Reprinted from City Journal.
Donald Trump vigorously defended law enforcement during his presidential campaign. He pledged to restore order to the nation’s cities—where violent crime is surging—and to reinvigorate the rule of law. His appointment of conservative Republican senator Jeff Sessions as attorney general was a strong signal that Trump’s words were more than campaign rhetoric. Now that the Trump administration and the Sessions-led Justice Department are up and running, where should they focus their efforts?
The most immediate goal of the Trump administration should be to change the elite-driven narrative about the criminal-justice system. That narrative, which holds that policing is lethally racist, has dominated public discourse since the fatal shooting of Michael Brown in Ferguson, Missouri, in August 2014. In response, officers are backing off of proactive policing, and violent crime is rising fast: 2015 saw the largest one-year spike in homicides nationwide in nearly 50 years. That violent-crime increase has continued unabated through 2016 and into the early months of 2017. A Trump administration official—perhaps Attorney General Sessions, or the president himself—should publicly address the question of what we expect from police officers: Do we want them to be proactive and to try to stop crime before it happens? Or do we want them to be purely reactive, responding to crime only after someone has been victimized? The administration should explain that data-driven, proactive policing made possible the country’s 20-year, 50 percent violent-crime decline that began in the mid-1990s.
In February, Sessions made a good start in turning around the false narrative about policing, addressing the National Association of Attorneys General. Sessions warned that the nation’s violent-crime decline is now at risk, while acknowledging that the crime increase is not happening in every neighborhood. Yet we are diminished as a nation, he said, when citizens “fear for their life when they leave their home.” (To be blunt, the violent-crime increase has hit almost exclusively in black neighborhoods. Nine hundred additional black males were murdered in 2015 compared with 2014, bringing total black homicide deaths that year to more than 7,000. It is a marker of the perversity of elite rhetoric about race that both Trump and Sessions have been fiercely attacked as racist for pledging to save black lives.)
Sessions noted that officers have become reluctant to get out of their cars to conduct discretionary stops and other “up-close” preventive policing. The administration should go further: it should convey the charged, hostile atmosphere in which officers in many urban areas now operate, thanks to the hatred spread by the Black Lives Matter movement. Gun murders of officers increased more than 50 percent in 2016, led by the targeted assassinations of cops.
A frontal assault on the dominant narrative about a racist criminal-justice system will require laying out the stark racial disparities in criminal offending and victimization. The public has been kept in the dark for decades about how vast those disparities are: blacks commit homicide at eight times the rate of whites and Hispanics combined, for example, and die of homicide at six times the rate of whites and Hispanics combined. Lifting that veil of ignorance is necessary to explain why officers operate more actively in minority neighborhoods—in order to save lives. The public must also understand that it is law-abiding members of high-crime communities themselves who beg the police to maintain order, and that such public-order policing was central to the now-jeopardized 20-year crime decline.
The federal government will be vigilant against abusive policing, the administration should say, but it will not deem police departments and police officers biased for proactively fighting crime.
The federal government’s practice of slapping years-long consent decrees on police departments calls out for reform. There is zero chance that civil rights attorneys in the federal government know more than police departments do about how to fight crime constitutionally and successfully. Yet the Obama administration opened 25 “pattern-or-practice” civil rights investigations, based on the false notions that police bias is widespread and that federal lawyers are qualified to recommend effective police practices. The Department of Justice is currently enforcing 14 consent decrees with local departments, which grew out of such investigations. At a minimum, the Trump administration should publish data on how much the Obama-era investigations and consent decrees have cost those departments.
At the end of March 2017, Sessions announced a review of existing and pending consent decrees. The immediate target of this review was a consent decree for the Baltimore Police Department, hastily signed in the waning days of the Obama administration and at that point still awaiting final approval from a federal judge. Sessions’s reevaluation was fully justified. As is typical, the Obama-era DOJ report that preceded the Baltimore decree failed to put numbers behind its charge that the Baltimore PD engaged in a “pattern or practice” of unconstitutional policing. The Obama report blasts the Baltimore cops for “clearing the corners” of miscreants and loiterers, but the police engage in such corner-clearing at the behest of the community. Since the report came out in summer 2016, Baltimore neighborhoods have been overrun by drug dealers, who now believe that they can operate with impunity. Residents have begged the department to return to corner-clearing and other public-order enforcement.
The proposed Baltimore consent decree discourages all such self-initiated police activities. It requires officers to contact a supervisor before making an arrest for minor offenses like disorderly conduct. It prohibits officers from stopping and questioning trespassers and loiterers, unless the officer has received a call for service regarding those individuals. The spurious philosophy beneath these rules is that policing should focus on “serious offenses,” not “minor infractions.” But the best way to prevent serious offenses is to maintain public order in high-crime areas. Proponents argue that the deemphasis on low-level enforcement will save money; in fact, it will only lead to more high-level crime.
Violent street crime in Baltimore has remained at alarming levels in 2017; shootings were up 78 percent through February 25, compared with the same period in 2016; homicides were up 38 percent through early March. These increases come on top of the highest per-capita homicide rate in the city’s history in 2015 and close to that record rate in 2016. Complying with the consent decree will cost financially struggling Baltimore millions of dollars—money that could be better spent hiring new officers and giving them rigorous tactical training. Officers will be pulled from the streets to compile reports for the overpaid federal monitor, covering matters including—as reported in the Power Line blog—whether beat cops respect an individual’s chosen “gender identity” in addressing him (or “zim”). In March 2017, seven plainclothes Baltimore officers were indicted for extortion and fraud. The consent decree is irrelevant to this egregious failure of supervision, focusing as it does on the usual policing-is-racist narrative. Five of the seven indicted officers were black.
The Sessions Justice Department requested a 90-day pause before District Court Judge James Bredar made the Baltimore decree irrevocable. This request triggered strenuous protest, not just from activists and Democratic politicians but also, bizarrely, from Baltimore police commissioner Kevin Davis himself. Davis in essence was declaring his inability to manage his own police department without federal oversight. Judge Bredar rejected the DOJ request for a 90-day extension and approved the decree on April 7, consigning Baltimore and Maryland taxpayers to a depleted and demoralized police force and to tens, if not hundreds, of millions of dollars of unnecessary costs and fees.
The next target of the Sessions consent decree review is an as-yet unfinalized consent decree in Chicago. Since no agreement between the Justice Department and Chicago officials has been signed, the Justice Department should drop negotiations and pull out. The Obama-era report that triggered the pending consent decree suffers from the same flaws as the Baltimore report: it provides no quantified evidence for its claim that the Chicago Police Department engages in systemic civil rights abuses. The mayhem in Chicago in February and March 2017 alone included the slaying of a two-year-old boy and two other children in separate drive-by shootings over four days, and the spread of rape, robberies, carjackings, and kidnappings into downtown and other previously safe neighborhoods. Quelling that violence will not be made easier by diverting police resources into the care and feeding of a federal monitor.
The 2012 police consent decree in New Orleans, for example, is projected to cost $55 million over five years; the actual cost will be much higher. A recent news story trumpeted the fact that sexual-assault complaints rose 83 percent in 2015 (allegedly suggesting greater “gender” sensitivity in the New Orleans Police Department). What should be of greater concern is the fact that New Orleans is also in the midst of an ongoing violent-crime spike. Shootings and homicides more than doubled in January 2017 over January 2016, notwithstanding that 2015 and 2016 had already seen a significant rise in murder and shootings.
Sessions’s announced review of pending consent decrees brought forth the same claims of impotence on the part of Chicago officials as it did in Baltimore. The attorney general should ignore these professions of dependency on the federal government and do the right thing for the law-abiding residents of Chicago’s gang-terrorized neighborhoods by tearing up the proposed decree.
The Department of Justice’s Civil Rights Division should formulate and publish the criteria that it will use to open pattern-or-practice civil rights investigations of police departments. It should quantify the constitutional violations that it uncovers during pattern-or-practice investigations and explain how it concludes that these infractions rise to the level of a “pattern or practice” of civil rights abuses.
The federal government should analyze police actions against a benchmark of crime rates, not population data. If 55 percent of police stops in a jurisdiction have black subjects, for example, the relevant starting point for analysis is the percentage of violent crime committed by blacks, not the black percentage of the resident population.
The specious population benchmark for finding police discrimination is typical of the disparate-impact analysis that drove most criminal-justice policy under the Obama administration. Such analysis should be extirpated in its entirety. There is not a single colorblind law-enforcement practice that does not have a disparate impact on blacks and Hispanics, given their higher rates of crime. The only way to avoid a disparate impact in law enforcement is to stop enforcing the law.
Before the election, the FBI announced a worthy initiative to collect and publish data on all officer uses of force. Such reporting must be accompanied, however, by information on local crime rates, since police use of force will occur most frequently where cops encounter armed and resisting suspects.
Crime-fighting remains overwhelmingly a local matter. But federal agents—from the FBI, the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and the U.S. Marshals Service—can provide vital assistance. Federal law enforcement reoriented itself toward counterterrorism and cybercrime following the 9/11 Islamist terror attacks. With violence skyrocketing in many urban areas, it is time for a rebalancing. Embattled police departments are calling for more federal agents to work on joint gun and drug task forces. Trump’s proposed budget for the Justice Department has recognized that demand by allocating an additional $175 million to address violent crime.
U.S. gun and drug prosecutions fell significantly during the Obama years, discouraged by the administration’s belief that mandatory-minimum federal sentences, especially for drug trafficking, have resulted in the “mass incarceration” of minorities. In fact, drug enforcement plays no role in disproportionate black incarceration rates. If all drug prisoners were removed from the nation’s prisons, the share of black prisoners would drop from 37.4 percent to 37.2 percent. Libertarians might welcome the five-year, 18 percent drop in federal drug prosecutions, but neighborhoods riven by drug violence do not. In Baltimore, when the local police stopped making drug arrests following the anti-cop riots of April 2015, shootings spiked. Attorney General Sessions must encourage U.S. attorneys in high-crime areas to increase their gun and drug cases, including RICO prosecutions. While modest changes in the federal sentencing guidelines for drug trafficking are acceptable, they should not be undertaken in the name of “racial justice.”
All federal law-enforcement agencies should adopt a CompStat system for information-sharing and analysis. CompStat, first developed in the New York Police Department under Mayor Rudolph Giuliani, holds commanders ruthlessly accountable for measurable results. A White House allegedly informed by business acumen should welcome such a proven system for bottom-line accountability.
Obama’s first attorney general, Eric Holder, called on local U.S. attorneys to involve themselves in prisoner reentry and rehabilitation activities. The Trump administration should determine if that initiative is producing enough crime reduction to justify the diversion of scarce prosecutorial resources; arguably, reentry activities are most efficiently carried out by U.S. probation officers. Federal prisons, on the other hand, can serve as a model for prison work policies and prisoner education. The Bureau of Prisons should partner with private business for job-skills development, as recommended in the Sentencing Reform and Corrections Act of 2015.
Sanctuary cities, counties, and states must be severely penalized. These scofflaw jurisdictions, numbering about 300, refuse to cooperate with Immigration and Customs Enforcement (ICE) efforts to deport convicted illegal-alien criminals. When ICE requests that a jail in a sanctuary jurisdiction briefly hold a criminal who has finished serving his sentence so that ICE can pick him up for deportation, the jail will deliberately release him before ICE can arrive, unless his crime was particularly heinous. Over just one week in late January 2017, ICE found 206 criminal aliens who had been released back to the streets in defiance of a detention request. Their convictions included aggravated assault with a weapon, robbery, rape, aggravated assault against a family member, domestic violence, life-threatening arson against a residence, burglaries of homes and businesses, battery, carrying a prohibited weapon, resisting an officer, driving under the influence, forgery, and indecent exposure. Pending charges against those released aliens included homicide, aggravated assault against an officer with a weapon, and indecent exposure to a minor.
Such disobedience of lawful federal requests undermines the constitutional system. It is also a betrayal of a fundamental truth that big-city police chiefs purport to believe: that all violations of public order, including so-called low-level offenses, threaten community cohesion and safety. There is no public benefit to sending an illegal-alien criminal back into the community if grounds exist for removing him. Congress should impose liability on local law-enforcement officials if someone is victimized by an illegal-alien criminal released in defiance of ICE.
Passage of the Mandatory Minimums for Illegal Reentry Act of 2015, which establishes a compulsory five-year sentence for illegal reentry, would encourage U.S. attorneys to prosecute illegal aliens who have reentered the country following deportation. Trump’s proposed 2018 budget rightly funds 75 additional immigration-judge teams and 20 additional attorneys and support staff for immigration litigation in order to speed up removal proceedings.
Local police departments are shaking the cup for more federal funding, but the Trump administration should resist. Federal grants are not new money; they are merely the same taxpayers’ dollars that localities rely on, minus the huge administrative costs of being routed through Washington. Though many departments desperately need more officers and more tactical training, the better way to provide those resources is to lower federal spending mandates and the federal tax burden so that localities can pay for their own policing needs. Chicago mayor Rahm Emanuel is taking the lead in demanding more federal money for social programs and summer jobs. But if government welfare programs were the solution to crime, we would have had crime-free inner cities decades ago.
Only initiatives that are truly national in scope should be federally funded. Research on what works in crime-fighting is a proper federal function, since local police departments lack the money to conduct their own studies. Topics to be explored include: the effectiveness of public-order and hot-spot policing; the relationship between criminal history and recidivism; and the success rate of electronic monitoring. The federal Task Force on Crime Reduction and Public Safety, announced in February, will explore how to improve data collection in order to fight crime more effectively; a crash course in CompStat data analysis would help detect unmet data needs.
The Obama DOJ spent a lot of time talking about police “legitimacy”; by contrast, the Trump DOJ should advocate for more hands-on, scenario-based tactical training that helps officers avoid the need to use deadly force. Officers should be taught how to cope with stress. When cops use foul language, threats, and unjustified force, they are usually overreacting to stress. The current fad for de-escalation training is appropriate, so long as the proposed principles do not jeopardize officer safety.
From dash-cam videos to body cameras on officers, technology plays an increasingly vital role in policing and in public perceptions of policing. Several areas need to be addressed. The cost of storing video from police body cameras has become a huge problem. The federal government could help determine if a federal cloud for storage or a state consortium is the best solution. Washington should encourage departments to adopt lawful surveillance technology such as aerial cameras and family genetic matching to target criminals surgically.
National legislation is needed on encryption. Law-enforcement agencies now fear “going dark” during the surveillance of criminals and terrorists, thanks to encryption. The feds could also help with technology to improve communications (interoperability) between the nation’s 18,000 police departments. Anti-cop activists and anarchists are breaking into law-enforcement communications. Police WiFi was hacked during the November 2014 anti-cop riots in Ferguson, Missouri; the previous month, a radio operator tried to interfere with police movements and air-support operations in the area. Masked Black Bloc anarchists and Black Lives Matter activists will join forces in the Trump era to attack law and order, as happened in the Berkeley, California, riot in early February 2017. Federal and local law enforcement need to up their game in countering such lawlessness; the wearing of masks to facilitate crime must be severely penalized.
The Obama Justice Department ordered more than 28,000 federal law-enforcement officers and prosecutors into “implicit-bias” training—a form of sensitivity reeducation aimed at teaching police how to combat their own (alleged) subliminal prejudices. Attorney General Sessions should cancel this initiative and lift the pressure on local police departments to put their own officers through this wasteful exercise. The claim that policing, especially police shootings, is riven with “implicit bias” is untrue—in 2016 alone, four academic studies showed that if there is a bias in police shootings, it works in favor of blacks and against whites. The Office of Community Oriented Policing (COPS) has partnered with the Office of Violence Against Women to combat “gender bias.” This is another waste of money and should be ended. There is no significant gender bias in American society, and it is not a criminal-justice issue.
The previous Justice Department’s concern with phantom police bias extended to personnel practices. An October 2016 report called for law-enforcement agencies to boost their minority hiring. The report recommended that departments weaken or eliminate their requirements of a clean criminal record in order to make more minorities eligible. This report and the message behind it should be withdrawn. There is no evidence that minority officers are “fairer” in their policing. The Justice Department itself found in 2015 that black and Hispanic officers in Philadelphia were more likely than white officers to shoot an unarmed black suspect based on the misperception that he was armed. Lowering hiring standards, particularly criminal-background standards, is a sure recipe for corruption and incompetence on a police force.
Obama’s Task Force on 21st Century Policing recommended that police departments mandatorily report to the DOJ their race and gender composition. This recommendation should be axed. And any mandated reporting on police activity that includes the race of suspects stopped or arrested should be accompanied by data on racial crime rates in the police agency’s juridiction. Ideally, the word “diversity” would be excised from all federal communications when it refers to race, sex, sexual orientation, or gender identity. Those traits have no bearing on federal programs or on qualifications for federal employment.
Trump is under pressure from conservatives to fire FBI director James Comey for his actions regarding presidential candidate Hillary Clinton’s e-mail server, his refusal to corroborate Trump’s wiretap allegations against Obama, and the FBI’s investigation of ties between Trump associates and Russia. Trump should resist the pressure to fire him. Comey was virtually the only voice in the Obama administration to call attention to the urban crime increase. He also correctly identified its cause because he understands the power of policing. He will be a valuable asset in quelling the crime spike.
Finally, while police officers have an indefeasible obligation to treat everyone they meet with courtesy and respect and within the confines of the law, community members have a reciprocal obligation to obey police commands and not resist arrest. The Trump administration could start a national campaign: “Comply now, complain later.” Such a campaign would publicize the fact that the vast majority of questionable police shootings over the last several years, as well as the justified police shootings, were triggered by the noncompliance of the victims.