Vanita Gupta on How to Reform the U.S. Police

CHRISTIANE AMANPOUR: Now, as America continues to wrestle with racism and police brutality, we turn to someone who’s a major player in criminal justice reform. She is Vanita Gupta, who is a civil rights lawyer. And she was acting Assistant Attorney General under President Obama. She led the investigation into the Ferguson, Missouri, Police Department, after the fatal shooting of Michael Brown six years ago. And, today, Gupta heads the Leadership Conference on Civil and Human Rights with a mission to protect the rights of all Americans. And she’s joining our Hari Sreenivasan now.

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HARI SREENIVASAN: Thanks, Christiane. Vanita, when you see the news and you see peaceful protests by day turn into something else by night, what goes through your mind?

VANITA GUPTA, FORMER ASSISTANT U.S. ATTORNEY GENERAL: I am really concerned about the message of honoring Mr. Floyd’s life getting lost. I’m concerned about the incredible militarization that we’re seeing on the streets right now that could actually provoke violence and losing the message that I think protesters, the vast majority of protesters, are trying to show, which is that we have been through this cycle of violence and outrage too many times, and that the enough is enough. And so, right now, in Washington, D.C., it feels like an occupied zone, when protesters — the irony here being that they are protesting police brutality, but it looks like the government is using police brutality and militarization as a response to these protests. I don’t see how it builds trust.

SREENIVASAN: The police are going to say, listen, if we let fires continue or perhaps looting continue, this will only empower others to come out, it will create more lawlessness.

GUPTA: Of course, law enforcement has to get involved where property is being burned or there’s looting and violence, but the response that we are seeing on the streets right now is not proportionate. It is not safe. It is a demonstration of military force that is so beyond what is happening on the streets. And it really looks like the attorney general has deputized himself to be a general of this mishmash of federal agents from across different law enforcement components. They are showing up in the streets without actual training in mass — in managing mass protests. They’re showing up in the streets, some — many of them wearing tactical gear without any form of identification on them. These are bad practices for law enforcement. This is something the Justice Department actually addressed in Ferguson when the Ferguson Police Department was showing up in the streets after Michael Brown was killed without I.D. and the like. These are — these are scary times, not just because of what happened to Mr. Floyd and the long cycle of violence and police-related violence and the issues underlying all of this, but also, I think, more fundamentally, for our democracy.

SREENIVASAN: You ran the Office of Civil Rights for the Department of Justice for about three years after Ferguson. You started your job right after that, I remember, during the Obama administration. You put in place some of the checks for constitutional policing, some of the checks on different police departments. We will get into what happened to those. But explain one of them, which was looking at patterns and practices. What does that mean?

GUPTA: So, the Justice Department has a range of different tools to use in — to reform and ensure constitutional policing. One of them is one — is the only one that the Justice Department has invoked so far out of Mr. Floyd’s death, and that is a criminal investigation, which they are conducting, of individual — of the individual officers that were at the scene. But the other big kind of prominent tool that people often talk about is the pattern and practice authority that Congress gave to the Justice Department in 1994, in the aftermath of the Rodney King beating and the unrest in Los Angeles, gave the Justice Department the mandate to investigate systems, patterns and practices of unconstitutional policing and police departments, and then the mandate to rectify these unconstitutional systemic issues where the Justice Department finds them. It’s a tool that is very judiciously used for a country of 18,000 police departments by — I think, during the course of President Obama’s eight years, there were 25 investigations. And by the time I stepped down, there were 15 consent decrees. But these consent decrees actually become documents that model best practices and some of the kind of most emergent best practices around the country that other police departments look to, to adopt. And this is a tool that the Trump DOJ, that Jeff Sessions and now Bill Barr have completely walked away from. They have opened only one pattern and practice investigation into the narrowest of issues in a department in Springfield, Massachusetts, but, otherwise, have completely walked away from this work. They have gutted the use of consent decrees as a tool that the Civil Rights Division has to remediate systemic issues. And they have undercut not only kind of the tools that the Justice Department has, but, with their rhetoric, this notion that trust, community-police trust is essential for public safety. They — their rhetoric has actually really inflamed the tensions and divisions.

SREENIVASAN: Somebody’s going to watch this interview and say, look, she was running the division on civil rights. She was in the Department of Justice. Why wasn’t the Obama administration able to do more?

GUPTA: So, we did a lot, but it wasn’t perfect. We were still kind of midstream on the work that we had to do. But understand this. So, I was accused of having too aggressive of an approach around policing. But I met all the time with law enforcement. I met with police officers. I met with mothers who had lost their sons to police violence. And we went in and used our investigative authority, I think, entirely appropriately. But we also had a lot of other things going on in the Obama Justice Department. You had Attorney General Holder, who was trying to, through his Smart on Crime initiative, change federal prosecutorial charging culture across the country to remove the way — the kind of reliance on mandatory minimum sentencing that was resulting in people spending years and years and years in federal prison, outside of any public safety rationale. You had the guidance to limit and curtail the militarization of police and the transfer of military equipment to local law enforcement, the guidance to end the reliance on private prisons in the federal prison system, the guidance to stop the use of solitary confinement in almost — in most cases in the federal system, the guidance to stop the use of fines and fees in the criminalization of poverty. Every single one of the things that I just talked about was withdrawn and/or the tool and the work was entirely halted. So, we aren’t, though, going to do — able to do enough if all we are aiming at for is to reinstate these things. We’re going to have to actually adopt an even bolder approach. But I — there was a lot that was happening that was entirely yanked back. And we have a president, as you well know, who has also encouraged in speeches police violence, encouraging in 2017 police to rough up suspects when putting them in police cars, the attorney general, who said, if people want to criticize the police, they may not receive the protection of law enforcement. That kind of stuff has a really powerful impact on corroding the kind of relationship between law enforcement and communities, and certainly takes away the pressure that was being brought to bear to — for police departments to adopt best practices. Thankfully, there are a lot of progressive police chiefs that understand why they have needed to continue this work, even in the absence of leadership from this Justice Department and the administration. But it is – – it takes time, and we aren’t going to solve these problems overnight.

SREENIVASAN: Just getting back to the Department of Justice for a second, Attorney General Sessions’ argument for narrowing the scope of consent decrees was, if I understand it correctly, that it deprives the elected representatives that are in those jurisdictions to control their own government, sometimes these consent decrees go on for too long, that they didn’t have a clear end. What’s wrong with his rationale?

GUPTA: So, that’s not true. Let me break this down a little bit. So, consent decrees are a monitor — the whole — what is a consent decree, first of all? The Justice Department goes into a jurisdiction, conducts an investigation. It can take anywhere from six months to a year, going through every document in a police department, interviewing hundreds of community residents, interviewing hundreds of police officers, will come up with a findings report. And if the findings reveal an unconstitutional pattern or practice of police misconduct or systemic problems, well, then the Justice Department will begin to negotiate with the city for a consent decree that becomes a document, a settlement agreement, that is filed with a federal court. And a federal judge then has to monitor, with a whole independent monitoring team, compliance, and will determine when a police department has changed its practices and is now complying with the Constitution. That process usually takes a few years at least. But, typically, these consent decrees are about three to five years’ long. And a federal judge is actually dealing in data and is getting data-driven reports from monitors about the changes — the impact of changes that are getting made, from everything from policies to practices to training and the like. And so these are not infinite, unending consent decrees.

SREENIVASAN: So, when you have those consent decrees on police departments or jurisdictions or cities, did they work? Did you get buy-in from the police chiefs?

GUPTA: Oftentimes, we actually found that the police chiefs needed us and wanted us in. It was — and mayors too. So, if you think about Baltimore, in the aftermath of Freddie Gray’s death and the unrest that ensued in the city over the course of several days, it was the mayor and the police commissioner that said, we need the Justice Department in Baltimore to help us. These issues have been going on for not just years, but decades. And they felt like this kind of intervention was going to be needed to kind of quell the community unrest, to make people feel like change might be around the corner. It’s not a perfect process. It doesn’t resolve every problem in a police department. There is no such thing as a perfect police department. But I want to say one thing about this, and I think this is important and this is what makes this moment a little different, which is that it is become very apparent, that, to me, at least, and I think to a lot of other people, that we will not be able to actually have meaningful police reform by working within police departments alone. And that, a lot of times, what we’re seeing in places like Minneapolis, Chicago, Baltimore, Ferguson, Seattle, Cleveland, all of these different places that have been really kind of hot spots for community-police unrest is that the policing issues are the tip of the spear, and that we as a country, have, for decades, really kind of adopted a criminalization model, in criminalization as social policy for so many things. That’s why we have seen the kind of growth in arrest rates, the massive growth in our prison system, mass incarceration, and that, without actually addressing the divestment in communities in terms of jobs, education, public transportation, health care, and the overinvestment in the criminalization model and all of the infrastructure that exists around that, we actually are never going to have meaningful police reform.

SREENIVASAN: Is there a department that has turned things around, that has looked at the consent decree, the reports, and said, OK, this is what we’re going to have to do, here’s how we can fix it, and now has better outcomes?

GUPTA: Yes, there are. And I — New Orleans, Detroit are wildly different places than they were before. Are they perfect? No. Are there still tragic incidents and systemic problems that exist? Yes. A consent decree can’t solve everything. But what it can do is actually, over the course of several years — because changing policies is one thing, and you need to change them. We have — the Justice Department had gone into jurisdictions that didn’t have updated policies on use of force, were using old Fourth Amendment jurisprudence to guide how they were conducting stops, searches and arrest. So, yes, you need policies. But it takes years of investment, leadership, law enforcement leadership, political leadership, community leadership, to actually be engaged in trying to overhaul the way a police department and public safety is conducted in a community. What I will say is that this intervention model of only engaging within police departments is not going to be the whole answer. And I think a lot of people — as I said, a lot of folks in law enforcement actually speak to that issue. They are — a lot of social problems have been put at their feet. And in a lot of communities, the only response that community members have to seeking help is a 911 call. And that is because we have divested from mental health services, from other kinds of interventions that exist. In a place like Seattle — I want to get concrete — one of the major changes that we made, that the Justice Department made when they were in Seattle was actually changing the way that police officers would respond to a call about a person in mental health crisis. And it was — it involved a collaboration with mental health professionals, who would arrive at the scene as first responders with police officers, and actually engage in immediate de-escalation with police officers who had been trained, totally trained anew in de-escalation. And it changed the outcomes in how arrests were being made and acts of violence and use of force against people in mental health crisis. We repeated that model in Cleveland, where there was a real systemic problem around police violence against people in mental health crisis. So, you can see — I mean, that’s just one little index that I’m talking about. There’s been these studies. I think we need to do more in the science and the data. We don’t have any the kind of data that the United States of America in 2020 should have. The government still is not systematically collecting data to know how many people have died at the hands of law enforcement. We have had to have media, “The Guardian,” “The Washington Post,” you know, other reporters and activists actually start to pull this together. And the FBI is beginning to. But there’s no reason for that. And the data will help actually inform both the problems, but also the effectiveness of the solutions, such that we can scale those.

SREENIVASAN: Vanita Gupta of the Leadership Conference on Civil and Human Rights, thanks so much for joining us.

GUPTA: Thank you.