NICK EICHER, HOST: It’s Wednesday the 10th of June, 2020. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.
MEGAN BASHAM, HOST: And I’m Megan Basham. First up: police reform.
On Monday, Democrats unveiled a bill they’re calling the Justice in Policing Act. The goal is to prevent future incidents that lead to suspects dying during encounters with officers.
The bill would establish a federal ban on chokeholds, mandate the use of body cameras, and create a national database of officers accused of abusing their power.
It would also eliminate a legal precedent that helps shield officers from civil lawsuits. And it would put an end to programs that help police departments buy military-grade equipment.
EICHER: Senate Majority Leader Mitch McConnell said he would review the proposal. But it’s not clear how much support it would get in the Republican-controlled Senate.
Joining us now to talk about what’s in the proposal is Clark Neily. He is vice president for criminal justice at the Cato Institute. He is also an adjunct professor at George Mason University’s Antonin Scalia Law School. Thanks for joining us today.
CLARK NEILY, GUEST: My pleasure, great to be with you.
EICHER: I’d like to start by talking about a proposal in the bill that you’ve advocated for a long time—an end to qualified immunity. Now, that’s a legal term that’s not broadly known, so at the risk of oversimplifying, it basically gives police officers some immunity from lawsuits in civil courts for their on-the-job actions.
Maybe dive into why you think qualified immunity is bad policy and if we end it, what will that do?
NEILY: Right. So, to be clear, it’s not a complete bar against civil lawsuits, it just makes it extraordinarily difficult. But we should really take a step back because the fundamental question is this: When you clothe government officials, including particularly police officers, with the immense power that we do—they have the power to arrest people, they have the power to take life—when you clothe a government official with that much power, it is extraordinarily important what kind of accountability comes with it. And unfortunately what we’ve embraced in this country is what I call a near-zero policy of accountability for members of law enforcement.
And qualified immunity is really the cornerstone of that near-zero accountability policy. And here’s why: There are really only three ways to hold a police officer accountable for abusing his authority. The first is a criminal prosecution. And that almost never happens. You have to have kind of what we had in Minneapolis, a viral video, tremendous pressure to bring charges. But that almost never happens, largely because prosecutors have a massive conflict of interest when it comes to bringing charges against police officers since they work so closely with them.
Another mechanism is internal accountability, such as citizen review board or internal affairs. Those don’t work at all, largely because you’re asking the police to decide whether the police did anything wrong and they always say no.
So that leaves really only one avenue for ensuring accountability on the part of police and other government officials and that’s the ability to bring a civil damages claim in court. And that’s where qualified immunity comes into play by providing a defense to almost any kind of conduct you can come up with. We can get into the guts of it in a moment, but it makes it very, very difficult to sue police officers. And once you cannot do that, there’s really no accountability at all.
EICHER: Those who support qualified immunity say ending it will make police officers reluctant to do their jobs for fear of being sued. Are there ways to mitigate the concern?
NEILY: No, it’s completely made up. It’s just a complete red herring. There’s no empirical evidence whatsoever to support the idea that police will radically change their behavior if they are suddenly required to be accountable just like the rest of us are. It just doesn’t work that way. But it is a favorite response of people who kind of want to try to scare politicians and others into not reforming qualified immunity by getting rid of it.
But the bottom line is this: We are held to a very high standard of accountability by members of law enforcement as citizens, and it should not be a double-standard. If we are going to be held to a high level of accountability by them, they should be held to a high level of accountability by us.
EICHER: At the height of the protests over George Floyd’s death, President Trump threatened to deploy the military to help quell the violence. But in some places it looked like that had already happened. Police officers faced off with protesters were decked out in full tactical gear, armed with tear gas and rubber bullets, and backed by armored vehicles.
Most police departments wouldn’t have that kind of equipment if it weren’t for federal programs that allow them to buy surplus military equipment from the U.S. government. The proposed legislation would put an end to that.
Do you think having this kind of equipment contributes to more militarized tactics that ultimately put civilians’ lives in danger?
NEILY: Oh, absolutely. There’s no question about it. And it’s not just more militarized tactics. It’s a more militarized mindset. When you kit somebody out as a soldier, you put them in a mindset where they are essentially in opposition to the surrounding population. And that’s very much the attitude that we see on the part of many—not all—but many police officers. And so the militarization of police is absolutely a significant part of that. It doesn’t just change tactics, it changes the mindset. And just to take one horrific example, the Department of Defense has distributed 12,000 bayonets to local police departments. What on earth does a civilian, peace-keeping force have need of bayonets for? That is terrifying.
EICHER: The proposed legislation does not include any mention of defunding police departments. But that idea had gotten a lot of attention in the last few days, especially after a majority of Minneapolis city council members said they wanted to disband that city’s police department. You recently wrote that America’s criminal justice system is “rotten to the core.” Do you think we need to start from scratch, as the move for defunding suggests? Or can we address problems with reforms?
NEILY: It’s a tough call. I would say this: I think defunding police is more of a slogan than it is an actual policy proposal. It’s vitally important to have a well-functioning criminal justice system. You can’t have complete lawlessness and you have to have police in order to have a well-functioning criminal justice system. The problem is that the rot in our criminal justice system is so deep that people are skeptical whether it can be reformed, or whether it has to be completely reconstituted. That, I think, is a very close call. But at the end of the day, you will need to have something like a professional police force in order to enforce and investigate the laws. But the way we’re doing it now, absolutely needs to be completely overhauled.
EICHER: Is there something you would like to see lawmakers consider that is not on the table at the moment? And do you think any of these proposals have a chance of getting through a very divided Congress?
NEILY: There are, yeah. So, the number one pathology of America’s criminal justice system in my judgement is what I call “point-and-convict” adjudication. What I mean by that is that prosecutors have become so adept at coercing people into pleading guilty that there are almost no trials in America anymore. More than 95 percent of all criminal convictions come from guilty pleas that have been coerced. I think of the criminal justice system as a gigantic wood-chipper and when you allow coercive plea bargaining to be your primary mechanism for adjudicating criminal charges, you can throw absolutely every bit of human material into that wood-chipper that you want and you will always get the same thing coming out the other end, which is convictions. That is an extraordinarily dangerous arrangement to have in any society and it is absolutely the fundamental operating principle for America’s criminal justice system. And that is coerced adjudication.
EICHER: Well, Clark, let’s talk about counting votes. Do you think the idea of ending qualified immunity is a thing that would gain some traction not only among Democrats—I think they’re basically there—but among Republicans? Do you think this is the kind of thing, actually, that could lead to some bipartisan action?
NEILY: I do. Democrats have taken the lead on this so far, which is not unusual on criminal justice reform issues. But what is unusual is the openness and the interest in qualified immunity reform—and I should just come out and say it, eliminating qualified immunity—among Republicans. I think that’s picking up momentum. I think it will increase. And I think that when you understand how qualified immunity works and what role it plays in our system, it’s no surprise that there would be bipartisan support for eliminating it. Because, again, members of law enforcement insist upon a massive double standard whereby they hold the rest of us to very high levels of accountability, but insist on very low levels of accountability for themselves. I think that is utterly unsustainable.
EICHER: Well, what do you think the political obstacles are? Do you think that largely we’re talking about police union resistance to the idea of ending qualified immunity?
NEILY: Well, I think that certainly plays a significant part of it. Police unions are very powerful and if you lump them together with prosecutor unions and prison guard unions and call that the law enforcement lobby, it’s extremely strong. Probably the second or third strongest lobby in the country.
But it’s not just unions. We employ millions of people in the business of investigating, prosecuting, and convicting people, and ultimately incarcerating them. So you have hundreds of thousands or millions of people who will resist any effort to fundamentally reform the system as it is now.
EICHER: Clark Neily is vice president for criminal justice at the Cato Institute. He’s also a law professor at George Mason University. And he served as co‐counsel in District of Columbia v. Heller, in which the Supreme Court upheld the individual right to own a gun for self‐defense. Thanks so much for joining us today!
NEILY: It’s my pleasure. Thanks so much for having me on.