of nonviolent drug offenders; the fragmentation of families; the ruination of countless individual lives; the often gross violations of Americans’ civil liberties; and the enormous costs to the taxpayer: $1.5 trillion. And the kicker? Drugs are more readily available (with greater access to our children) at lower prices and higher levels of potency than ever before. I can’t imagine a more colossal public policy failure.

I came to this view gradually and in the early nineties began speaking out against the drug war and in favor of replacing prohibition with a robustly enforced regulatory system.

Prostitution is more problematic, from my perspective. I have no ambiguous feelings whatsoever about human trafficking, about children or anyone else forced into prostitution, about pimps or johns physically abusing—or murdering—workers in the sex industry. These violations of human rights—and criminal laws—should be prosecuted to the fullest extent of the law.

Respecting all sides of the debate among feminists, and as a firm advocate of women’s rights, I do believe adult women, and adult men, should have the right to engage voluntarily in prostitution. I’m motivated as much by the health and safety of all parties as by individual rights of consenting adults.

Serial killings of sex industry workers would, I believe, be dramatically reduced under a regulated system.

Q. You’re an opponent of overincarceration, advocating “case-by-case release” of nonviolent drug offenders from prison. That puts you in good company: thanks in no small part to the efforts of FAMM, those offenders are more sympathetic than ever. But as Prof. John Pfaff pointed out in last week’s Cross, nonviolent drug offenders make up only a small subset of America’s prisoners, especially in state prisons. Pfaff argues that going by the numbers, the only way to make a dent in America’s oversized prison population is to less vigorously prosecute some of America’s violent offenders. Given that you’ve spent decades, in and out of uniform, battling domestic violence – precisely the sort of offense that used to be prosecuted less harshly than it is today – would you be willing to countenance more lenient treatment of violent offenders like domestic abusers if the payoff were a smaller prison population? If now, how do we put an end to prison nation?

A. Dr. Pfaff is certainly correct that (exclusively) nonviolent drug offenders do not make up a majority of the country’s prison population. But, as Brookings has made clear, “In every year from 1993 to 2009, more people were admitted for drug crimes than violent crimes. In the 2000s, the flow of incarceration for drug crimes exceeded admissions for property crimes each year. Nearly one-third of total prison admissions over this period were for drug crimes…”

One challenge with these numbers is apparent: How many defendants were convicted of a drug-related violent crime, and how many of a violence-related drug crime (possession or sales, for example)? This isn’t a gnat-milking distinction, I realize, but regardless of the answer it does offer hope that by ending the drug war we stand to end much of the violent behavior that attends it.

“Prison nation” is an apt description. Mass incarceration, fueled by the drug war, the prison-industrial complex, and the unconscionable practice of building and filling cells for profit, is a blight on the country and a drain on the public treasury. It must be reversed.

But not by releasing violent offenders.

Research-driven, evidence-based policies, programs, and facilities—and, of course, the law—are essential in determining who should be securely separated from society, and for how long.

Ensuring public safety is a vital responsibility of government, federal, state, and local. Jails and prisons play an important role in the equation. As do mental health and drug treatment programs. As a society, we must underwrite the costs of criminal justice and procedural due process, of incarceration, and of treatment—in secure facilities, as necessary.  But, in the end, we are simply jailing far too many of our citizens and, in the process, creating enormous social problems.

Q. In 2000, after 34 years in uniform, you retired as chief of the Seattle police department. Since then, you’ve become a sought-after columnist, consultant, advocate, expert witness… you even wrote a well-received book on “The Dark Side of American Policing.”

There’s been a great deal of debate as to whether change for the better in police departments will come from the rank-and-file or the leadership. Which approach should police reformers choose, winning the hearts and minds of street cops or dealing directly with the brass? Is fixing a dysfunctional PD a simple matter of replacing the top cops? Removing all the bad apples on patrol? Or are both answers too facile? Is there any way to force a change in law enforcement culture?

A. Like the preceding questions, these are excellent, relevant and thought provoking.

Recently retired NYPD commissioner Bill Bratton asserted, in his swan song, that while good ideas can come from a variety of sources, effective, meaningful reform “will never happen without leadership from within.” I believe he’s wrong or, at a minimum, his conclusion is worthy of debate.

In my newest book, To Protect and Serve: How to Fix America’s Police, I argue that policing is broken, and in urgent need of a fix—not a tweaking or tinkering but a radical overhaul of the way policing is organized and led.

Internal efforts are welcome, but insufficient. Community pressure is far more promising. But a combination of external and internal forces offers the greatest hope for effective crime-fighting—and for ending racism, sexism, homophobia, corruption, and excessive force in American law enforcement.

I offer an 8-Point agenda for reform. Here are my top three:

  1. End the drug war, for all the reasons described herein, and invest in massively improved education, prevention, and treatment.
  2. Embrace an entirely new, community-driven definition of “community policing” which would, among many other features, put citizens at the forefront of police policymaking, program development, crisis management, oversight of investigations into alleged misconduct, as well as all shooting and in-custody deaths at the hands of police.
  3. Set binding national standards for all procedural justice aspects of police work: hiring and training; discipline; stop-and-frisk; search and seizure; laws of arrest; seized and forfeited assets; collection, preservation, and identification of evidence (think lost or unexamined rape kits); use of force, including lethal force; investigating, reporting, and prosecuting (preferably independently) allegations of wrongdoing and excessive force. To this end, certify all cops—and agencies—that meet these standards. And decertify those that can’t or won’t play by the rules.

Cross: John Pfaff, Challenging Conventional Wisdom To End Overincarceration

October 5, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Fordham Law School Professor John Pfaff, whose scholarship has focused on the root causes of over-incarceration.

Q. Before you came to Fordham Law School, you held a John M. Olin fellowship (for conservative aspiring lawprofs) at Northwestern. And in addition to your J.D., you have a Ph.D. in economics from the University of Chicago. Your father was an economics professor – were you planning on following in his footsteps? Did you plan to go the academic route, or was it one of those things that just happened? Do you consider yourself a conservative lawprof? In an age of nigh-universal academic liberalism, has it led to any friction? Did you have a desire to try your hand in the trenches before the academy?

A. I didn’t head off to college intending to be an academic, at least not a social scientist. I started off thinking I was going to be a physicist. When that was clearly a bad idea, I shifted over to economics, though initially with the goal of becoming a foreign service officer. One summer internship in the State Department’s Office of the Middle East Peace Process later, and I decided that maybe being an academic economist was the way to go. And once in graduate school, I realized that law and economics seemed most interesting, so I applied to law school as well. So becoming a law professor sort of just happened, although it was probably always in the back of my mind as an option.

As for politics, despite my resume, I doubt I fall under the category of “conservative lawprof”: I don’t think of myself that way, and I doubt those who do would see me that way either. I’m certainly on the more conservative end within legal academia, and particularly so in the crimlaw world, but like the question says, that’s a fairly left-leaning bar. But I’ve certainly never really felt any sort of political friction. I mean, I get a lot of pushback all the time for what I say, but it never feels like it is due to ideology. That could be in part because when it comes to prison reform, I’m all over the ideological map, attacking public sector unions and defending private prisons one day, then arguing for more lenience towards those convicted of violence and against “personal responsibility” perspectives on crime that ignore racial and other structural barriers the next.

And no, I never had the desire to be a practicing lawyer. I did two summer associateships with a BigLaw firm in Chicago, and while they treated me great I realized it wasn’t the work I’m cut out to do. If the client’s case means digging into issue X, even when Y is a thousand times more interesting, you need to look at X. I want to follow Y, and academia gives me that freedom.

That said, before beginning the substantive part of this cross, perhaps I should make a disclosure. If I had gone into legal practice after law school, it would have been as a prosecutor. If I were to drop out of teaching and become a lawyer (and didn’t have to worry about how to feed three kids in New York City) I’d probably still be a prosecutor. Maybe one who wouldn’t get promoted too quickly, given my views, but still. I think that context is important, because in what follows I’m going to go after prosecutors pretty harshly for being the primary cause of mass incarceration today. It’s an argument contrary to my underlying political perspective.

Q. In numerous papers, interviews and posts at PrawfsBlawg, you’ve developed the theory that observers of the criminal justice system systematically misunderstand the reasons for America’s sky-high incarceration rate. What attracted you to this particular area of scholarship? Has it been difficult, disabusing people of received wisdom about the forces driving imprisonment? Have you experienced pushback, for instance, from people committed to reining in the War on Drugs, who may be inclined to see things like Obama’s commutations of nonviolent drug offenders’ sentences as more significant than they are? Is this a competition of causes? Do you take issue with those fighting against the War on Drugs that it is a bad thing, even if not the cause of over-incarceration ?

A. My interest in prisons began somewhat randomly. I was reading the Chicago Tribune one day over lunch in 2000, just as the dot-com bubble was bursting, and trying to think about what I should do for my dissertation. I came across a short two-paragraph article about how then-Governor Ryan was going to try to close a few prisons to save money as budgets tightened—but he wasn’t going to lay off any guards. That struck me as intriguing, and it made me start thinking about what really drove prison populations up and down. It ended up being a hard enough question that I wrote my dissertation on something else entirely, but once I started wrestling with the issue I couldn’t let it go. I think I’m something of a rarity in the legal academy in that almost everything I’ve written for the past ten years has been attacking a single question—what drove incarceration up?—just from various angles.

And yeah, I’ve experienced a fair amount of resistance. Though people often credit Michelle Alexander’s New Jim Crow for linking mass incarceration to the war on drugs, the idea long predates that—I was reading books making that point15 years ago. The conventional wisdom is deeply embedded, and it will take a lot of time to shift it. (To be clear, I don’t think Alexander claims she first made the connection, but she’s frequently cited by others for establishing the link.)

To be fair, I’m not unsympathetic to the resistance. Once you write something down on paper, it becomes emotionally hard to admit it is wrong. If someone has been arguing for years and years that it’s longer sentences and the war on drugs, it’s hard to simply reverse course when one or two papers come along suggesting otherwise. In fact, I often couch my results somewhat tentatively—“it may be that…”—partly because our criminal justice data is so shoddy that saying anything with certainty is a fool’s errand, but also to give myself room to admit in the future that I may be wrong, or at the very least that things are more nuanced than I suggested at first. Confirmation bias is a monster. One big risk of having my ideas gain wider traction is that I need to make sure I remain open-minded towards valid criticisms of them—but that’s not the easiest thing to do.

And, yes, I think it is a battle of causes, but for a very specific reason. None of the things I criticize are wrong—longer sentences, the war on drugs, and private prisons have all likely made things worse. But there are other factors that have played much bigger roles yet get much less attention. If political capital, time, and popular attention were all unlimited, then by all means we should attack the drug war, long sentences, private prisons, and everything else. But none of these resources is bottomless, so we need to triage: attack the important things first, and then work our way down the list if we have the time and energy. Unfortunately, the lists of what people think we should be attacking and what we actually need to be attacking often seem to rank things inversely.

Q. Conventional wisdom has it that the War on Drugs is especially to blame for America’s prison population. You disagree, pointing to statistics showing that while nearly half of inmates in federal prison are there for drug offenses, a much smaller percentage (historically no more than 22%) of state prisoners, who make up 88% of the total prison population, are serving time primarily because of a drug crime. Instead, violent and property offenders are much more common, and violent offenders alone account for more than half of the growth in state prison populations between 1980 and 2009. How did our perspective become so skewed? What makes us look at federal prisons as if they were representative and ignore the bigger picture? Do we look to the War on Drugs because it’s appealing to think of prisoners as victims of unjust government policies? Do we need to contemplate the possibility that people who shouldn’t be in prison, or not for as long as they are, nevertheless did bad stuff? Where did the dominant narrative come from?

A. First, the easy question. Why do we look so much at the outlier Feds? Because they’re the feds, and the national media is going to cover the national story. Federal reform will always get more attention in the big papers and newscasts than the latest news out of any one state. This is true in legal academia too: top-tier law reviews will always prefer the “national” study to the local, even if the more-local study actually tells a more widely applicable story.

Furthermore, the Feds are much more likely to hand down those insane sentences that again grab attention: sentences like life without parole for a first-time drug deal are, by and large, distinctly federal things. Unfortunately, these accounts generally don’t go on to explain why the Feds are an outlier, or even that they are an outlier, so the Fed story comes across as “the” story, despite being anything but.

In the current reform effort, I think we’ve also focused on the war on drugs because it is the most politically salable argument: the left and the right, as well as the elites and the general public, all can agree that some low-level, non-violent types are better served outside of prison, and perhaps outside the reach of criminal justice altogether. The argument I thus hear so frequently is that we need to build coalitions around the idea of fixing things for the low-level, non-violent drug offender, then expand from there. That sounds great in theory, but it often seems to fail in practice. The rhetoric we use to pass laws to lessen severity for people convicted of non-violent crimes often throws those convicted of violence under the bus. States from Maryland to South Carolina (think ideological distance, not geographic) have passed reform laws that cut sanctions for non-violent crimes but raise them for violent acts—and, in fact, it seems frequently that the increased severity for violent crimes is the unavoidable “price” for the low-level reforms.

And there are real costs to this rhetorical and political approach. A recent survey in Vox found that 60% of Americans—including 55% of liberals—are unwilling to cut punishments for those convicted of violence, even if those up for release pose a low risk of reoffending. Our unwillingness to accept that real prison reform will require lower punishments for violent crimes is, sadly, as bipartisan as the effort to reform things. (That same survey reported that about 60% of Americans, here uniformly across ideological affiliation, thought that about half of all prisoners are serving time for drug crimes; it’s a deep-rooted misperception, and I think the Fed focus has played a huge role in that.)

Q. Even if the War on Drugs isn’t directly responsible for the incarceration rate, could it be a major indirect factor? Between gang wars, the run-on effects of criminalization and the way a (drug) conviction makes it hard to live life free of further run-ins with the law, is it possible that a significant percentage of violent crime convictions are rooted in that misguided federal project after all?

A. So I’ve written an entire paper on this, as well as an entire chapter in my forthcoming book (I waited four question to plug it: I call that restraint); these are not questions that are easy to answer concisely. The main complication is that compared to a world with a war on drugs, the world without it would have more of some crimes and less of others, probably for a net decline, but not nearly as much as many would hope. In her fantastic book Ghettoside, LA Times journalist Jill Leovy argues, fairly convincingly, that the murder rate may not be that much lower in the absence of prohibition, since murders that take place over drug deals gone sour would simply be caused by some other source of friction. And Mark Kleiman has pointed out that capital-P Prohibition certainly led to an increase in Al Capone-style murders, but a decline in more-generic alcohol fueled deaths.

Drugs may be cheaper without the war on drugs (although that would be more likely under legalization than decriminalization), so some people would stop stealing to pay for a now-cheaper habit, but others would abuse more and may find themselves poorer than before. And on and on. And while there are a lot of drug convictions and drug arrests out there, they remain a fairly small fraction of the overall story. Between 1980 and 2012, for example, we made 43.2 million drug arrests. That’s a really big number, but it comes to under 10% of the 444.7 million total arrests—almost half a billion—made during that time.

Don’t get me wrong. Almost all of those 43.2 million drug arrests were for possession, so there are a lot of people (less than 43.2 million, since the 43.2 number treats someone arrested twice as two arrests, but a lot) who have criminal arrests records, and possibly conviction records, for low-level behavior; many of them are for pot, which is even harder to justify. Getting rid of these arrests and their collateral costs would be a good thing. But we shouldn’t oversell the magnitude of the impact that would have on the population of people with criminal records more generally.

Regardless of all that, I have to take particular issue with the claim that the War on Drugs is a “federal project.” There is no one war on drugs. Every state declared “war” at a different time—New York, for example, passed the Rockefeller Drug Laws in 1973, well before Reagan’s 1982 speech. And even that tells too-high level a story. Each county declares war at different times. While NY passed the Rockefeller Drug Laws in 1973, by 1984 the total number of people in New York prisons on drug charges was lower than it was in 1973. Between 1984 and 1996, the number in New York prisons for drugs soared, only to start falling in 1997, long before the Rock reform laws of 2004 and 2009.

The local DAs were mostly doing their own thing, ignoring the Rock laws when they were first adopted, and then pulling back before they were reformed. Or at least some of them: the decline from 1997 onward was driven by the New York City DAs, who cut back on sending people to prison for drugs, even as counties in the rest of the state have continued to send more and more. Telling federal, or even state, stories often eliminates the very source of the trends, which tend to be much more local. I bet there is often as much, if not more, heterogeneity within states as across them.

Q. Another conventional explanation focuses on the trend towards stricter and less flexible sentences, as expressed in the Sentencing Guidelines and the large-scale enactment of federal and state mandatory minimums beginning in the 1980s. To rebut that view, you point to statistics purporting to show that the average sentence served hasn’t actually changed that much in 30 years. Even so, crime is down massively since the 90s, but the incarceration rate continues to grow. The implication is that people are being sent to prison for less-than-horrible offenses, so shouldn’t we expect sentence length to fall? What role has parole, including the expansion of access in various states starting in the last decade, played in holding sentence lengths down? And what about the federal system, where you’re guaranteed to spend 85% of your sentence behind bars?

A. Let me start by saying that I don’t think my argument against longer sentences applies nearly so well to the Feds. Sentences are substantially longer in the federal system, and people serve a bigger chunk of them. My focus is on the states, which hold about 87% of all inmates, and which look nothing like the Feds. (I would wager that the two states that look least like each other when it comes to criminal justice have more similarities with each other than either does with the Feds.)

So yes, I think we oversell the importance of longer sentences. Not everyone agrees, and I think the point you raise about less-serious offending is a major bone of contention. If I were looking at broad categories like “violent crime” and “property crime,” this would be a serious concern. If murders are down and prison admissions for violent crimes are up, it seems likely that we are committing more assaults and fewer killings, and then stable time served is really masking increased toughness. (This is a common problem in statistics called Simpson’s Paradox.) However, as I show in the book (but not elsewhere, so I have nothing to link to yet), if we restrict ourselves to the 2000s, when sentencing data gets a lot better, time served is pretty flat even within specific offense categories (like aggravated assault, blackmail, firearm law violations, etc.). It’s still possible that the crimes we are charging even within each category are getting weaker, but that is less likely—or is happening to a lesser degree—than if we were looking at broad groupings like “violent crime.”

Second, we’d like to think that prosecutors have always triaged cases based on importance, so the most severe cases have always been the ones prosecuted first; if true, this would imply that falling crime plus rising convictions and prison admissions must mean more-marginal offenders are being locked up. But there’s at least anecdotal evidence that prosecutors may favor provability over importance, and those are not always perfectly correlated. So the severity of those being charged in lower-crime/higher-punishment times need not be less than in higher-crime/lower-punishment periods.

This is particularly feasible given how much “slippage” exists in criminal justice. Only 13% of all reported index crimes result in a prison admission, and only 1% of all index property crimes. A total of 10% of arrests for violent crimes and 8% of arrests for property crimes produce admissions. So it’s quite likely that prosecutors have always had a deep pool of fairly-equally serious cases to draw from, even as crime drops. (The answer to the next question will support this idea even more.)

Q. The actual culprit, you contend, is prosecutors’ newfound willingness to drop the hammer on defendants and file felony charges where a misdemeanor would once have been fine. Why is this happening? And how does this square with other contentions, such as prosecutors using excessive felony charges as a bludgeon to compel plea bargains? Is this just a gambit for prosecutors, or do they sincerely want to see every defendant put away forever? Why do prosecutors today see a decade of imprisonment as necessary when a few decades ago, probation was thought sufficient?

A. So first, here’s my argument, in academic form as well as a more readable version. Basically, it’s this: as crime dropped, we had fewer arrests, but a larger and larger fraction of those arrests turned into felony cases. Once felony charges were filed, the probability a case ended in a prison admission remained flat, as did time served. In other words, over much of the crime decline (my data ran from 1994 to 2008), the biggest change we see, by far, was this increased toughness by prosecutors when it came to filing charges.

Why did this happen? No idea. None. I have no solid evidence to point to.

This is because prosecutors provide us with no data at all about what they do. We have the Uniform Crime Reports, the National Crime Victimization Survey, the National Prisoner Statistics, the National Corrections Reporting Program: rich datasets on crime, arrests, and prisons that, whatever their flaws, give us a good sense of what is happening with crime, police, and prisons. But for prosecutors, the most powerful actors in the system? Nothing.

So all I have are some theories. Here are two. Between the 1970s and 1990, as crime soared, the nation hired an additional 3,000 prosecutors, bringing the total up to 20,000 from 17,000. Between 1990 and 2007, as crime dropped, we hired 10,000 more prosecutors, three times what we hired when crime was rising. These ADAs have to do something. And it looks like caseloads, measured by various indirect proxies (since we have no consistent data on the matter), have remained fairly stable as crime dropped. More prosecutors plus stable caseloads equals more felony cases, even if crime is going down (and like I showed in the previous question, there is a deep enough pool of serious-looking cases to keep all these new prosecutors working).

Another related issue is that between the 1970s and 2007, the number of prosecutor offices that were run by a full-time DA rose from about 45% to 85%. To the extent that more-rural prosecutors seem to be the source of increased aggressiveness these days, this could play a big role in that. New York City and LA have always had full-time prosecutors, so most of that professionalism took place in more-rural areas.

There are other factors too: prosecutors can use longer sentences as more-effective cudgels at plea bargaining (I bet this matters more than stacking charges, but I could be wrong), they may have more-reliable evidence to bring to bear (DNA, cell phone and security camera footage, etc.), the head prosecutor may be more ambitious for higher office, etc. But again, without any data, it’s hard to say more clearly. I think some of these may matter a lot—a colleague of mine and I have talked a lot about looking into the role of increased political ambition—but for now the lack of data leaves it at speculation.

Furthermore, there’s no real good evidence on what motivates prosecutorial behavior at the individual or office levels. I would say, though, that the real question isn’t “why decades now when it was probation before,” because time served is, I think, surprisingly short compared to what people believe: the median time spent in prison for drug or property crimes is about 18 months, and it’s about three years for a violent crime. I think the better question is “why is any sort of prison time required now when probation—or no charge at all—was okay in the past.” It’s not so much that people are spending more time in prison, it’s that more people are spending (the same amount of) time in prison.  Obviously the crime surge from 1960 to 1991 shaped and hardened attitudes, but all in all it’s a vitally important question hampered by a distinct lack of data.

(To head off the obvious objection, yes, some people are spending a lot of time in prison. But in a study of 200,000 people admitted to prison in 2003, I found that only 3% were still in, without having been released, by the end of 2013, and over 85% of those were in for a violent crime, 75% for an index violent crime, and about 25% in just for murder or manslaughter. So most of these were serious violent crimes. Moreover, when you read about all the people serving “life sentences,” realize that (1) fully 25% of those sentences are just in California, and (2) in many other states, “life” can mean release within 10 or 15 years—needlessly long terms, yes, but shorter than what “life” suggests.)

Q. Let’s assume “prosecutorial enthusiasm” is, in fact, primarily to blame for incarceration rates. But prosecutors don’t operate in a vacuum. Have changes in the legal landscape contributed to the problem? For instance, over the past twenty-five years, the weakening of the Fourth Amendment in cases like Whren v. United States has made it significantly harder to suppress evidence, making it significantly harder to challenge the prosecution. To what extent is the Supreme Court responsible for full prisons? Have they emboldened prosecutors to be needlessly harsh? What about defense attorneys? Has the defense fallen down on the job and let this happen?

A. Let’s start with defense. Defense hasn’t “fallen down.” Defense has been shoved down. Eighty percent of those facing prison time qualify for a public defender or appointed counsel. Yet we spend about $4.5 billion on indigent defense—about 2% of the over $200 billion states and counties dedicate to criminal justice. That’s less than the $5.5 billion per year we spend on prosecutors, and that $5.5 billion ignores that prosecutors have free access to investigators in a way that indigent defenders do not. One study in North Carolina found that accounting for these free services effectively tripled the prosecutors’ budgets.

There’s no need to recount the crisis public defense finds itself in, most notoriously in New Orleans. The fact is, however, that lawsuits about inadequately funded defense stretch across the country, from deep-red Louisiana to deep-blue New York. I think that adequately funding indigent defense is one of the most important things we need to do, and I think it is one of the few areas where the federal government could effectively intervene in a way that could really change what is happening on the ground at the state and county level.

As for SCOTUS, it’s possible that its decisions have mattered. I mean, I’m sure they have to some extent. But in a world of plea bargaining and overwhelmed public defense, it’s unclear whether SCOTUS’s shadow reaches where most cases are resolved. To what extent would a public defender with a caseload two to three times what is manageable and little to no access to investigators be able to establish that evidence was excludable if he was operating under more pro-defendant standards? On the margin, opinions that made it easier to exclude evidence would help, but I doubt by too much. In the end, though, I think SCOTUS has spent so much time focusing on the margins of things—the death penalty, which for all its emotional power impacts a vanishingly small fraction of cases (about 0.1% of the prison and jail population, and about 0.03% of those under correctional control are on death row), and jury-trial rights, which almost no defendants invoke in a world of plea bargains and bench trials—that its overall impact on a plea-driven world is pretty slight.

Q. What’s to be done about prosecutorial discretion? If the War on Drugs were the true culprit, we could look to a future administration to reverse course. But district attorneys operate on the county level. Police reformers like to blame misconduct on “cop culture,” and hope to address it through reform. Is there something like a homogenous “prosecutor culture” we could try to use as a lever, or is that a pipe dream? Even if there were, would prosecutors be receptive to the idea that not every defendant needs to be imprisoned? What would elected DAs’ constituents say? Is it politically feasible? How can they be moved to change?

A. Changing culture is hard, especially because prosecutors are so local. In some cases, elections can work. Tough on crime prosecutors have lost not just in Democratic primaries in blue districts like Chicago/Cook County, but in Republican primaries in red districts like Florida’s Fourth Judicial Circuit (Jacksonville). But it is likely that there are a lot of tough-on-crime prosecutors who are politically secure.

Constituents pose a problem, and I think it is important to emphasize how. While prosecutors are elected by the county, crimes (at least in urban counties) tend to be concentrated in the cities. Yet suburban voters have disproportionate voting power—in other words, those who elect the prosecutor are not the ones who feel the costs of excessive enforcement. It wasn’t always like this: as Bill Stuntz points out, prior to the end of World War II and the rise of suburbanization, those in the cities who felt the brunt of crime also tended to control the cities’ political machines. This created a certain amount of balance. Now, however, costs and benefits are separated, with those who feel the benefits but bear far fewer costs wielding the power, which surely motivates some of the excessiveness—especially given that the disconnect operates along sharply racial lines.

So I think another solution to consider would be to move to urban districts: let Detroit have a prosecutor and non-Detroit Wayne County another one. This is not a panacea—such city-only districts exist in NYC, Baltimore, St. Louis, and a few other places, some of which are doing better than others (but all of which could, perhaps, have done even worse if the ring suburbs were included)—but I think it is an idea worth pursuing more.

I’m increasingly drawn to the idea of legally binding charging and plea bargaining guidelines that restrict prosecutors just the way sentencing guidelines restrict judges. New Jersey actually has its Brimage Guidelines, which are plea bargaining guidelines for a small set of serious drug offenses. I think that states could expand these to cover more offenses and more decision-nodes that prosecutors face. As long as they are enacted by the legislature, I think courts would enforce them, so the county-ness of prosecutors would not thwart them. Obviously, there are a thousand issues, big and small, about what such guidelines should look like, but I think all of them are surmountable. Working through what such guidelines would look like is one of my next big projects.

Q. Failing that, what kinds of incentives could we set for government officials to reduce the prison population? Financial? Incarcerating people isn’t cheap, and local and state budgets are a little less “unlimited” than the feds’. But do prosecutors care? Is there a pragmatic argument to be made here, about the failure of prison time as a rehabilitative measure and the costs that come with shutting people out of employment or turning them into repeat offenders? Should we make a moral argument, like Julie Stewart has with FAMM? Is that even possible with violent and property offenders? Do we need better data before we can settle on a plan of attack? Have we so vilified criminals that there is no political will to turn back?

A. So on the financial front, there is at least one thing we can do: close, or at least narrow, the giant moral hazard problem with incarceration. Prosecutors, who determine who goes to prison, are county officials, but prisons are paid for by the state. Prison is, in effect, a free resource for a prosecutor. Even worse, less-severe punishments, like jail or probation, are paid for by the county. So prison is actually cheaper than probation, at least in the eyes of county officials. (The small print: We have 50 states doing 50 different things; specifics may vary within specific states. This is a broad but not unfair generalization.)

California is basically the only state to try to correct this, via its complex “Realignment” program. The core idea is that someone convicted of a “triple non” offense—a non-violent, non-“serious” crime that does not require registration as a sex offender—must serve his time in the county jail, not the state prison, even if the conviction is for a felony. Most triple-nons face fairly short sentences, but some can reach up to eight years, and some aren’t all that minor (like negligent homicide, which California does not classify as “violent”). There’s a lot of complexity in Realignment, and I think California has made some big mistakes in how they have implemented it, but the central approach is worth thinking about.

Unfortunately, in strict dollar terms, incarceration is cheap. For all the talk about the costs of prison spending, it’s only about 2% to 3% of state budgets, maybe 6% of discretionary budgets. Alternatives which may be much more socially efficient are more likely to be fiscally expensive: locking people up doesn’t require a lot of manpower, but treating or working with them does. Something on the order of 50% to 75% of correctional budgets go to wages, so more labor-intensive alternatives, even outside the prison, are likely to be relatively more expensive, something Indiana is currently wrestling with. (To be clear, prisons are almost certainly more socially costly than more-local alternatives, but likely cheaper per prisoner when compared in state budget dollar terms.)

In the end, I think what decarceration is going to take is a fundamental attitude shift. I don’t wholly agree with Michelle Alexander’s claim that there is little the law can do to stop mass incarceration, but I am sympathetic to her broader lament that what is needed is some sort of deeper moral or spiritual change. We have to want to be less punitive.

This is why I find the Brock Turner case (the Stanford rape case) so frustrating. I agree that the sentence felt too low, especially compared to what is routinely imposed for equally severe if not less-harmful non-rape assaults. Yet faced with this, liberal critics of the sentence had two options: follow the tried and true tough-on-crime path of insisting that parity means jacking up the severity, or take the call for decarceration to heart and make the far more radical argument that the disparity between the Brock case and others showed the need to reduce the sanctions for the other crimes. Choosing the former was a blown opportunity to demonstrate what a true commitment to decarceration requires.

I get the political preposterousness of that last paragraph. No politician right now is going to win for passing the “Make All Sentences LESS Severe Act.” But to the extent that previous paragraph sounds like a fever dream, it shows how big an attitude adjustment we need to make. Otherwise we’re always going to vulnerable to backsliding—like we just saw in Arkansas, where a 10% drop in prison populations following the adoption of a reform bill turned into a 25% increase in the wake of a single murder by a single parolee.

Q. What’s in your future? You’re ten years into your professorial career, a successful scholar, young, popular with your students. Would you like to put your empirical knowledge to work as a judge? Maybe try a few cases after plea negotiations break down? Take a more direct role in pushing penal reform? Is the ivory tower everything you hoped for? Whither must you wander?

A. I don’t see myself ever leaving academia. I love teaching, and I love the freedom to explore whatever issue strikes me as interesting in whatever way I want to approach it. At the same time, I’ve never wanted to cloister myself in the ivory tower either. To the likely benefit of criminal defendants, I doubt I’ll end up trying cases any time soon—David Faigman once wrote something along the lines that every JD/PhD is either a social scientist with a JD or a lawyer with a PhD, and I’m definitely the former—but I am interested in doing more to change what our policies really are, and I’ve started to have some conversations with policy-making types along those lines. I think that’s where I can make the biggest contribution: I understand how the law actually operates, but I’m more comfortable than most with the numbers.


Cross: Carol O’Brien, Because There Are Bad People Out There

September 28, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg Cross Delaware County, Ohio’s Prosecuting Attorney, Carol O’Brien.

Q. Your journey started at Northwestern, in Evanston, Illinois, where you majored in political science, but apparently planned to become a high school teacher. Was that the dream? Teaching is certainly a vital profession, but you chose not to pursue and to head off to law school instead. Did something put you off from teaching? What made you decide that, for a teacher, you would make a good lawyer? Was there some direction in law that drew you to law school?

A. Actually I started telling people in 5th grade – to be specific, the first time I mentioned it was in gym class… – that I wanted to be a lawyer. I wanted to be Perry Mason. Yes, all of you young folk need to look that name up. I took the education classes at Northwestern because they sounded fun – and as a back up. I am a bit of a worrier and I wanted to make sure I had something to fall back on in case I didn’t get into law school. Funny thing…I really enjoyed teaching.

By the way, I’ve never had my Perry Mason moment – you know the one where the witness on the stand breaks down under the masterful cross by Defense Attorney Mason and admits to the crime – totally exonerating the defendant. I’m still trying to get a defendant to break down on the stand during my masterful cross and admit to the crime….

Q. In 1980, you headed to Toledo for law school. Why Ohio, of all places? You excelled in school, winning the AmJur prize for torts. Did you have dreams of doing personal injury law? You also coordinated the Wagner Labor Law competition. Maybe labor law was going to be your thing? What you didn’t do was focus your energies on criminal law. Did it hold little interest at the time? What areas of law fascinated you at Toledo Law? What were your plans when you graduated in 1983?

A. Born in Toledo and raised in Maumee, Ohio. Toledo was the only law school I applied to. Figured if I didn’t get in, I would teach or stay at the full time job I had in my senior year at Northwestern. I chose Toledo because it was home. I loved Chicago but I wanted to see if it was better to be closer to home and family or to move back to Chicago – turns out I did neither!

My initial post-law school dream was to be in private practice – had no idea what that entailed! I had absolutely no inclination to practice criminal law, though one of my favorite classes was the required criminal law class. The professor was a practicing old school criminal defense lawyer who taught not only the law but the practice. I also loved the way he rushed through the discussion on sex crimes because he was embarrassed to be talking about sexual assaults in front of women. I really enjoyed my Labor Law classes and decided that was what I wanted to pursue – unfortunately (?) love got in the way and I married a fellow law student who was Naval JAG officer. He was stationed in Charleston, SC and there wasn’t a huge call for labor lawyers in Charleston.

Q. Your first job out of law school was with the Advocates for Basic Legal Equality, in appropriately-named Defiance, Ohio, handling civil litigation on behalf of low-income individuals and groups. Was this a cause to you, or was it just where you got a job? Representing the poor certainly offers a perspective that few learn in law school. Did this affect your perspective of how law impacts the poor? Did you gain an appreciation of the difficulties faced by the poor? What did you takeaway from this work?

A. I would like to say that I took the job with ABLE because I had a huge interest in the cause, but I took the job because they were as desperate to have someone with a law degree as I was to get a law job. I was living in Toledo while my husband was finishing up his training with the Navy, and we were transferring to South Carolina in April of 1984. I was barely in the office a month when the managing attorney left and I was the only attorney in the office. I tried a case (or should I say, I tried to try a case – sheesh I was bad) with no assistance against one of the most experienced attorneys in the area. It was horrible. I lost. I learned then that knowing what you don’t know and knowing when to ask for help are really important skills for a lawyer to have.

I didn’t really start practicing law until I moved to Charleston and was hired by Neighborhood Legal Assistance Program (NLAP). NLAP had a great mentoring program from which I learned what it means to be a lawyer and to represent someone. Because of the huge need for legal services for the poor in Charleston, we accepted only a small percentage of cases that walked in the door. Divorce cases with children and violence; social security disability cases, landlord tenant – where a need was immediate. The Charleston Bar was small, so all the attorneys and judges knew each other.

Working with poorer clients required me to be creative. I couldn’t just give them an appointment and expect them to be there – we had to work out the logistics. If they were taking the bus we had to look at bus schedules. If they were working we might have to meet after 5:00 pm or before 9:00 am. Many times my clients didn’t get much schooling, so I would have to make sure I took the time to explain what was happening. I couldn’t just give them paperwork and say read it; they may not be able to read.

I believe that my work with ABLE and NLAP made me a better lawyer. It taught me how to listen, how to work with people and it made me realize that if I wanted to connect with people I had to do more than dictate to them, I had to talk to them. It taught me that lawyering is not a 9 to 5 job.

Q. Following your trip down to South Carolina, where you spent a couple of years working for the Neighborhood Legal Assistance Program, against representing low-income residents in civil matters, before returning to Ohio as a staff attorney for The Ohio State law school’s Civil Litigation Clinic. Were you returning to your teacher roots? Did you want to go academic? Had you considered going for a tenured teaching position? You also did volunteer work as a mediator, teaching a mediation seminar and serving as a hearing officer for landlord/tenant disputes. Having been a litigator in the trenches, did you become a mediation convert?

A. I found the clinic experience amazingly worthwhile – both for me and for the students. I think that the clinical programs are some of the most educational of any of the courses at the law schools. To give a student a look at real life, a chance to see what they face when they graduate and go out into the real world, is amazing.

When I took the position with OSU, I was informed that the position was at the most a three year position – with no chance of a tenure or longer track position. I was fine with that. However, after I was in the position for a year ,I started talking to the professors associated with the program and suggested that they look into making it into a different type of position – they agreed and the attorneys who came after me stayed for much longer periods of time. I think that change was beneficial for the program.

I think that experience did reignite my interest in teaching. I truly enjoyed working with the law students – they did amazing work on their cases and for their clients. The attorneys who were “on the other side” of the cases were truly amazed at the level of legal work they saw from the students. Of course the students were generally only working on one or two cases, but they worked them to death.

I have continued to mentor new attorneys and to teach to some degree since then. I have presented at a number of seminars for attorneys and law enforcement, I taught at Columbus State Community College and I speak to middle school and high school students on a regular basis. I would love to get back into teaching at the collegiate or law school level.

I believe that mediation is a viable alternative for the right type of cases in the system. I was fortunate enough to work with former Ohio State University College of Law Dean Nancy Rogers, who is a leader in the field of mediation. She is so knowledgeable and talented in the field that I learned a tremendous amount. I think mediation is appropriate for cases that are based on principle and where there is not a tremendous “power” difference between the parties. For some time, there was a push for mediation in domestic violence case – I do not believe that mediation is ever appropriate in those cases.

Q. In 1992, you left the warmth of academia for the cold of the Montgomery County prosecutor’s office as a special assistant. What gave rise to this paradigm shift in your practice? Had you considered being a prosecutor before that? What made you decide to leave the representation of the poor behind? Your first job dealt with nuisance abatement. Did that feel different that prosecuting individuals for crimes? Did you view yourself as a “real” prosecutor at the time? Did you see this as an extension of helping the same people you served before, but in a different capacity?

A. I actually left OSU in 1989 to take a position with the Civil Division of Franklin County Ohio Prosecutor’s Office. Toward the end of my three year commitment with OSU the chief of the civil division in Franklin County told me he’d rather have me working with him than against him and he offered me a job. We had an amazing group of folks in the civil division – it truly felt like I was home. I represented the Elected Officials and employees in the county when they were sued. I really had no intention of being a “prosecutor” (criminal) and most assistant prosecutors handling criminal cases have no idea what an assistant prosecutor in the civil division does – I believe they literally shudder just thinking about it.

During my time in the civil division we had an issue with Adult Bookstores allowing sexual acts to occur in their stores, and I was “drafted” to assist with nuisance abatement cases. We filed nuisance abatement cases against 9 bookstores. Though this was a civil enforcement issue against the book stores, it also involved the owners of the book stores and of all the civil cases I handled, these were probably most like criminal prosecutions. Though there was no jail/prison time involved, the cases were prosecuted against defendants and the penalties could be substantial.

When I was in the civil division, my clients were statutory. I represented the elected officials, the county agencies and their employees, so the client base was totally different than when I worked with Legal Aid.

Q. In 1993, you served in the Franklin County, Ohio, prosecutor’s office as Deputy Chief of Economic Crimes, where you were involved in prosecutor more serious crimes, from public corruption to RICO. Did this reflect a shift to being a serious prosecutor? Was there a different sense of purpose then, of being integral to going after criminals? You later worked for a number of other prosecutors offices, doing all manner of criminal prosecution. At what point did you decide that your purpose was to be a serious prosecutor? Did you view yourself as serving the public good, or did you just like to put those bad dudes away?

A. I’m not sure I would view the prosecution of more serious crimes as a shift to being a serious prosecutor – it was a shift to becoming a criminal prosecutor. As a civil prosecutor, I handled multi-million dollar lawsuits against county elected officials, agencies and employees. I handled wrongful death litigation, civil rights litigation and any number of other types of cases that would be considered serious. The focus is different. As a civil prosecutor I was defending people who were accused of some sort of civil breach. As a criminal prosecutor I am accusing someone of committing a crime. In both civil and criminal roles, the basic role is to look at your evidence, to talk to everyone involved – parties, witnesses, victims, investigators and try to figure out what really happened.

The role of any prosecutor – be it the elected, appointed or assistant, is to do justice. That is our mandate. I take that seriously. I “go after” criminals and “bad dudes” because they have violated the law. While I worked at the prosecutor’s offices in Franklin and Delaware and when I was at the Ohio Attorney General’s office I was often asked to handle prosecutions in other jurisdictions. The prosecutions were generally high profile and involved complicated fact patterns. I appreciate being involved in those types of cases because they are challenging and require me to utilize all my skills as a lawyer.

Behind every “bad dude” is a victim. I was at my high school reunion last month and someone came up to me just to tell me that he is an empathic person and cares about people. He represents defendants who claim to have brain injuries and he feels the criminal justice system “is not fair” to these people. They can’t help themselves and they shouldn’t be imprisoned. I told him I’m an empathic person and I care about people too. What would he suggest we do with a “brain injured” person who breaks into a home and rapes a 90-year-old woman? Frankly, I’m going to side with the 90-year-old woman.

I have sat and held the hand of an 8-year-old girl as she sobbed while telling me her grandfather raped her. I listened to a young man as he described his horror when his car was rear ended by a drunk driver (who’d been convicted of OVI numerous times) and his wife was killed as she threw herself over the carseat of their not quite one-year-old daughter to save her.

I reviewed the audio interview by an Arizona Detective of a father admitting to raping his very young daughter while they lived in Ohio because he thought the Arizona detective could not charge him with the crimes in Ohio. And then when he made bail and fled to Germany for 12 years, I worked with the feds to get him back. I’ve reviewed autopsy photos of babies and child porn videos involving babies – I can never get those images out of my mind.

My job is to do justice, protect the citizens of my state and to make sure that these defendants cannot harm another person. These victims are the people who make it “easier” for me to go after the bad dude. If I can help these victims get some semblance of their lives back and if I can help them become surviviors and thrive, then I am serving the public good. If I can get the bad dudes off the street so they don’t harm another person, then I am serving the public good.

Q. While you had plenty of experience in civil litigation, you eventually reached you first felony jury trial as prosecutor. How did that go? Were you the trial lawyer you hoped to be? Any major gaffes or moments of brilliance? What was the difference in trying a criminal case as opposed to civil? Looking back now, would you have done anything differently?

A. While I absolutely sucked in my first civil trial – if only the floor had opened and swallowed me up – my first criminal trial went well. I had a significant number of civil trials both at the state and federal levels, so I was well-versed in trial procedure. I was nervous – there is so much more at stake in a criminal trial for both the prosecution and defense. There are more rules in trying a criminal case – the defendant has a number of procedural safeguards that are not available in civil cases.

In criminal cases you have to be able to think on your feet and respond quickly to ever-shifting issues. Civil cases are more scripted out because in most civil cases you have deposed (or should have) every witness and you know exactly what they are going to say – and if they don’t follow the script, you have prior testimony with which to cross them. You do not have that in a criminal case.

Q. You were a felony staff trial prosecutor in Delaware County, when you were appointed Prosecuting Attorney in 2011. How did that happen? Did you want the big job at the time? You were elected to the position in 2012, so by then you demonstrated that you earned the position. What did it mean to hold the top job? The responsibility of locking human beings up, perhaps even taking their lives, is enormous. What was your perspective toward the awesome given prosecutors? Did you see yourself as avenging the victims of crime? Could you still remember those low income people you represented years before? Did you appreciate that you were holding a huge bludgeon?

A. Absolutely never thought I would be an elected anything….wasn’t my cup of tea. I have a tendency to speak my mind – without a lot of filters – which generally isn’t a great way to win friends and influence people. When I took the position as an assistant in Delaware County, I didn’t even live in the county.

In 2010, my mother-in-law was in need of more care and moved in with my husband and me. It took about a week to realize we needed a different home – no steps. We started looking and since both of us worked in Delaware we figured we would look for a home there. Our boss, David Yost, was running for State Auditor. At the time we purchased the home – a beautiful 1920 Craftsman home – we did not think Dave would be successful in his bid. A few months later, he was leading in the polls and on November 2, 2010 he was elected Auditor.

My husband decided to move to the Auditor’s office with Dave – though he was the appointed Prosecutor for 10 days – just ask him, he’ll tell you, he was Prosecutor first – and I had the most experience in the office. I went through the process and was appointed. I stood for election in 2012 and was fortunate enough to not have an opponent. I am on the ballot this year and again do not have an opponent.

There are many nights I don’t sleep – being the elected Prosecutor is a huge responsibility and there are hundreds of moving parts. It is not my job to avenge the victims of crime, but it is my job to make sure those who commit felony crimes in Delaware County are held responsible – to their victims, to the community. Sometimes that requires they work their way through the justice system and sometimes they take alternative routes. The Court has a program for offenders who are addicted or mentally ill and those challenges contributed to the crime – it’s called Intervention in Lieu of Conviction – if the defendant completes the terms of that program all charges are dismissed and the records can be sealed. I also have a Diversion program for first time felony offenders. Defendants are admitted to the program with the permission of the law enforcement officer, the victim and the assistant prosecutor on the case. They are supervised for a year, required to make restitution and to work community service hours. If they complete the program their charges are dismissed and records sealed. It is giving people a second chance and most folks on the program are successful.

As prosecutor you look at all the circumstances relating to the crime committed – while it may tug at my heart strings that a defendant had a hard life growing up, or is currently living in a difficult situation I really cannot take that into account in my charging decision. I have a responsibility to the citizens of Delaware County to hold defendants responsible for their actions – Lady Liberty wears a blindfold for a reason.

I do not look at defendants during court proceedings. As a mother of three sons, my heart breaks when I see a young man or woman walk into the courtroom wearing shackles – there but for the Grace of God….As prosecutors we have to focus on the facts, all the facts of a case and not let our innate biases influence our decisions. There are some words I never want to hear from a defense attorney or defendant – do not ever tell me that what I am doing is going to a) ruin your family’s life b) embarrass your mother, sister, wife, children etc., or c) make you lose your job. Why should I care if you didn’t? I always feel for the family of the defendant – they pay a huge price for the actions of a family member – but I did not cause the defendant to take the actions he /she did.

Q. Ohio has experienced some huge issues in the past few years, from the killing of Tamir Rice, which likely cost Cuyahoga County prosecutor Tim McGinty his job, to Michael Brelo’s acquittal for killing Timothy Russell and his passenger, Malissa Williams, both black. How does this affect what you do? Is racism, explicit or implicit, a concern in how police perform their function? Would you hesitate to prosecute a cop if you believed the evidence was there? What can a prosecutor do to change the perception of an untrustworthy system that favors the life of a police officer? Is the First Rule of Policing, make it home for dinner, real? Should it be? Are cop lives more valued than others?

A. Most certainly Tim McGinty lost his job because of the grand jury’s decision in the Tamir Rice shooting. I know Tim. I know that he would handle the situation the same way, even knowing he would lose the election, because he thought what he did was the right way to handle the situation. I don’t know Judge O’Donnell, but he had an extreme amount of pressure to convict Michael Brelo and he found the evidence insufficient. Tough call.

I think that racism is always a concern for law enforcement agencies. Most people have innate biases and prejudices that have to be overcome – sometimes this is easy and other times not so much. I’m going to give a shout out to the law enforcement agencies in Delaware County because all of the agencies have significant outreach programs that help address the perception of an untrustworthy system. Each public school district in Delaware County partners with law enforcement and there is a School Resource Officer (SRO) in every school. Unlike the Chicago statistics, there has not been an increase in arrests or expulsions as a result of the presence of the SROs. Many times the SROs have been there to assist students with the difficult realities of their lives – bullying, domestic violence, no food, and any other number of situations.

Westerville PD has a Cops and Kids day where local law enforcement and community groups get together to host a day of fun for the children – the chief in the dunk tank is a huge draw. Powell PD sponsors Candy by the Carload – a Halloween event, and Mystery Night. Delaware Police Department and the Delaware County Sheriff’s Office host Picnic with the Cops in August, and they sponsor basketball and baseball leagues for children who are in the less affluent areas of the city.

At least in Delaware County there is an effort to open the lines of communication, an effort to address the innate bias and prejudices that exist and to help people understand the system. As prosecutor, I participate in a lot of public events. Besides the events with law enforcement (yes, I was in the dunk tank), I speak to school age children, I attend events at the schools and in the community. I will speak to any group that contacts me even if there are only 2 to three people attending the event. When I speak to groups, I invite students to spend a day, a week, a month shadowing in my office. We have a booth at the fair and I write a monthly article for the local newspaper.

I just recently indicted the Sheriff of Sandusky County, Ohio – so, no I do not hesitate to prosecute law enforcement. If a police officer commits a crime he gets indicted. End of story. Generally, if the officer or deputy is someone that I or my staff have a lot of involvement with, I will have a Special Prosecutor appointed because the appearance of a conflict might make my decision to indict or not indict subject to question. I do not hesitate to request the appointment of a special prosecutor in those situations.

I have only had one lethal police shooting in Delaware County – white officer, black man stopped for a traffic violation. The encounter was captured on cruiser video, the suspect was under the influence of drugs and earlier in the evening had waved a gun around, telling people that he wasn’t going back to prison. When stopped, he had the gun on his lap and was waiting for the officer to come to the driver side window. Instead the officer went to the passenger side window, saw the gun, told the driver put his hands up, the driver picked up the gun, pointed it at the officer and the officer shot him. Had the officer gone to the driver’s window, the officer would have been dead. An outside agency investigated the shooting and the case was presented to grand jury. There was no indictment.

The first rule of any job should be to make it home for dinner. Period. If you are a truck driver, a teacher, a prosecutor, a police officer, a garbage man or if you work at the makeup counter at Macy’s, you should always get to go home to your family. I don’t think that the system favors the life of a police officer. I think that the system recognizes that police officers face dangers that non-police officers don’t. The Powell Police Department invited citizens to attend a training, where they were placed into scenarios where a suspect may have a gun – or may have a phone or some other object – and the participants were given the opportunity to shoot or not shoot – every single person pulled that trigger. Granted those folks do not have the training that police officers have but the scenario gives folks an idea of what law enforcement faces.

I teach the legal aspect of the Concealed Carry Class in Ohio. Two of my three sons are concealed carry permit holders – the third is military. I drill into them – if you are stopped by police – hands remain on the wheel, you say officer, let me interrupt, I am a concealed carry holder – I do (or do not) have my gun. And if they have their gun, tell the officer where it is. Not only is this the law but, more importantly, it lets the officer know what he/she is facing. Do not argue with a police officer – you know the officer has a gun, if he says lift your hands into the air – do it. Do not argue. It should be your goal to go home for dinner.

Q. You gave the approval to an assistant prosecuting attorney, Andrew King, to do what many other prosecutors are scared to death to allow. You let him write for Fault Lines. What makes a prosecutor afraid to allow their staff to express their views? Are these concerns real, or more CYA in the sense of why take a chance? Many prosecutors find themselves wishing their perspective was out there, in an honest and forthright discussion, but they refuse to let their people take the chance. Why did you? Is there any sound reason why prosecutors, as well as anyone else, shouldn’t be able to express their views? Does this add to transparency and help people to better understand the system? Would we all be better off if we appreciated all points of view, rather than echos of our own? Are you as proud of Andrew as I am?

A. Andrew does a great job with his posts – I read most of them and I am pleased to see the time and effort he puts into the analysis of every article he writes. Andrew is actually in our civil division, but is currently second chair on a criminal case with me – after this experience he may want to stay in the civil division.

I have a staff of 31 – 16 lawyers (15 ½ – one waiting for bar results), victim advocates and support staff. At any given time I can have anywhere from 1 to 6 legal and non-legal interns. I am responsible for what each of them say and do on any given day. I can also tell you that we do not always agree on how every case should be handled. Because my name is on the door, the final say is mine but I generally only overrule the decision of an assistant prosecutor if I believe they need to do more work on the case. If they have done their leg work and can give me a legitimate reason, other than we might not win at trial, why they case should be pleaded down or dismissed, I usually agree.

Can anyone think of anytime a prosecutor put their perspective out there in an honest and forthright way where he/she wasn’t vilified? Cuyahoga County Prosecutor McGinty? Baltimore City State’s Attorney Marilyn Mosby? The prosecutor in the Michael Brown case? And many others? As you mentioned being a prosecutor is an awesome responsibility – and it is a complex position. Most citizens do not understand how the criminal justice system works in their state– and once you add in the federal system it becomes even more confusing. There are so many intricacies to the system that we as prosecutors live with but are difficult to explain to the public.

While I cannot speak for any other prosecutor, I think that there are a few generalizations that apply to all of us. Prosecutors are subject to a different set of standards/rules/ethical concerns than other attorneys. We have restrictions that a defense attorney does not have. We are not supposed to discuss a case other than what is public record or procedure. If we do, and the case results in an acquittal, we can get sued. Try getting a home loan when you have a pending lawsuit for a couple of million dollars! We need to be able to pick an unbiased jury – we have to be very careful to not prejudice the jury pool.

I’m not sure that Prosecutors are afraid to allow their staffs to express their views – the problem arises when something an assistant says is attributed to the elected Prosecutor and deemed to be the position of the Office. The headline is not going to read, Assistant Prosecutor says ….it will read Prosecutor’s office says….and then the following article will – maybe – attribute the source.

And then something is taken out of context from the article and then, 50,000 shares later, the Prosecutor is trying to dig themselves out of a hole. I am responsible for what my assistants say and do – always. When an assistant gets into trouble – say gets a DUI, it makes headline news, and will be used against you in the next election. I cannot say, that isn’t what I said because someone from my staff made the statement. I have to explain that what was said is not the position of the office (me) and then I have to do something about it (discipline a staff member). Frankly, my assistants would much rather not talk to the media – and most of them do not have much free time to write articles – that’s one of the things that is so impressive about Andrew’s writings – I know how busy he is and I know how much time is invested in writing an article – I’m not sure he sleeps!

Cross: Walter Katz, Watching The Watchers

September 21, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg Cross San Jose Independent Police Auditor and former public defender, Walter Katz.

Q. You studied political science at the University of Nevada, Reno (the biggest little city in the world), where you graduated in 1989. Was the plan always to go to law school? Did you go into college with an interest in criminal law? Were there any political aspirations as well? Were you that very serious student who knew what he wanted to do with his life, or were you more focused on enjoying the freedom and the number 2 party school in Nevada?

A. I first knew that I was going to become a lawyer when I was about ten or eleven years old. My mom had an uncanny knack for getting into arguments with neighbors. This one was about a fence. I must have made some sort of observation that reminded her of her father – who was a lawyer in Switzerland – and that sparked my interest. Plus, the town where I spent the early part of my upbringing was a pretty well-off bedroom community and the rich kids all seemed to have dads who were doctors or lawyers. I desperately wanted to fit in, so “lawyer” made the most sense to me.

From fifth grade on, I took a pretty as dull as khaki chinos path to law school: high school debate team, college debate team, Boys State, political science major and I did a semester-long internship with the Governor of Nevada.

Along the way there were a couple other opportunities. I had a pretty keen interest in applying to West Point, but then in my senior year our debate topic was about U.S. covert military action in Central America.  This was the early eighties, so human rights conditions were awful in places like Guatemala and El Salvador as a direct result of our manipulations and interventions.  I didn’t know very much about the dark side of American foreign policy until then, and I still hold this up as one of the great benefits of competitive debate: learning hard-edged truths in a way one never can in a classroom.

I had a couple jobs that influenced me, too. I was a work-study stagehand at the campus concert venue. I worked backstage for the launch of the U.S. tour of a really huge British artist. Tours liked to start in Reno, because if you sucked, absolutely no one who mattered in the music biz would know about it. Backstage, the lawyer with the Halliburton briefcase was the only guy or woman from the tour who was not blitzed out on drugs.  I thought, that is the guy I would want to be… in control but seemingly the guy up front.

The other job was at a big truck stop and casino that is still around. The general manager sat down with me once, while I was in the coffee shop eating my lunch, when he asked what I was thinking of doing after graduating from college. The answer was I was not going to become a truck stop manager. Having said that, I would have avoided thousands of dollars of law school loans and today I’d be driving an F-350 daily and everyone would call me Walt or Slim.

I went through those years with no interest in criminal law. I had an upbringing with a pretty global perspective since my adopted parents were from Europe, so I wanted to do something international… and that sounds precisely as vague as my plan.

Q. You graduated from McGeorge School of Law at the University of the Pacific in 1992. Was there a reason why you stayed on the left coast? Did anything happen in law school to push you toward crim law? Were there other practice areas that interested you? Did you consider going the law firm route, maybe even Biglaw, coming out of law school? What about becoming a prosecutor?

A. Yeah, family kept me on the West Coast. I won’t go into it here, but our family went through a couple of heartbreaking tragedies in the mid-Eighties. When it was all said and done, it was just my mom and me. I had a half scholarship to George Washington Law that I turned down so I could stay close to home and keep an eye on her. (At this point I could turn this whole interview into a maudlin Dave Eggers rip-off… but I won’t.)

Then the recession happened. I found myself in my second-year apartment staring at an empty wall as my Top Ramen slowly soaked up every last molecule of water in the bowl. (No seriously, I said I am not writing crappy early 2000s existentialism) Actually, the 1990 recession triggered by the savings and loan crisis (Hello de-regulation!) seriously %#$^#! a lot of career goals at second-tier law schools. Where just two years earlier, multiple offers for second year summer clerkships were common, everything dried up.

I was disabused of my dreams of becoming part of a firm with international exposure. I wasn’t even getting interviews. My self-esteem was at rock bottom. But at the time, I was starting moot court and my debate background was really paying off. I was having an amazing time and moot court absolutely saved me as I realized that I had to be a litigator. I had two job interviews – one with the Alameda County DA and one with the San Diego Public Defender and then…

Crim Pro happened. Seriously, how many creative ways could Chief Justice Burger and company twist constitutional logic into an unrecognizable mess? And here is the passage that changed my life:

I hope it will be a matter of concern to my colleagues that the police surveillance methods they would sanction were among those described forty years ago in George Orwell’s dread vision of life in the 1980’s:

‘The black-mustachio’d face gazed down from every commanding corner. There was one on the house front immediately opposite. BIG BROTHER IS WATCHING YOU, the caption said. . . . In the far distance, a helicopter skimmed down between the roofs, hovered for an instant like a bluebottle, and darted away again with a curving flight. It was the Police Patrol, snooping into people’s windows.’

Orwell, Nineteen Eighty-Four (1949)

Who can read this passage without a shudder, and without the instinctive reaction that it depicts life in some country other than ours? I respectfully dissent.

That was Justice Brennan in Florida v. Riley. I was already enamored with Brennan and, of course, that grand lion of justice, Thurgood Marshall. That passage from Nineteen Eighty-Four in that autumn of 1990, as I had an offer from a public defender and a district attorney on my desk, shaped my path more directly than any other moment I had in law school. I had no doubt what side I was on and I could not have been happier with the choice I made.

Q. You went to the San Diego County Public Defenders office straight out of law school. Why there? Were you dedicated to the cause of criminal defense, or did you just want to grab as much court experience as possible? What kinds of cases did you do? And inevitable first jury trial question, so were you brilliant, a disaster or scared to death? What did you learn from that first trial?

A. The San Diego County Public Defender was a relatively new office with a sterling training program. We were a class of thirteen from law schools across the country. If you didn’t believe in the cause of defending the indigent, you didn’t fit in. A couple guys had the I-could-swing-as-a-prosecutor-too vibe, and they were definitely made to feel like they didn’t belong. We were young, idealistic, drank a lot after hours and wanted to be in court or the arraignment tank as often as possible. It was the kind of great time that you knew could only last a moment.

In San Diego us baby PDs only did misdemeanor trial work and felony arraignments in downtown San Diego. Then we got shipped out to a branch for more independent trial work before returning to felony training.

I lost count how many cases I tried but it was the whole misdemeanor gamut with a steady stream of DUIs and domestic violence. I was happy to say that I got far more acquittals than convictions, but then misdemeanor-land can be a deceptive mirage if you get deluded that felonies will be just as easy.

My first trial started the day after I got sworn into the bar. A broke health club owner was being charged with making a false claim in a promotion. It was a ridiculous waste of money… especially considering the disclaimer in small print that disclosed exactly what the poor guy was accused of hiding (something to do with cleaning fees on top of the membership fee.) Anyway, I got the flyer blown up and put it on an easel and all I did in opening was read the disclaimer. I could hear the poor city attorney behind me rifling through her binder and realizing her fatal flaw… she allowed a case to be handed off to her without knowing all the facts. (Be sure to watch Al Pacino in “Justice for All” to see how badly that can go.) To her discredit she didn’t dismiss the case right then and there and the jury came back not guilty in twenty minutes. My first verdict was my fastest ever.

Q. After doing your tour at the PD’s office, then a tour with the Alternate Defender, you shifted away from the courtroom into the Los Angeles Office of Independent Review, responsible for oversight of the Los Angeles County Sheriff’s Department. Why? What caused you to leave the trenches for oversight? Did you feel that you could do more to help than with your representation of individual defendants? Did you have enough of the frustration of the courtroom? Were you more policy wonk than trial lawyer? Did you miss the action in the well?

A. I was at the Alternate Public Defender in LA for fifteen years. I did somewhere around seventy-five trials, and it feels like half of them were life-exposure cases. Why did I leave? Three things. A great mentor told me early in my career that every lawyer only has so many trials inside of him or her. I was starting to believe that and I didn’t want to drop dead of a heart attack in the middle of cross-examination. I lived and breathed trials, to the detriment of my health and family.

Second, it was my goal to get through my career with none of my clients going to death row. I had had three potential death penalty clients and in each of them we were able to persuade the D.A. to not seek death (and in one case to dismiss all together). At some point this streak would run out and I was too scared to want to be there when it happened.

Third, I was having lunch at my desk one day while I had three open murder cases pending. I suddenly realized that all three of my clients were nineteen and that no matter how old I got they would always be nineteen. At that moment I knew it was time to get out if I could.

In the early 2000s, the LAPD was rocked by the Rampart CRASH scandal. Basically a group of dirty cops were stealing drugs and money, planting drugs, making false arrests and even shot and paralyzed a guy, and were getting away with it until they weren’t. One of the cops said to the DA, “I will tell you everything about everyone if you cut me a deal.” I forget the details of the deal but the DA sat him down for days and handed him police reports and he’d lay out one CRASH cop after another as being dirty.

My office was sitting on 119 convictions (almost all of them plea bargains) that were potentially tainted. So, my APD boss created a task force to review all these cases and put me on it. That started a deep interest in me in police accountability. What became clear is that some cases were horrible miscarriages of justice, but also that some of the allegations by the cop throwing the other officers under the bus were fabrications. I learned a lot about discernment during that stint.

I found oversight work extremely satisfying. I had grown tired of the one case at a time, where the impacts were limited perhaps to only that one client who may be thinking of writing heartfelt thank you letters for the next ten years or of shanking you. Being able to take my technical knowledge, legal skills and persuasive abilities and move the needle on important policies is very satisfying.

Q. You had eighteen years of experience with real people, real defendants and their families, before turning to law enforcement oversight. Was that helpful or a hindrance? Did you find yourself too inclined toward the defense view of law enforcement operations? Were you accepted as a fair voice, or as a partisan? Did you have to reinvent your perspective to keep a more open mind to the law enforcement view of the world? Was it hard to leave behind the experiences you gained representing defendants?

A. And eighteen years of experience reading police reports, cross examining cops, tearing forensic evidence apart and digging into complaint files and lawsuits. So, yeah, it was very helpful.  But here is the thing. That was a different hat I was wearing. As a defense lawyer I was an advocate for my client and I took the duty to zealously represent him or her very seriously. Here, I am essentially an advocate for process. Procedural justice is not about any one individual. It is saying that when an officer uses force or is suspected of wrongdoing that a fair and impartial system will develop the evidence and analyze it and apply to policy fairly and objectively. That is why I rarely, if ever, comment on an individual officer involved shooting on social media.  I’m not there. Without seeing the evidence I don’t know squat.

There are 18,000 police agencies in the U.S. Each of those departments is potentially moments away from a crisis. It could be a sex scandal, or a horrible shooting of a kid with a toy gun or a pattern of discriminatory conduct. We’d get hired by city managers or city councils or a chief to dig into department policies, training and practices and take a look into past incidents to get an idea of why the department functions the way it does.  Then we would come up with a set of recommended corrective actions.

This is not dissimilar to what the DOJ does with its COPS office, Collaborative Reform Initiatives. What many people do not understand is that police departments come with a range of insight and understanding of what works and what does not work. A lot depends on both the leadership and the culture, which took years to develop. Some departments actively seek out best practices, while others are very comfortable with a “this is how we’ve always done it” mentality.

There are only about 200 oversight offices in the United States and quite a few of them do not serve a robust policy analysis function. One of the ways that we help entities is helping them think of ways to develop an oversight model in their community that works best for their needs. There is a growing need for that kind of consulting service, as I expect civilian oversight to experience strong growth over the next several years.

Q. You moved to the LA Office of Inspector General, where you oversaw the “functions, procedures and operations” of the Sheriff’s Department. What does a criminal defense lawyer know about police operations? How did you come to learn proper practices? Were you determining whether they complied with the policies in force, or were you involved in formulating policies and practices? Did you find the cops to be willing to adapt, or resistant to change? Did policies really matter to the cops?

A. Both at OIR and at the Inspector General (OIG), we did oversight work but of somewhat different flavors. At OIR we were case specific. We monitored and reviewed deputy-involved shootings, significant uses of force, internal investigations and, to a certain degree, complaints. We did what is called “real time monitoring,” where the Sheriff’s staff got immediate feedback on the quality of the investigation and leadership’s findings and any recommended discipline.

Our focus was on the objectivity, fairness and thoroughness of the process. From that work, we would identify trends and issues which required a deeper probe that would lead to policy recommendations to improve their procedures and practices. Some of it may seem pretty dry at first glance, but with a closer look has significant ramifications… such as whether a deputy should or should not be allowed to see camera footage before providing a formal statement after a use-of-force incident. At OIG our work was more systemic and did not focus as much on individual incidents.

Hopefully, a criminal defense attorney will learn a lot about police operations. Look at what Sun Tzu says in the Art of War, “To know your Enemy, you must become your Enemy.” Today, “enemy” is a strong word, so I would choose “adversary.” I never considered the police my enemy, even in the most heated of cases. My goal as a trial lawyer was to understand the prosecutor, the involved detectives and the jury as well as possible. There is no sense in trying a narcotics wiretap case without knowing the ins and outs of how wiretaps are managed and vehicle surveillance is set up. By not being a $#@), I got a lot of information out of officers on how they do things that may not even be relevant to this case but another case I am working on. The same philosophy applies to oversight…. always be learning.

Q. You are now the Independent Police Auditor for San Jose. What’s your mission? San Jose police were not without their issues, not the least of which involved use of force and racial bias. Are these problems intractable? Are police capable of changing their ways, putting aside their implicit prejudice and desire for their own safety? Is this a training issue, a transparency problem? From your seat, are the problems as bad and culturally ingrained as they appear from the outside?

A. The mission of the Office of the Independent Police Auditor is four-fold: (1) we provide independent oversight of the San Jose Police Department complaint process; (2) conduct outreach about our services, which includes our office as an alternative location for members of the community to make complaints; (3) we make policy recommendations to the SJPD and (4) we monitor officer-involved shooting reviews.

Like many police departments, the SJPD has faced controversy over its practices, such as what appears to be a racial disparity in traffic stops and how the stops are conducted. San Jose is a very diverse city, about 1/3 white, 1/3 Hispanic and about 1/3 Asian. Only 3% of the population is African American. Statistically there has been a real disparity in stops and detentions. Researchers are right now taking a deeper look at the reasons for the disparities.

Different communities have different ideas of what policing should look like. San Jose has a significant homeless population, and many of them are mentally ill. In 2015, there were twelve officer-involved shootings and in four, the involved subject had a documented history of mental illness. Such challenges are not intractable. The police department has a progressive and open-minded leader at the helm who is embracing body-worn cameras, de-escalation training and implicit bias training and is rolling out crisis intervention training across the department. Those are all positive steps.

We at the Office of the IPA are working on additional initiatives which we believe improve accountability and transparency. For example, in 2014 we recommended an explicit ban on the use of chokeholds. That policy was recently put in place. In our last year-end report, we recommended that the department resume publishing annual use-of-force statistics and we were pleased to see that the City Council embraced our recommendation and directed follow-through in that critical transparency issue.

When people ask are “problems as bad” as they appear, I urge a degree of caution. Thoughtful oversight and policy work is not about broad brushes and grand proclamations, but the taking of incremental steps towards an objective where a police department’s officers act in accord with constitutional and community expectations. We want to see officers act courteously, to respect the right to be free of unreasonable stops and searches and to not use force unless it is necessary (more on that below).

Moreover, we expect that a police department has the robust systems in place to detect officers whose conduct does fall below expectations and to take decisive action when misconduct is found. The legitimacy of a police department rests on the twin pillars of accountability and transparency. It is my job to shine a spotlight on where the department is doing the right thing and where it needs to be doing a better job.

Q. One of the big issues you’ve addressed is the use of deadly force, the latitude given cops to kill by Graham v. Connor.  Can that be fixed internally, by policies limiting the use of force, the rules of engagement? Can anything overcome the First Rule of Policing, to make it home for dinner? Has your exposure to the police perspective made the problem of crafting policies to preserve everyone’s life harder? Are cop too quick to scare, too quick to kill preemptively? Does the law need to change to end cops’ killing in anticipation of a potential threat?

A. This question could fill a whole volume. I have written about independent investigations of officer-related deaths elsewhere and I am a big believer that such investigations need to be more transparent. Over the years I have been to dozens of scenes where an officer or deputy used deadly force. Some of those incidents were obviously well-justified and, conversely, a few were real head-scratchers – I am being as circumspect as I can be here – for why deadly force was found to be reasonable.

Three situations are the most troubling to me: (1) where the individual is not armed with a firearm and in an acute state of mental illness; (2) where an officer shoots at a vehicle because he thinks it is being used as a weapon; and (3) the largely unexplored phenomenon where a foot pursuit ends with a deadly use of force where the individual is right at what I call “the point of escape,” and for an unfathomable reason allegedly slows or turns and reaches for his waistband — even when unarmed!

All police-related deaths demand the closest scrutiny, but those are three areas where deaths are too frequent and the justification cannot simply be chalked up to, “well the officer feared for his life, so let’s move on.” It is absolutely necessary to ask the next natural question, “was it reasonable that he feared for his life.”  Until recently, I did not see prosecutors or law enforcement executives really diving into that second question too deeply because, I believe, it could frequently lead to uncomfortable answers. This is why video is so critical.

In 2015, I believe that six officers across the nation were criminally charged for their conduct during an officer-involved shooting. All six of those incidents were captured, at least in part, on video. That is why we need both body camera video and in-car video made as available as possible to all police departments. The challenge is dealing with the massive recurring costs involved in licensing and data storage that the body camera companies are charging.

As for the Graham standard… I am torn. The necessity requirement for deadly force in Article 2 of the European Convention on Human Rights (ECHR) is very attractive, but in the United States, we have the reality of 300 million firearms in circulation. Policing is dangerous work and I don’t have a lot of patience for those who trot out statistics that policing is safer than it has ever been. There are too many variables such as improved body armor, trauma care, communications, and tactics to make a simple comparison. I urge those who are critical of police conduct (and I am a critic) to do plenty of ride-alongs to get a feel for what a traffic stop really feels like when you have no idea who may be inside that car, or to respond to a volatile domestic violence incident in a confined space.

Having said that, I am very uncomfortable with pre-emptive deadly force. There are certain trainers out there who preach the warrior cop, “going home tonight is the only thing that matters” mentality. Officer safety is critical, but calibrating force standards to respect human life and safety is a real challenge because we are in a country that has such a propensity for violence.

Q. Having left the law side, where the police were the adversary, and joining the policy and oversight side, where you need to work with law enforcement to accomplish goals, do you believe that training and police are sufficient to address the pervasive mistrust between police and citizens? Do cops get why people don’t show them the respect they believe they deserve? Are cops willing to do their part to earn people’s trust? Is there really a need to train a cop to not assume people, too often black and Hispanic, are an inherent threat to their safety? Do they really need to be trained to treat people like human beings?

A. Again, broad brushes are tempting but not necessarily helpful. There is no doubt that there is a legitimacy crisis occurring right now. The police for the most part have the monopoly on the legitimate use of violence, so the burden is on them to prove their legitimacy. When an officer shoots a kid 16 times in Chicago, and he and his partners lie about him charging the officer with a knife, it’s hard to be sympathetic. When an officer shoots a black man running away from the officer in the back and then moves his electronic control device next to the dying man to fabricate the fiction of a threat, trust is absolutely destroyed.

Let’s assume that these officers were outliers. Then why, specifically in the Chicago example, were other officers so willing to lie about what is now charged as a murder? Police unions are so willing to chastise a football player for kneeling during the national anthem, but how often does a police union turn their back on an officer who obviously and callously violated the most basic human right of life?

The institution of policing is on the clock. It is on them to embrace cameras and oversight. It is on them to prove that de-escalation training, procedural justice training, crisis intervention training and whatever other training, is not window dressing. That will require the establishment of benchmarks and constant measurement to show that they are committed to change. Once I see departments treat the violation of constitutional rights and lying as seriously as they treat stealing and cheating on promotion exams, I will know we have turned the corner.

Cross: Seth Stoughton, Cop Turned Prawf

September 14, 2016 (Fault Lines) — Ed. Note:  Scott Greenfield and David Meyer-Lindenberg cross assistant professor at the University of South Carolina Law School, Seth Stoughton, who previously served as a police officer with the Tallahassee Police Department.*

Q. In 2000, you were two years into a bachelor’s in literature at Florida State University when, suddenly, you decided to take a leave of absence and become a cop. What happened? What led you to set your studies aside and dive headfirst into the gritty world of policing? Going in, were you at all familiar with the demands of the job? You stayed in Tallahassee, joining the local police force. We’re talking about north Florida here, so it’s a little hard to believe you made that decision voluntarily. Did you? And did you ever think to yourself, “I should have stayed in school?”

A. I was tricked! Okay, that’s a little dramatic, really, but it’s not really much of a story.  I was twenty years old, going to college with the intention of becoming a high school English teacher, and working as an instructor at a martial arts school at the time.  One of my friends at the martial arts school was a cop, and I had some other friends who were cops and involved in the local martial arts scene.  I’m not sure how it came up originally, but the guy who trained with me encouraged me to apply for a position as a reservist, a part-time officer.  The pay was really good for part-time work–about $15-16 dollars, if I remember right (the equivalent of $21-22 today)—and, frankly, the idea of being a cop was appealing.

I would need to take a semester off of to attend the academy, but otherwise there were no set time commitments so I could work around my school schedule.  The more we talked about it, the more interested I was.  I started by doing some ride-alongs and by volunteering with the department (by helping in the Crime Prevention Unit and the Sex Crimes Unit), then I eventually turned in an application with the city police department.  That was probably October of 2000.  (At the same time, I had to apply separately to attend the police academy; if I had already been hired by an agency they would have “sponsored me” through the academy, but since I was still an applicant I had to apply to, and pay for, the academy myself.)

I made it through the application processes, which involved, among other things, a psychological exam, the longest and possibly stupidest multiple choice test I’ve ever taken (the MMPI and CPI are psychological “inventories” that have a combined total of something like 1,100 “Yes/No” questions – my favorite was “I am fascinated by fire.”), and eventually an “Oral Board” with the police chief and two deputy chiefs.  (An oral board is an interview; this is one of many examples of how policing has its own terminology.)  During the interview, one of the chiefs explained that they had some open full-time positions that they had funding to fill.  (That wasn’t always the case – given municipal budgets, the agency often had some vacancies but no funding to fill them.)  I was asked if I would consider switching my application from a part-time reservist to a full-time officer.  I remember saying that I really wanted to finish my degree—remember, I was in the middle of the Fall semester of my Junior year at this point—and being told that a number of officers had finished their degree while working full time.  Had I been the skeptical investigator or trained lawyer I would later become, I might have asked, “What exactly is that number?” but I wasn’t, so I didn’t.  (As it turns out, it wasn’t a very large number – among my group of friends, only one finished her degree while working as a cop, and it took her the same ten years that it eventually took me.)

During the application process, and probably for the first two years of being a cop, I never thought I should have stayed in school.  I was excited about my career; I still intended to finish my degree, but it wasn’t an imperative – and why would it have been?  I was making decent money, had good friends, and doing something important.  It was a good department, one that prided itself on professionalism and where most of the supervisors I had (early on, at least) were both highly competent and good at supervising.  After going through the police academy (January to early June, if I recall correctly) and making it through field training (which I “graduated” from in November), I was slotted onto a day shift squad where my supervisor let me take an hour out of my shift (calls for service permitting) to go to class so long as I made up the hour by staying late on class days.

I was also increasingly dissatisfied with college; I had switched majors so I was dual-majoring in English and Criminology, and I was not impressed by the criminology folks.  They had, I thought at the time, a very superficial and ill-informed understanding of policing, largely because they hadn’t been there.  This was, and is, a common view in law enforcement; outsiders, even outsiders who “study” policing from the safe confines of their offices, just don’t understand the job.

Q. You spent five years at the Tallahassee PD, where you helped found the Special Response Team. Newcomers to the police reform movement tend to assume the “warrior cop” development, publicized by people like the Washington Post’s Radley Balko, is a recent phenomenon. Is it? To what extent did the department already reflect the “warrior cop” mentality? You joined half a year before 9/11; did that tragedy change the department’s outlook, and if so, in what way? Were you a warrior cop? What kind of wolves were you called on to fight?

A. The extent to which my agency was or was not “warrior-like” is a surprisingly difficult question for me to answer.  When you’re in the middle of something, it’s difficult to identify some of the characteristics because you don’t really have a baseline for comparison.  So I’m looking back and trying to use what I know now to describe the environment I was in then, but my memories and perceptions of that environment are colored by my expectations at the time.  So with that caveat in mind, I’ll do my best to answer the questions.

No, the emphasis on what Radley Balko and others, including me, have called a “warrior” mentality isn’t particularly new.  It certainly existed prior to 9/11; when I went through the police academy (January to June of 2001), we watched videos of officers being beaten or killed, we were lectured on the dangers of complacency, and we went through a number of drills designed to demonstrate how quickly we could be shot or stabbed.

There was similar messaging at the department; one sergeant, I remember, regularly used our check-on time (the 15- or 20-minute briefing at the beginning of a shift) to provide safety tips. For example: unholster your gun and put it on your lap when you’re parked and doing paperwork because it’s difficult to draw while you’re sitting down, or demonstrative drills, seeing whether you can shoot someone who is facing away from you before they can turn and shoot you, or whether you can shoot someone who is holding a gun down by their side before they can raise it and shoot you.

But with that said, it wasn’t always like that.  The Tallahassee Police Department prided itself on its professionalism and commitment to community policing, and that came across, too.  I remember being part of a group of officers that wanted to serve an arrest warrant; we worked at night (4pm-2am), so we wanted to go make the arrest late one evening, around 11 or midnight.  The lieutenant vetoed it.  He told us that the agency didn’t need to give the impression that we were on a witch hunt.  I didn’t fully understand that at the time; I remember being frustrated because we would certainly have been acting lawfully had we knocked on the door, and even if we had kicked in the door, to get the suspect regardless of what time of day it was.  Looking back, though, he was absolutely right; banging on doors and rounding people up at night wasn’t the kind of department that the community or our supervisors wanted us to be.

Here’s another example: a close friend of mine pulled over a motorist for speeding.  The driver said she was rushing home because her period was starting and she didn’t have any tampons or pads with her.  We had been trained to make a decision about whether or not to issue a ticket even before we approached the vehicle we stopped. That way, we knew the ticket wasn’t based on the driver’s behavior toward us, but rather on the underlying violation.  The officer who stopped her was incredibly ethical and conscientious, a damn good cop and one I was proud to work with, probably my best friend at the agency, and only in rare circumstances would either one of us issue a ticket when we had decided that a warning was more appropriate or vice versa.  Because the decision had been made, and because there was no lawful justification for speeding (no medical emergency or the like), the officer issued the ticket.  The motorist complained, and our sergeant tore up the ticket.  He explained that it was unnecessarily humiliating.  My friend and I didn’t agree; there had been a violation, after all, but looking back, the sergeant was doing exactly what I now describe as Guardian policing: protecting civilians from unnecessary indignity and harm.  Although I didn’t think about it in these terms, I had a number of supervisors, senior officers and peers who modeled that concept – without them, and without having worked with them and seen firsthand how it facilitates good policing, I don’t think I would hold the opinions that I do today.

Was I a warrior cop?  Sometimes, sure; sometimes the situation demands it.  Those of us who write about Warrior and Guardian policing are often frustrated when people think of it as an either/or.  It isn’t.  Oh, sure, in any given situation, an officer can act more Warrior-like or more Guardian-like, but it’s more appropriate to think of the Warrior and Guardian concepts as opposite ends of a spectrum that tries to describe how officers conceive their role in the community more generally.  Generally, then, I think the officers I most respected, worked most closely with, and tried to pattern myself after had a more Guardian-like approach to policing.  There were times to play hardball, but that wasn’t the default.

It wasn’t just for philosophical reasons—most cops don’t think deeply about the nature of the job or the underlying principles that motivate them—it was practical; it made them more effective officers.  And it made them safer.  I remember one officer, who had been a deputy sheriff in a rural agency before coming to the city police department, who came up to me after I had spoken rudely to a civilian about something.  He said, “You need to watch the way that you talk to people.  If you’re getting your ass kicked one day, you want people to step in and stop it, not join in the kicking.”

My agency also highly emphasized ethics.  That meant doing things the right way, but it also meant not protecting officers who did things the wrong way.  One night, the officer I was close friends with and I were working a traffic detail during a Florida Agricultural & Mechanical University homecoming – a huge event that brought in tens of thousands of people from out of town and resulted in our days off being cancelled and some very long hours (16- or 18-hour days weren’t uncommon).  It was maybe 3 or 4 am and a car drove up and stopped at the intersection we were at, blaring music.  I shouted something to the effect of, “Turn that fucking music down!” in part because, as I remember, I thought the car’s windows were up and they wouldn’t hear me over the music anyway.  Well, they did.  The light changed and they drove off, and I looked at my friend (rather sheepishly, because I was ashamed of my unprofessional outburst), who said, “If that goes to IA [Internal Affairs], it’s your ass.”  In other words, my coworker wasn’t going to cover up my misconduct; implicit in that was condemnation of what I had done.  Nothing happened—no one complained, I presume—so it never became an issue, but that’s an example of how we held each other accountable.  Now, that might have only happened because I was close friends with the other officer, but I can think of other examples where peers corrected each other; that’s what we were expected to do.

Not everyone lived up to that, though, and I probably have as many bad examples as I do good examples.  I was working an off-duty gig at a nightclub one evening (shameless plug: for more on “moonlighting,” take a look at my recent research on the topic) when another officer ejected someone from the property.  The ejected patron was cussing and yelling, shooting glares back over his shoulder as he was walked off the property, but the continued disrespect bothered the officer I was with.  The other officer yelled, “Turn around one more time and I’ll arrest you for trespassing and lie like a motherfucker on the stand to get you convicted.”  Now, I’m not saying the officer would have made the arrest or lied, but shouting that—at the crowded front entrance of a busy nightclub parking lot—couldn’t possibly leave anyone with a positive image of the police.  As that anecdote suggests, some of the officers I worked with did not react well when they weren’t afforded the level of respect or deference that they felt they were entitled to.

I’m not sure how to subjectively answer the question of whether 9/11 changed things for me or at my agency – I was in the final phases of Field Training at that point, so I had very little experience policing in a pre-9/11 world.

Ah, wolves.  The idea of cops as sheepdogs, criminals as wolves, and the public as sheep has become incredibly popular, but as soon as you start to think about it, it’s really not intellectually or conceptually satisfying.  First, it’s condescending to the public; identifying civilians as sheep isn’t supposed to be praise.  I’m sure some readers will argue that it’s supposed to be descriptive, not pejorative, but it doesn’t take much introspection to realize how judgmental that description is.  Second, people aren’t sheepdogs or wolves or sheep – everyone is capable of, and has been, all of those things at some point.  Classifying groups of people along those lines falsely suggests that there is some permanence in human temperament; once someone is a wolf, they’re always a wolf – it’s in their nature.  That’s bullshit.

But putting that aside, as a patrol officer, I dealt with all kinds of people and all kinds of crime.  Murder, suicide, robbery, battery, assault, burglary, arson, various kinds of theft, drugs, guns, DUI, all the way down to parking in handicapped spots (a pet peeve of mine) and parking faced the wrong way on the street (a pet peeve of one of my sergeants).  Felonies, misdemeanors, traffic violations, pedestrian violations – did you know that Florida Statute § 316.130(12) requires someone who is crossing the street not at a crosswalk to cross at a 90 degree angle to the curb or by the shortest route?—I did it all.  Felony stops, pretextual stops, and doughnut stops (I have a stereotypical weakness for Krispy Kreme – if I had policed in the era of cellphone cameras, I’m sure there would be pictures of my squad car going through the Krispy Kreme drive-thru).

Doughnuts aside, I was pretty active.  At some point, I estimated making something like 300 arrests over my five years as a cop.  I chased people.  I used force.  In most interactions, though, I don’t think I was very Warrior-like, and I never felt like I needed to be.  First and foremost because a sergeant and SWAT team member that I had tremendous respect for told me even before I started as a cop to leave my ego at home.  “When people get mad at you or cuss at you,” he said, “They’re aiming it at the uniform, not you.  So let all that shit roll off your back and not bother you.”  I took that to heart, and I think it helped.  I could afford to be patient with someone because they weren’t disrespecting me, they were expressing frustration about how my job affected them.  Hell, I could sympathize with that – my colleagues and I expressed frustration about the job all the time!

Second, because I had a pretty long history of martial arts.  I’m not saying I could ninja-kick and judo-chop everybody into submission, but I was familiar with getting punched and kicked, with groundfighting, and all that.  It’s not that I wasn’t afraid of fighting, because I was (a fight on the street isn’t a sparring match), but fighting wasn’t so far outside of my comfort zone that I started to panic at the possibility of it.  The third reason has to do with verbal communication skills – I took great pride in my ability to talk people into handcuffs.  I’m not terribly imposing physically—I stand 5’8” and weigh all of 150 lbs, which was probably closer to 140 back in the day—so using what my parents would call a gift for gab was both safer and more satisfying that going head to head with someone.

One night, another officer and I were dealing with a mentally disturbed woman.  I forget the context, whether we were taking her in for psychological evaluation or arresting her, but I know it involved handcuffs and she was not down with that.  After twenty minutes or so of chatting, she turned around, put her hands behind her back, and we were good to go.  My sergeant arrived on scene shortly after, and I remember feeling really good when the other officer said something like, “Sarge, I’ve never been so sure we were going to have to fight somebody, but we didn’t need to lay a finger on her.”

Q. You’re an educated man; even before you had a degree, you put your skills to good use by teaching your fellow cops how to write better reports. Many police departments put a premium on educated officers by, for example, offering extra pay to cops with degrees. There’s evidence to suggest educated cops are less likely to rack up complaints and disciplinary issues, but they’re also less likely to express satisfaction with the job. Did policing bore you at times? And while promoting education is a good strategy if you want to minimize your department’s exposure, is it helpful if the goal is to reform the PD’s culture? Could an academic background or a more deliberative mindset undermine a cop’s ability to take pride in his job, resort to “righteous force” when it’s needed?

A. I definitely got bored, but I think everyone does.  Most people are drawn to police work in part because of the appeal of always doing something different, not having a routine.  But the sad fact is that police work is routine.  Although the traffic stops, alarm calls, and various other calls for service differ in their details, most of them blend together in an unremarkable blur.  It’s often said that officers are bored 95% of the time and terrified 5% of the time – the numbers may be off, but the concept is more or less true.

And those rare times of excitement—chasing a fleeing suspect or kicking down a door or wrestling with someone—kind of make the rest of the job—writing up a fender bender or checking a business with a long history of false alarms or arresting another juvenile shoplifter—that much more boring.  I don’t think level of education or level of intelligence matter too much there – I can’t think of any officers (and I knew some fiercely intelligent cops and some frighteningly stupid cops) who weren’t bored by some parts of the job.  The trick is for supervisors and executives to manage that boredom.  When I started at the agency, the chief tried pretty hard to transfer folks around when they wanted to try something different: from patrol to Criminal Investigations (which was a lateral transfer, not a promotion at my agency).  Later in my time there, a shortage of patrol officers prevented the agency from doing that – it needed to keep manpower on the streets.  Honestly, had I been able to work in an investigative capacity at my agency, we probably wouldn’t be having this discussion – I took an investigative job with the state because it was experience I couldn’t get with the city.

Okay, and now you ask the question about officer education and police culture.  Officers are educated; the real question is what they’re educated about.  Officers may not learn much about the rules of evidence, for example, but they damn sure know the intricacies of Fourth Amendment law – they might not know many case names or the underlying justifications for the rules, but they know the rules better than some lawyers do.  I think officers at many agencies need a different education, one that informs them about the history of policing and their role in carrying on what is both a very honorable and a very oppressive tradition.  But even more than education, I’d like to see officers adopt an introspective approach, to think about the nature of their jobs and not just about the tools that let them go about whatever they happen to contemplate their jobs as being.  Officers are trained in a variety of technical skills—how to do things—but they would benefit from more exposure to adaptive problem-solving techniques—how to think about things.

Policing is often considered a profession, but it typically looks more like a trade.  I was chatting with Greg Connor—a former cop, college professor, and author of one of the first (if not the first) Use of Force continua—and he observed that officers learn the basics in the same way an apprentice does, both in trade school (the academy) and from a set of master tradesmen (Field Training Officers).  One of the primary factors that separate a professional from a craftsman is more formalized education and a deeper understanding of the theories and concepts that underlie their practice – thinking about the system they’re in and not just the individual role that they play.  In many ways, I think law enforcement would benefit from having people at all levels, including rank-and-file officers, who think systemically and are comfortable rethinking and challenging “accepted wisdom.”

Q. For decades, the Supreme Court has ascribed incredible crime-fighting powers to police (and their dogs). “Training and experience” may be a cliché to police reformers, but it’s a cliché that allows cops to seize people and their possessions, and all but assures deference from the courts. Combine that with a series of Supreme Court cases that eroded Fourth Amendment protections, so as to not unduly burden cops as they do their jobs, and we have a legal environment that’s ripe for abuse. Isn’t it odd that these supposedly superlative crime-fighters need decisions like Heien or Strieff to do their jobs? What are we to make of the Supremes’ tendency to see cops as both superhuman and imperfect? Should we make this many constitutional allowances for the imperfection of government agents? And what about the deference to police sensibilities at the heart of Graham v. Connor? Is that a good thing?

A. There is a very interesting and disconcerting tension in the way that courts treat officers.  On the one hand, cops are viewed as skilled crime fighters such that judges are “generally obliged to accord deference and even great respect to an officer’s training and experience.”  United States v. Martin, 679 F. Supp. 723, 734 (W.D. La. 2010) (internal quotation marks omitted).  On the other hand, a variety of doctrines take a relatively forgiving approach to reviewing officers’ conclusions, from the probable cause and reasonable suspicion standards (which both allow a great deal of room for error) to rules governing officers’ mistakes of facts and law.

Further, the Supreme Court has emphasized that the Fourth Amendment is best implemented by bright-line rules in some contexts, but flexible standards in other contexts.  One example that I use to set up this tension in my Criminal Procedure classes is the distinction between the Open Fields doctrine and curtilage.  In Oliver v. United States, 466 U.S. 170 (1984), the Supreme Court held that officers could go onto private land and observe without it being considered a “search” for Fourth Amendment purposes because “[t]here is no societal interest in protecting the privacy of . . . activities . . . that occur in open fields.”  So, for example, if I have a few acres or a large yard, officers can enter my property (even climbing over fences and despite “no trespassing” signs) without it being a search.  (Note that it might still be a trespass at common law, but it isn’t regulated by the Fourth Amendment.)  The Court held that clarity was essential in this context because officers should not have to guess about the scope of their authority while they’re in the field.  So it created a clear, bright-line rule: no privacy in open fields.  But what counts as an open field?  Houses, obviously, aren’t open fields, but what about the area immediately around a house?  That’s called “curtilage,” and it gets the same amount of protection that a house gets.  So while there’s no Fourth Amendment protection for open fields, there is Fourth Amendment protection for curtilage.  That means the Court needed to distinguish between open fields and curtilage.  You’d think, given the need for clarity that it said was so important in Oliver, that it would adopt another bright-line rule.  It didn’t.  Instead, in United States v. Dunn, 480 U.S. 294 (1987), the Court identified four factors that had to be applied when trying to draw the line between curtilage and open fields: the proximity of the area to the home, whether the area is included in an enclosure surrounding the home, the nature of the uses to which the area is put, and steps taken to protect the area from observation.  The rule distinguishing curtilage from open fields is hardly a model of clarity – in fact, it’s confusing enough that, as a cop, I was taught a shorthand version of it: if the area is covered by roof (including an overhang or eaves), it’s curtilage.

The Fourth Amendment tries to balance two important interests: society’s interest in effective law enforcement and individuals’ interest in privacy and freedom from governmental intrusion.  So are judicial deference and squishy standards a good thing?  I hate to get all law professor-y, but I think the right answer is, “It depends.”  Deferential standards can be a good thing, and in at least some contexts they’re essential.  There is something to be said for training and experience – a cop looking at a series of events focuses on different things and draws different conclusions than your average person would.  In other words, if we expect police to know particular things and do a particular job (or set of jobs), then we need to trust them, to some extent, when they’re talking about things in the context of that job (or jobs).

But that can be taken to extremes in at least two ways.  The first involves officers relying on their training and experience for things that are well within the grasp of the ordinary person, where there’s no need to put on a patina of expertise.  For example, as I wrote in an article published last year:

officers have referred to their training and experience when testifying that a “‘long-necked, glass bottle’” is consistent with a container used to hold alcohol; that droopy, red eyes are a “common sign of alcohol or drug impairment”; that gunfire at 1:00 A.M. is often “associated with criminal activity”; that having a suspect kneel rather than stand “takes away most of their mobility”; and so on. These are silly examples, and intentionally so—the point is that, with the addition of a simple, formulaic phrase, completely mundane observations are draped in the robes of specialized knowledge and trained reasoning.

Seth W. Stoughton, Evidentiary Rulings as Police Reform, 69 U. Miami L. Rev. 429, 449 (2015).  The second involves officers drawing conclusions based on training and experience when that training and experience is either wrong or insufficient to support the conclusions the officers are drawing.  A great deal of police training comes in the form of verbal instruction, a formalized series of anecdotes passed along as something approaching an oral tradition.  As I wrote in that article, “[S]hared experiences and stories from more senior officers take on a patina of veracity that becomes a mechanism for carrying ‘cop knowledge‘ from the station house into the courtroom.“  The problem is twofold: some of this cop knowledge is simply wrong, and the cultural emphasis on cop knowledge makes it very difficult to establish its wrongness, let alone introduce reliable information.  Now, I’m not saying that all cop knowledge is wrong – that’s not at all the case.  But some information that has become a matter of police orthodoxy surely is, including universal behavioral indications of deception, the validity of certain interrogation practices, the accuracy of eyewitnesses, the reliability of various forensic disciplines, the near-infallibility of police canines, and so on.

In the use-of-force context, I think the Court is right to focus on what the officer objectively perceived at the time, but I think the Graham standard is wrong in one way and incomplete in another.  It’s wrong in that it describes use-of-force situations as requiring “split-second decisions” in “circumstances that are tense, uncertain and rapidly evolving.”  That absolutely can be true, but remember that force is relatively rare, and that the vast majority of the time, force is used to take someone into custody rather than to defend the officers (or others).  That is, most of the time, officers are using force when their safety isn’t threatened – they’re using force when a governmental interest (such as the interest in apprehending a suspect) is at risk.  As I wrote in a different article:

Considering that the vast majority of use-of-force incidents involve the use of aggressive force [by which I mean non-defensive force] by officers—typified by tactical preparation, a degree of premeditation, low levels of resistance, low levels of force, and a low probability of injury—the Court’s description of ‘split-second judgments’ is simply wrong almost all the time.

Seth W. Stoughton, Policing Facts, 88 Tulane L. Rev. 847 (2014).  James Fyfe, a lieutenant at the NYPD and criminologist whose work was instrumental to the “tactical revolution” of the 1970s, once described the Supreme Court’s description as the “split-second fallacy.”

The reason I think Graham is incomplete is because it is often used to focus narrowly on the exact moment at which force is used, rather than more broadly by taking into consideration officers’ decisions and actions that led up to the use of force.  Brandon Garrett at the University of Virginia and I have a paper coming out on this topic (here’s a draft), but here’s an illustration about what I mean: imagine an officer who shoots someone who is within arms’ reach and aggressively waving a knife around.  Looks like a perfectly reasonable use of force, right?  But what if I told you that the person waving the knife around was a paraplegic in an electronic wheelchair that had broken down in the middle of a large, abandoned parking lot, and that there was no one around except for a handful of officers trying to deal with the situation.  If we take a broader look at the incident and judge how one of those officers walked up within stabbing distance and then shot the suspect to avoid being stabbed, we almost certainly come to a much more difficult conclusion that we do under the narrow approach.

By not taking into consideration police tactics, the Court’s “objectively reasonable” standard lacks substance – it provides no meaningful guidance.  Imagine a boxer who goes for an exhibition match in a foreign country.  He asks about the rules and is told, “Oh, just be objectively reasonable.”  That’s not helpful.  Now, I’m sure there will be readers who object that using force on the street isn’t like boxing – there are no rules on the street.  Bullshit.  There are absolutely rules on the street – that’s why officers can’t shoot passive protestors in the knees.  We have rules during actual war, for crying out loud, so of course there are rules for how officers use force.  The problem is that identifying those rules is difficult, in part because the Court’s “objectively reasonable” standard doesn’t provide much incentive for fleshing them out in a constitutional arena.


Q. The DoD’s 1033 program, which provides surplus military equipment to police departments, plays a major role in the militarization of police. Is it a symptom or a cause? Do cops in BearCats automatically take the warrior thing too far? To what extent can warrior cop culture be laid at the feet of the feds and their permanent Wars on Things? Can these tools of war be taken away now, or is it too late?

A. The use of BearCats, or Mine Resistant Ambush Protected armored vehicles, or rifles, or dynamic entry techniques absolutely does not automatically take policing too far.  Militarized equipment, training, and techniques are an important part of modern policing.  But as important as that part is, it’s very small.  Thankfully, the hostage situations, active shooters, barricaded subjects, and other situations that gave rise to militarized training and equipment are few and far between.  I don’t have any problem with their existence or use, but I do have a problem when they are over-used.  In other words, I take no issue with militarized policing, but I do take issue with excessively militarized policing.  In that way, it’s rather like the use of force itself – it’s a rare but important aspect of policing, and society must allow officers to employ force when necessary but also guard against its overuse.  Do we have a problem with excessively militarized policing?  Yes.  Consider an excerpt of a forthcoming article I’m working on (here is the draft):

The era in which SWAT teams were born was an exceptionally dangerous time for police officers.  For the duration of the 1970s, an average of 115 officers were feloniously killed in the line of duty every year, with a high of 134 officers killed in 1973.  Even in that environment, however, SWAT teams were used sparingly, reserved for “volatile, high-risk situations such as bank robberies and hostage situations.”  Over time, more police agencies adopted SWAT teams,  and SWAT teams were deployed more often for circumstances other than the volatile, high-risk situations that originally justified their existence.  By the early 1980s, there were about three thousand SWAT deployments every year.  By 1996, the average had increased ten-fold, to thirty thousand.  The next five years saw a 25% increase, with the average rising to forty thousand deployments every year.  The increased use did not mirror an increase in crime: between “1980 and 1995, the number of times that SWAT units were dispatched increased by 538[%] while the crime rate was flat.”  SWAT teams began to be used more frequently for serving search or arrest warrants, particularly drug-related warrants.  Utah, the only state that currently tracks the deployment of police tactical teams, reported in 2014 that more than 78% of deployments related to drugs, while less than 2.5% related to active shooters, barricaded suspects, and hostage situations combined.

Seth W. Stoughton, Principled Policing, ___ Wake Forest L. Rev. ___ (forthcoming 2016) (footnotes omitted).

Historically, I think the 1033 program is both a symptom and a cause of excessively militarized policing.  In that article I just mentioned, I briefly describe the evolution of militarized policing, but Radley Balko literally wrote the book on this, and his Rise of the Warrior Cop is absolutely worth a read.  I don’t agree with him about everything, but it provides a useful background of how we got here and why it’s a problem.  My summary doesn’t go into as much depth and is almost certainly not written as well, but it identifies the War on Crime announced by President Johnson in 1965, the War on Drugs announced by President Nixon in 1971, and the War on Terrorism announced by President Bush in 2001, along with the policies that grew out of those “wars,” as factors that contributed to excessive police militarization.

I don’t think militarized tools should be taken away from law enforcement at an aggregate level, but I’m not convinced that every agency, no matter how small, needs a BearCat.  In most places, having a regional team or having mutual aid agreements with nearby large agencies that have their own teams is sufficient.  Agencies that have militarized equipment need training on how to use it and training on how not to use it, and they need guidelines in place that can be applied to assist with deployment decisions.  In the absence of well-thought-out guidelines, it’s far too easy for a supervisor to make an ill-informed, ad hoc decision to use some of that equipment that’s otherwise just sitting in the depot.

Q. In several papers, you’ve outlined the psychological importance to cops – who, after all, are called upon to confront danger and cope with humanity at its worst and most violent, often by resorting to violence themselves – of distinguishing themselves from the criminals they fight. The warrior mentality is one way of doing this; a popular metaphor separates the world into sheep, sheepdogs and wolves, with police cast in the role of the sheepdog. Isn’t there a dangerous, stare-into-the-abyss-for-too-long quality to this? When police see themselves as elite, uniquely qualified defenders, is it perhaps inevitable that they’ll circumvent the law and lie to judges, because no one else understands what they’re up against?

A. Yes, there are some serious and problematic implications of officers separating themselves from the communities they serve.  The article I mentioned in the last question has an entire section dedicated to exploring why the Warrior concept is so attractive to officers and, just as importantly, how it lends itself to misappropriation by officers who use it to justify actions that fall far short of the ideals they pay lip service to.  Rather than summarize or excerpt it, I’m going to exhort your readers to take a look at Section II of Principled Policing, a draft of which can be found here.

Q. Similarly, you’ve written that police educators relentlessly emphasize the risks of the job. (In reality, modern policing is a pretty safe trade.) All the same, the First Rule of Policing, “make it home for dinner,” has become proverbial. If police are truly to be guardians of the community, to what extent is it acceptable for them to offload the risks of an encounter on the rest of us? Should cops be as quick as they are to shoot people carrying mobile phones, Wii controllers or pens, on the off chance they might pose a threat? Is the police tendency to present themselves as beleaguered merely self-justification, a PR stunt? And is emphasizing the confrontational aspects of the job counterproductive, a self-fulfilling prophecy?

A. That’s a really difficult question, and far tougher than it seems at first glance.  On the one hand, officers are the professionals in any police/civilian encounter; they’re not only the ones best equipped to assess and manage risk, but they’re paid to run toward danger when duty requires it.  Under that view, we should resist the inclination to transfer risk from the officers to the civilians they interact with.

On the other hand, the nature of policing puts officers at more risk than civilians.  I keep a variety of statistics about violence against officers, and although it is far safer than the “War on Cops” rhetoric would suggest (with long-term decreases not just in the number of officer fatalities, but also in assaults against officers, edged weapon attacks against officers, and firearm attacks against officers), it remains true that, per capita, officers are murdered at a higher rate than civilians.  In the ten-year period ending in 2013, for example (the most recent year that I have good data for), an average of 5.2 civilians were killed every year for every 100,000 people in the United States, but an average of 7.3 officers were killed every year for every 100,000 state and local police officers in the United States.  The difference in those numbers has decreased dramatically (in 1985, it was 8.9 civilians per 100,000 compared to 20.8 officers per 100,000), but the fact remains that policing can be a dangerous job.

Ideally, officers would be able to, with the barest glance, easily distinguish between a firearm and a mobile phone.  Unfortunately, we don’t live in an ideal world; mistakes will be inevitable.  And sometimes an officer’s incorrect perception won’t actually be a mistake at all – Tamir Rice is a tragic example of this.  He was armed with a toy gun, but the officer’s perception of it as a real gun wasn’t a mistake – the gun looked real.  In my view, the Tamir Rice shooting was unreasonable and professionally unacceptable, but it wasn’t because the gun itself was a toy, it was because the officers used unbelievably bad tactics by pulling a vehicle up and parking within 10 feet of someone who was described as armed with a gun.  With no time to assess the situation from a position of relative safety (as cover or concealment may have provided), I’m not surprised the officer shot.  But as my earlier answer indicated, the lesson to learn is about the tactics that put the officer into that position in the first place.

In my view, over-emphasizing the confrontational aspects of policing has proven counterproductive.  Last year, I wrote about the prevalence of fear-based training in policing.

From their earliest days in the academy, would-be officers are told that their prime objective, the proverbial “first rule of law enforcement,” is to go home at the end of every shift. But they are taught that they live in an intensely hostile world.  A world that is, quite literally, gunning for them. As early as the first day of the police academy, the dangers officers face are depicted in graphic and heart-wrenching recordings that capture a fallen officer’s last moments. Death, they are told, is constantly a single, small misstep away. A recent article written by an officer for Police Magazine opens with this description: “The dangers we expose ourselves to every time we go [on duty] are almost immeasurable. We know this the day we sign up and the academy certainly does a good job of hammering the point home.”  For example, training materials at the New Mexico Police Academy hammer that point quite explicitly, informing recruits that the suspects they will be dealing with “are mentally prepared to react violently.” Each recruit is told, in these words, “[Y]ou could die today, tomorrow, or next Friday.”

Seth W. Stoughton, Law Enforcement’s Warrior Problem, 128 Harv. L. Rev. F. 225, 226-27 (2015) (footnotes omitted).  As Sue Rahr, a long-time police executive, member of President Obama’s Task Force on Twenty-First Century Policing and an advocate of the “Guardian Officer” model, put it: “We do our recruits no favor if we train them to approach every situation as a war. To do so sets them up to create unnecessary resistance and risk of injury.”  John S. Dempsey & Linda S. Forst, An Introduction to Policing 127 (8th ed. 2014).  This type of training not only affects officer’s use of force decisions, it affects their willingness to engage with community members.

To see the friction between relationship building and the warrior mentality, with its hypervigilant focus on preserving officer safety at all costs, consider this thought experiment: Imagine that you are a rookie police officer driving down the street, windows down, and looking for people in the community with whom you can begin building positive relationships. But you have been told (repeatedly) that your survival depends on believing that everyone you see — literally everyone — is capable of, and may very well be interested in, killing you. Put in that position, would you actually get out of your car and approach someone? And if you did, would you stroll up to start a casual conversation or would you advance cautiously, ask for identification, run a criminal background check, and request consent to search . . . and then, maybe, try to start that casual conversation? The latter, of course, is what many officers are taught to do. It is what I was taught to do as a rookie officer. My first ever “consensual encounter,” only hours into my first day of field training, followed exactly that pattern. It takes no great imagination to recognize how badly that approach, repeated over hundreds or thousands of police/civilian interactions in any given jurisdiction, hinders the creation of meaningful, collaborative relationships.

Id. at 228-29.

As a result, training based on emphasizing fear and threat makes officers less safe in two ways.  At the micro level, in individual encounters, officers who are hypervigilant to threats may view confusion or disrespect as physically threatening and respond accordingly.  For example, officers at many agencies are still trained under the “Ask, Tell, Make” approach, which is fairly self-explanatory – if someone doesn’t do what you ask them to, you tell them to.  If they still don’t do it, you make them do it.  David Perry refers to this as the “Cult of Compliance.”  Officers are trained to dominate a scene, to show “command presence,” as a matter of officer safety, but doing so can create completely avoidable conflicts.

This approach can also undermine officer safety at the macro level.  Consider Ferguson.  In the aftermath of the Michael Brown shooting, two narratives emerged.  Under one, Michael Brown had aggressively attacked Officer Wilson and was approaching him threateningly at the time he was shot.  Under the other, Michael Brown was shot while he had his hands up to surrender.  Many community members believed the second story, even after it was debunked by a thorough investigation by the Department of Justice.  Consider that for a moment.  They viewed a story about an officer executing a young man not only as entirely possible, but as more plausible than the official (and correct) story about an officer using force to defend himself.  Why?  It wasn’t because of the shooting itself or the events that took place on that day.  It was because community members no longer trusted the police.  The result of that distrust was days, weeks, and months of unrest that not endangered hundreds of officers and thousands of civilians.  You don’t see that type of reaction in jurisdictions where agencies have the trust of the community.  I’m not just talking about middle-class White communities, either.  When an officer in Richland, CA, a high-crime city north of Oakland, shot and killed someone who, it was alleged, had tried to wrestle the officer’s gun away from him, there were candlelight vigils and demands for answers, but no protests and no civil unrest.  In fact, the slain suspect’s family invited the police chief to the funeral, and he went.  That trust was built on the slow efforts of officers in individual encounters.

I heard a wonderful quotation recently: Trust is gathered in drops but lost in buckets.

Q. When we interviewed Nick Selby, he cited you to support his claim that it’s inaccurate to talk about a universal police culture. But many of the developments you point to in your papers were nationwide trends, things like the emergence of SWAT teams and the War on Drugs. You also name several events that had wide-reaching consequences for police across the nation, like the 1997 North Hollywood bank shooting and the Columbine massacre. Allowing for differences between departments, is the idea of a common culture really that far-fetched? Even if we take departmental differences into account, is there an overarching common culture? If not, why does it appear that way to the public?

A. Yeah, I still need to mail him a check for those citations…

Nick argued that there were as many police cultures as there are agencies, but I’d actually take that a step further: a single agency can have multiple cultures that depend on shift, on supervisor, on detail, and so on.  But with that said, I think there are common—although not necessarily universal—aspects of policing that make “police culture” a coherent concept.  Policing isn’t monolithic, but there are widely shared norms, values, and beliefs.

Further, the public doesn’t always understand that policing isn’t a single entity.  When one officer does something egregious, such as shooting a fleeing Walter Scott in the back, it reflects on policing nationwide.  That isn’t fair, but it’s true.  Consider the contemptible attacks on officers in Dallas and Baton Rouge; both appear to have been planned and carried out by individuals motivated by hatred for police generally, not spontaneous responses to some incident that involved the officers who were attacked.  Both attackers may have been attuned to national frustrations with policing rather than local problems: the Dallas Police Department has progressively embraced a range of reforms, while the attacker in Louisiana may have been responding to a recent shooting, but had come down from Kansas City, Missouri.  This is new, worrisome, and demands changing the way we think about police-community relations and reform.

Q. How can cops successfully transition from a “warrior” to a “guardian” mindset? To what extent does the community need to make concessions, be willing to engage, to comply? Is reform supposed to consist of top-down measures, or will the revolution begin with rank-and-file members? And is it a good idea to do away with warrior cops altogether? What if things actually got as bad as police claim they are now? Is there a place for “Dirty Harry” on the job?

A. I’m starting to work on a book project that tries to take on some of these questions, so I’m just going to offer a couple of thoughts.  First, there is a need for police reform, but there’s also the need for reform external to policing.  Perhaps we need to start with how we, as a society, evaluate the success of our police agencies – historically, we’ve looked at crime rates.  If crime was down, they were doing a great job.  If crime was up, they weren’t, and we could expect a resignation and replacement as a matter of course.

But policing has a complicated and poorly understood relationship with crime, even after all the time and effort that has been put into researching that relationship. Continuing to rely on crime rates as a metric for successful policing isn’t just silly, it’s counterproductive – it creates incentives for short-term policing tactics, such as zero-tolerance, Broken Windows-style policing, that can actually be criminogenic (that is, it can increase crime rates over the long term).  So step one is to find a better set of metrics to evaluate policing than crime rates.

Within policing, I think there’s a need for a number of changes that ultimately relate to changing officers’ expectations about what successful policing looks like.  It’s easy to describe this as “culture,” but I think it’s more useful to think of it as “principles” or “values.”  Like any reform, these changes are going to take time—I’m talking decades—and they’re going to require buy-in not just from the rank-and-file and police executives, but also from front-line supervisors, instructors, training officers, and so on.

No, there’s no place for Dirty Harry.  That image might be celebrated or glorified in the media, but behavior like that ultimately creates immeasurable problems for officers.  Let me give you a simplified example: if I, as an officer, manage to piss someone off, they aren’t just going to hold it against me.  They’re going to tell their friends and family about it, and then they’re all going to hold it against the police generally.

Q. After a stint as an investigator with the Florida DoE’s Office of Inspector General, you finished your literature degree, went to law school and became a full-blown lawprof. Before you took your current position as an associate professor at USC, you were a lecturer at Harvard. Your police background gives you cred, and your scholarship has cemented your reputation as a knowledgeable voice on police reform. All in all, not too shabby. But why didn’t you become a prosecutor? Ever felt the urge to appear in the well? What drew you back in to the academic life? And is there anything that could draw you back out? On the street? In the trenches? Maybe on the bench?

A. I thought about it very seriously, but I was a non-traditional (read: older) student when I went to law school.  I was married, had two kids, and by the time I finished my clerkship, I was in my early 30s.  That’s not old (he writes, somewhat defensively), but I was ready to start a career that I was really excited about.  There are lots of great prosecutors and defense attorneys, including some that I have tremendous respect for and would love to work with.  But I don’t think my history or experience would have been as valuable in that context as it is as an academic.

I was, and I remain, excited about academia because I think I have some insight (into policing, the way police are regulated, and the way those regulations affect officer behavior) that not a lot of legal academic have.  I’m not in any way suggesting that my experience is the be-all, end-all; we can’t gather useful information about a system as complicated as policing by looking at any one person’s experience, even if that experience dwarfed my five years as a cop.  But being able to see things from multiple perspectives puts me in a good position to work toward the improvement of a profession that I value highly and care deeply about.

*The image of Seth in uniform, in a go-cart, comes with a story that tells what he was all about as a cop on the street. In his words:

I got called to a noise complaint; a kid was driving his new go-cart around a parking lot that abutted a residential neighborhood.  I talked to the kid and his father, and they asked if they had to stop because of the complaint.  No way.  I wasn’t going to stop a kid from playing with his Christmas present at 10:00 in the morning because it made some noise (it was about as loud as a lawn mower, as I recall, but higher pitch).  I told them they could keep at it, but I had a favor to ask…  Thus, the picture.  Police work can be serious business, but no one should take themselves too seriously.