Oct. 29, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Radley Balko, Washington Post columnist at The Watch and author of Rise of the Warrior Cop: The Militarization of America’s Police Forces.
Q. You did one year of law school before walking away. What did you figure out that the rest of us didn’t?
A. I’m glad I went, and I’m glad I dropped out. I think both were necessary. I loved the intellectual rigor of law school. And those first year courses have been incredibly valuable in my reporting. I think every journalist should take the first year law school classes in property, criminal law, constitutional law, and torts. But I knew I didn’t want to be a lawyer before I went. I enrolled mostly because I was curious, and because I wasn’t happy with my job at the time.Those would be acceptable reasons if it didn’t cost $40K per year. My advice: Go to law school if you’re certain you want to be an attorney, or if someone else is paying for it. Otherwise, don’t.
A. Not really. I mean, I’ve been criticized by conservatives, but mostly from holdout law-and-order types. When talking to or writing for conservatives, I try to emphasize the point that cops and prosecutors are government employees. The fact that they’re doing a job you happen to think is necessary doesn’t mean they’re immune to the public choice problems that affect any other government worker — corruption of power, perverse incentives, mission creep, turf wars, and so on. The main difference is that with cops and prosecutors, the stakes are much higher. So they actually require more oversight, transparency, and accountability. I think more conservative intellectuals are getting that. Unfortunately, they’re often drowned out by all the Fox News-Chris Christie-style demagoguery.As for libertarians, I’d say most, nearly all agree with me on these issues. I’ve received nothing but positive feedback from other libertarians in the decade or so that I’ve been writing about this stuff. I think until the last several years, with the exception of the drug war, libertarians have been far too quiet about some of these issues. Part of that I think is because these issues just didn’t affect them personally — which is true of most people. But that’s no longer the case. Reason does some of the best criminal justice reporting anywhere. And Cato people have been really vocal on issues like police brutality, prosecutor misconduct, sentencing, etc.
A. The biggest change I guess is in what I write about. Back when I had a smaller readership, I’d write about just about anything — my personal life, topics upon which I wasn’t really qualified to have an informed opinion. I sometimes cringe at some of the stuff I used to blog about. So I guess I’m more focused now. Probably more professional.One big difference now is how I get stories. Early in my career I’d have to hunt them down. Now, it’s more about sorting through all the tips and leads people send me, and figuring out which ones are worth pursuing. Tips from defense attorneys almost always check out. They’re not going to waste time contacting a journalist unless they’re really angry about a case. Tips from wives and girlfriends of inmates are the least reliable. I actually once reached out to a guy in prison after getting a long email from his girlfriend protesting his innocence. He said, “No, I did it. I love that woman, but she’s just trying to get me out.” Lesson learned.
Also, sources return my calls, now.
A. We have a natural suspicion of anyone who runs afoul of the criminal justice system. Except in really egregious cases, I think most people assume that if you get shot by a cop, you probably had it coming. But we don’t think that about dogs. Even when a dog is angry, it’s just being a dog.I’ve heard people make the point that we get angry about dog shootings because we care more about dogs than we do about people. Maybe there’s something to that. But I also think the dog shooting phenomenon is symptomatic of the larger problem. Older and retired cops I’ve interviewed over the years are bewildered by it. One retired cop I interviewed for the book said he’d never seen or heard of a cop shooting a dog over the course of his entire career. He’s mortified at how often it happens today. I think it demonstrates how officer safety has become the highest priority in policing. The fear of a dog bite now justifies the use of lethal force, even if it puts people nearby at risk. And it’s entirely subjective. If a cop says he was afraid of the dog, the shooting is deemed justified, no matter how irrational that fear may have been. Most police departments also offer very little training in how to interact with dogs, or how to deal with them in ways other than killing them.
So there’s a deference to the police account of the event. There’s a premium on officer safety, often at the expense of public safety. There’s little to no training in de-escalation. This should all sound familiar.
A. Because it was mostly happening to people who don’t have a voice. It’s telling that the first state to pass any sort of SWAT oversight bill passed that bill only after a botched SWAT raid on the mayor of a small town. When a member of the political class was affected, the political class took action.I think the national movement on police reform is due primarily to two developments: First, police and prosecutor misconduct is finally starting to affect people who have a platform or some political power. Second, thanks to cell phone cameras and social media, the communities that have been dealing with these problems all along finally have a way to get the rest of us to pay attention.
A. Thanks for the compliment. As I pointed out in the book, it’s important to remember that the policies that gave us more militarized police forces came at a time when crime rates were soaring. Nixon came to power in an era where people frequently saw rioting on television, when homicide rates were through the roof. I don’t think those policies made us safer. In the book I profile Jerry Wilson, a very progressive police chief in D.C. in the early 1970s who refused to adopt policies like no-knock raids and other aggressive police tactics. Crime dropped in D.C. during his tenure even as it was going up across the country.But those policies were in response to something that was real. The problem of course is that when the crime rate drops again, we don’t repeal all those policies we passed out of fear. We don’t even make an effort to assess which ones worked and which ones didn’t. (Or at least not until only recently.) We just wait for the next crisis, then pass more laws that give police and prosecutors more power. It’s what the historian Robert Higgs calls the ratchet effect.That’s why these stories speculating about the soaring crime rate are so harmful and irresponsible. First, it isn’t even at all clear that the crime rate is going up. But even if it is, it at worst is back to levels it was five or six years ago — levels we were excited about at the time. To report this stuff without that context poisons the discussion of reform.
A. I’m sure there are lots of law enforcement officials out there who would disagree with you about my rapport with them. But I did interview lots of current and former police officers and law enforcement officials for the book. I thought it was important to get their perspective. And yes, that definitely colored my own perspective.I do think it can be too easy to simply rail against cops as the enemy. Yes, there are of course bad cops out there. And there’s a problem with the culture of policing. It’s hard to think of any profession more defensive, tightly-knit, and psychologically isolated than law enforcement. That’s not just bad for the communities where cops work, it’s bad for cops themselves. Imagine a job in which you drive around all day in a neighborhood that doesn’t particularly welcome you, and in which you only interact with other human beings to confront them, accuse them, or in response to conflict. That’s a pretty miserable work life. It also makes it a lot more difficult to do your job.But this is all due to bad policy. Reactionary policing is the result of policies that grew out of the police professionalism movement. Stop-and-frisk, the overuse of informants, ubiquitous SWAT raids, aggressive enforcement of petty crimes and misdemeanors, and other problems that create such bad blood in many communities — these are all policies. They’re policies that can be changed. Even cultural issues like the “First Rule of Policing” can be addressed with better policies. Even something as seemingly benign as recruiting videos can have a big impact — you’ll attract a very different set of recruits when you pitch policing as public service than when you pitch the job as “getting the bad guys.”It’s natural to want to shame and punish police officers who beat up a suspect, shoot too quickly, and commit other misconduct. But it’s far more productive if we can figure out how to curtail misconduct in the first place.
A. When I was reporting on the Cory Maye case, I was struck by how powerful the testimony from the medical examiner was in convincing the jury that Maye was lying. It got me curious, about that particular medical examiner, and about expert testimony in general. It isn’t that all forensic science is junk, but too much of it is. And even the fields that have some value are usually vastly overstated in court. I don’t think most people realize just how little science is behind most expert testimony that’s passed off as scientific. It’s just jaw dropping to me that we’ve sent people to prison, sometimes to death row, based on the assertion of self-proclaimed experts whose methodology is not more scientific than palm reading or Tarot cards. I mean, if you say that according to your analysis, the defendant is the only person on the planet who could have left those bite marks or dropped that hair, the defendant is sent to prison based on your expertise, and then is later proven innocent, I would think that ought to be enough to forever disqualify you as an expert. But that isn’t what happens.Even with some of the more legitimate fields of forensics, you have huge problems with cognitive bias and misplaced incentives. I mean, in some states, the crime lab analysts ultimately report to the prosecutor. In other states, it’s the state police or the attorney general. Even the most conscientious analyst is going to have problems remaining objective if the person who does his performance reviews is also the person who needs his help to win convictions. It seems like such an obvious thing. And yet we get scandal after scandal in these crime labs, and very little changes.
A. As I wrote earlier, I’m glad I went to law school, and I’m glad I quit. I don’t think I’d have the temperament or political outlook to be a prosecutor. I admire criminal defense lawyers, but I’m sometimes amazed at how they retain their sanity. Not for me. I love what I do, and it’s what I’m best suited to do. It’s a pretty lucky thing to do what you love for a living.
A. That’s a flattering description. I actually have given a lecture to a room full of cops, on a couple of occasions. But in the spirit of your question, I think the thing policing today needs most is empathy. Earlier this year I interviewed former Baltimore police officer Michael Wood. The thing I found most moving about his revelatory moment is that it was the result of him simply watching the residents of Baltimore’s high-crime areas for long periods of time while serving on a drug unit. For the first time, he saw them as people, not as potential threats, or possible criminals, or problems to be addressed. It was seeing them take their kids to school, run errands, go to work, do the same day-to-day things we all do.That’s why the drug war and the trend toward more militarized police has been so destructive. There’s a reason why governments dehumanize an enemy before going to war. In a real war, empathy is the last thing you want to encourage. But of course policing is far removed from soldiering. Or at least it should be. We don’t ask police to obliterate foreign armies. We ask them to protect our rights.And yet we’ve trained police officers to see themselves as soldiers, that it’s them against everyone else. We constantly tell cops that they’re under fire, that there’s a threat around every corner. We’ve had a couple generations of political leaders dehumanize drug users, drug dealers, and anyone who finds themselves caught up in the criminal justice system.We need cops to see themselves as a part of the communities they serve. We need those communities to see cops that way, too. But we’ve embraced policies and rhetoric that make both of those things next to impossible.