The Justice in Policing Act of 2020: A Discussion with Senator Dick Durbin

Episode Notes

Transcript

@thebar

The Justice in Policing Act of 2020: A Discussion with Senator Dick Durbin

08/13/2020

[Music]

Jonathan Amarilio: Hello, everyone, and welcome to CBA’s At the Bar, a podcast where young and youngish lawyers have unscripted conversations with our guests about legal news topics, stories, and whatever else strikes our fancy.  I’m your host, Jon Amarillo of Taft Law, and co-hosting the pod with me today is my friend and now second vice president of the CBA’s Young Lawyers section, Chastidy Burns from the County Public Defender’s Office. Hi, Chastidy.

Chastidy Burns: Hey, Jon. Hi, everybody.

Jonathan Amarilio: So, Chastidy, we’re back from taking a couple of months off the air for summer break and in the spirit of innovation, we’re going to do something a little different today. You and several other wirelessers recently sat down, virtually of course, with United States Senator Dick Durbin. He’s the senior senator from Illinois. He also is the senate’s democratic whip, making him the second most powerful senate democrat, and he sits on a number of committees of particular interest to lawyers, including the Senate Judiciary Committee. First, I just want to say congratulations. You did a really fantastic job with the interview.

Chastidy Burns: Thank you so much.

Jonathan Amarilio: And because you did such a good job with it, we thought we could use it here on the podcast. Now, we’ve repurposed the interview a little bit so that we can add what we hope is helpful commentary and annotation for our audience, but the substance of the senator’s answers are the same thing, so I think it’s important for our audience to know that. Now, before we get to that, Chastidy, let’s put this in a little context. You interviewed the senator as part of a kickoff event for the CBA’s new Racial Justice Coalition, right?

Chastidy Burns: That’s right.

Jonathan Amarilio: So, what is the Racial Justice Coalition?

Chastidy Burns: So, the racial justice coalition has been the Young Lawyers Section’s response to the police brutality and racial discrimination that we’re seeing all over the country, and that we’ve been seeing for a while. Basically, we decided to bring together bar associations and legal organizations and non-profits who are all interested in tackling racial injustice, and we brought them together to come up with some solutions and active plans that we as attorneys can get involved in.

Jonathan Amarilio: And what do you plan on doing in the future?

Chastidy Burns: Well, in the future, we’re planning on focusing on three different areas so that would be service, different pro bono and community service opportunities that are focused on tackling racial disparities and addressing concerns of minority groups, as well as community engagement, and this was part of our community engagement prong, actually, the webcast with Senator Durbin, but we want to build and maintain relationships with local government leaders and community organizers that are focused on promoting social justice and impacting collective action to eradicate racism. And then finally, education, we want to bring these groups together to collaborate with us in creating training and seminars and workshops that are focused on understanding diversity and inclusion and its importance in our profession and within our communities.

Jonathan Amarilio: Outstanding. So, you mentioned the many episodes of police abuse, particularly of racial minorities, and one of the things to come out of the nationwide protest that followed the death of George Floyd in Minneapolis was a bill from congressional democrats called the Justice and Policing Act, which you talked to the senator about, and that seems to represent an effort at reforming the way the country polices itself. But before you got into the substance of the bill with Senator Durbin, I thought you had a really interesting exchange about the 1994 Crime Bill. So, I’d like to start with that history a little bit. I know you know this but as background for our audience, we’re talking about the Violent Crime Control and Law Enforcement Act of 1994, derisively called the Clinton Crime Bill by some, I think although in fairness, it was negotiating congress since the 1980s and at that time, the ‘94 Crime Bill was the largest crime control legislation in U.S. history, spending billions of dollars to build on decades of what were really punitive crime control laws that increase the rate of incarceration at the federal level and the state level, particularly for non-violent drug crimes, particularly for African-Americans, and particularly for African-American men. Now, the ‘94 Crime Bill did that a number of ways, including by toughening already existing mandatory minimum sentencing standards such as the infamous three-strikes rule and by encouraging states to adopt similar standards, and it was really — correct me if I’m wrong, Chastidy, but as I see it, the culmination of decades of similar laws that reflected the failed policy belief that tougher prison sentences will lead to lower crime rates.

Chastidy Burns: Exactly. I thought Senator Durbin did a really good job of putting the current state of society into context as far as how we got here, how did we get here, the war on drugs, mass incarceration, all of those things have kind of culminated into where we are now which is an intense need for police reform.

(00:05:00)

Jonathan Amarilio: So, let’s hear what the senator had to say when he was discussing the history of this.

Senator Dick Durbin: Let me start by just talking about a context here. I have been fortunate enough to be in congress for a number of years and cast a lot of votes, thousands of votes. There’s one I wish I had to do over again and it goes back 25 years-plus, and it was the war on drugs. It was a panicky time on Capitol Hill. Along came this new narcotic called crack cocaine. We were told it was dirt cheap, highly addictive and if a woman took this, used crack cocaine and was pregnant, it could do terrible damage to the baby she was carrying, and so we did something. We reacted. We overreacted. We created, as you know, a gross disparity between the federal sentencing guidelines when it came to crack cocaine and powder cocaine, a hundred to one. The notion was we’re going to hit this so hard in such a decisive way that the message will go out across America, “Stay away from crack cocaine.” Well, we failed miserably, failed miserably. The price of crack cocaine on the street after we passed this law went down instead of up. The number of users went up instead of down, and we started filling the prisons of America, primarily with African-Americans, not just men, men and women, for lengthy, terrible sentences that went on for sometimes decades, not for violent crime but for the sale or possession of crack cocaine. I thought about this over the years. I realized that at the time that we voted for it, that members of the Black Caucus had voted for it and others who considered liberal in the house had voted for it, but it didn’t make any excuse for what we did. And so, I started a few years ago, ten years ago in fact, to try to undo some of the damage that we’ve done. The Fair Sentencing Act was passed into law, signed by the president, then President Obama, and it resulted in thousands of people having their sentences reduced, but it wasn’t enough, and so I continued with the next level when it came to mandatory minimum sentencing and introduced a bill with Senator Mike Lee, a conservative from Utah, as well as Chuck Grassley. I’ll just telescope this into a conclusion. We ended up getting the support of none other than Jared Kushner, the president’s son-in-law who some of you know had a father who served time in prison. Kushner brings that point up immediately after you met him and said, “I want to do something about prison reform.” Well, I wanted to do something about sentencing reform, so we managed to merge it together into something called the First Step Act, which was signed into law by President Donald Trump over a year ago. Kind of miraculous that he would sign anything like that but Kushner was pushing him from one side and we put together a coalition that ended up seeing this passed. As a result of those two things, Fair Sentencing and First Step Act, literally thousands of federal inmates have been released, and they should have been. They were in for just awful, long sentences, and there was no rhyme or reason for it. So, we started moving that way toward justice, but slowly, and it took 20-plus years to realize our mistake and to move forward.

Jonathan Amarilio: So, Chastidy, what did you think of his answer?

Chastidy Burns: Like I said, I thought that his answer really got to the root of how we’ve ended up with this huge disparity in the different races that we’re seeing being incarcerated at this point and I was really interested in his answer about mandatory minimum sentencing because I think it has a lot to do with some of these issues that we’re seeing that necessitate police reforms such as racial profiling, and just seeing offenders and suspects as people rather than as numbers who all have, you know, the same consequences coming to them, so basically with the mandatory minimums, you’re not looking at where a person comes from, you’re not looking at the environmental factors that go into their involvement with the criminal justice system, and that’s the same issue that we’re seeing out on the streets with law enforcement interactions as well, so I thought that Senator Durbin’s answer really, really tied everything together.

Jonathan Amarilio: I agree. I was also surprised by the mea culpa, you know, that he began with, admitting that the ‘94 Crime Bill was, although well-intentioned and voted for by members of both parties, just a really big mistake, you know, deeply flawed, and with very unjust consequences. Then I was impressed by his answer.

Chastidy Burns: I agree. I think it’s so important for lawmakers and people in power to be able to admit their mistakes, because everybody makes them, and conditions are constantly changing. You have to be able to reflect on that and adjust.

Jonathan Amarilio: So, he’d mentioned the Justice and Policing Act, which you got into some detail with when you were speaking with him, and it does a number of things. Let’s roll that clip and then we can circle back and talk about the substance of it.

(00:10:00)

Senator Dick Durbin: So, what we did was to sit down and try to write a bill in response to racism and law enforcement. Many of you work in and with law enforcement and what I’m about to say, you’ll know to be true. I believe the majority of men and women in law enforcement that I know and I’ve worked with are good people. I don’t believe they’re racist by nature. I think they are humane, they’re caring, and they have a sense of civic responsibility, but within their ranks are those who have abused the badge and the gun that they carry, and we know it. In many cases, there are lots of motives behind it, but racism sadly is part of that. The question is what we can do about it, and I sat down with my colleagues. Two of them, I respect very much and you’ll know their names immediately, Cory Booker, who is a senator from New Jersey, and Kamala Harris, the senator from California. We put together a bill and it is a comprehensive bill to deal with this whole issue of Black Lives Matter and changing racism and law enforcement. I’m going to go through it and just read the highlights very quickly. Most of you already know it. We deal with the issue of racial profiling. I had a bill for years which I’ve been working on finally to break through, and we have End Racial and Religious Profiling Act prohibiting state and local law enforcement from racial, religious, and discriminatory profiling. We ban no-knock warrants. We limit the transfer of military-grade equipment. We ban chokeholds and carotid holds. We mandate the use of dashboard and body cameras for federal officers and require state and local law enforcement to use existing federal funds to purchase them. We establish a national police misconduct registry so that if there is a bad cop who is dismissed from the force, he can’t go to the next police department and apply without there being knowledge of the fact that he has been guilty of wrongdoing. We amend the mens rea requirement, federal criminal statutes to prosecute police misconduct from willfulness to recklessness. We reform qualified immunity, one of the hottest issues in the whole litany I’m about to read to you. We create law enforcement development training programs. We require state and local law enforcement to report use-of-force data. Do you know where you have to go today to find out the use of force or guns that are used by police to kill individuals? It’s not a federal registry. It’s the Washington Post, that newspaper decided since nobody was collecting this data, they would collect it, just from news sources over the last five years. That’s got to change. There’s got to be an official report of the use of force and data that we collect around this country. We incentivize states to implement laws requiring independent prosecution of law enforcement. We improve the use of pattern and practice investigations by the Department of Justice Civil Rights Division. We call on the department of justice to establish a training program to cover racial profiling, and we finally, once and for all, include justice for victims of Lynching Act. This lynching issue is such an indicator of where we have been in America, to think that after the Civil War, the incidence of lynching went on, and on, and on, even in the State of Illinois, even in the State of Illinois, and we’re finally going to ban it, as an effort that should have been made many, many years ago. So, where are we? Every major civil rights group has endorsed what I just told you. You pick the name. They’re all there. The Black Caucus has endorsed it. This is the measure that has passed the House of Representatives with speaker, Pelosi, but we’re up against Senator McConnell from Kentucky when it comes to the senate. He does not want to call this bill. He has called on Tim Scott, African-American senator from the State of South Carolina, to put in a different version. Sadly, that version is not as strong as what I’ve just mentioned. In fact, I don’t think it gets close to being strong. We stopped that from moving forward and said to McConnell, let’s bring this up and vote on it. We still only have 47 votes, democrats. If anything’s going to pass, it’s going to take Republican votes as well. Let’s at least have the debate that the world is calling for he has refused so far. I doubt that we’ll do it before we break for the August recess. I hope we can, but it’s really kind of a long shot, highly unlikely.

Jonathan Amarilio: So, Chastidy, there’s a lot there. It sounds like the Justice and Policing Act does a lot of good things, although I know some of them are considered controversial. What stuck out for you there, good or bad?

Chastidy Burns: Well, the first thing that Senator Durbin kind of talked about really stuck out to me which is that most police officers are good officers and they’re good people with good intentions and what came to mind to me was that one bad apple does spoil the bunch, and I thought of the killing of George Floyd and how striking it was that one of those officers there, at least one of them, was so early in his police career and it’s just so important that bills like this one really address nipping that type of conduct in the bud and creating officer training that really imparts the importance of understanding diversity, of proper use of force and things like that, and some of the things that were in the bill also that maybe Senator Durbin didn’t highlight were there were a lot of incentives in the bill addressing diversity in training police officers and diversity in hiring police officers, as well as the importance of having police officers from different places of residence so that there’s a bigger

connection with the community.

(00:15:44)

So, that just — that really struck me, the fact that there are a lot of really good officers but there’s this code of silence and good officers seeing bad conduct that just becomes a huge problem throughout the entire department.

Jonathan Amarilio: And if I remember correctly, he touches a little bit on that later in the interview, how police officers can be empowered to speak out when they see something wrong. Right? Which is very difficult because they’re in almost a military type of command structure.

Chastidy Burns: Exactly.

Jonathan Amarilio: That discourages, you know, saying anything. From a lawyer’s perspective, one of the things that stuck out for me was the idea that we would get rid of qualified immunity, and I’m oversimplifying this when I describe it but it’s essentially the legal doctrine that shields government officials, including police officers, from being personally liable for money damages, for constitutional violations. Right?

Chastidy Burns: Right.

Jonathan Amarilio: And not to nerd out too much but that’s not something we ever shy away from on this podcast, that can be overcome by a plaintiff if the government official’s conduct violated some clearly-established rights, which sounds easy enough. Right?

Chastidy Burns: Right.

Jonathan Amarilio: But it really isn’t in practice. Now, there’s good reasons, and for qualified immunity or at least the policy reasons for qualified immunity sound good on the surface. So, they’re usually — what you usually hear is that government officials could be acting in good faith and their actions are only later for the first time found to be unlawful, so the idea is that it would be unfair to hold them personally liable in that circumstance. You’re essentially eliminating personal liability for what amounts to honest mistakes and the idea behind it is that if you don’t have that kind of protection, you would deter people from public service if they thought that a decision they made, either out in the street as a police officer or in city hall as a politician, could result in them being personally liable, absent something completely egregious, you know, they could lose their house, they could lose their car, something like that, good people wouldn’t go into government. What do you think of that policy reason?

Chastidy Burns: Right, well, we all know that law enforcement is important and we need it, and we don’t want officers out there afraid to, you know, do their job when it’s needed and to protect themselves while they’re doing their job, but I think the overarching important theme here and of this bill is accountability, and these officers have to know that they’re accountable to the public. Like, you said it, they are public servants, and so they have to be accountable for their actions when their actions are wrong, and they do have to have some fear that if they do engage in misconduct, there are going to be serious personal consequences, and I think we need those consequences.

Jonathan Amarilio: Well said. So, let’s listen to what Senator Durbin had to say about it.

Senator Dick Durbin: Well, it’s a question of civil liability. Chauvin now has been charged with civil crimes for what happened in Minneapolis, and will likely be prosecuted for those. But what about his civil responsibility to the family of George Floyd, and what about the City of Minneapolis being held responsible for any part of that? That’s where we get into this qualified immunity situation. So, let me put it in context. I’m not an expert on it but I will tell you my personal experience. Before I was elected to congress, I was a practicing lawyer here downstate. I was in a small law firm and we represented insurance companies, and one of those insurance companies was Liberty Mutual, pretty well-known company, and we defended them in court. So, I was called on one day to defend one of their insured clients, which turned out to be a County, DeWitt County in downstate Illinois. Specifically, I was defending the sheriff of DeWitt County, whose name was Keith Long. He was being sued in civil litigation for misconduct in the court — pardon me, misconduct in jail and the damages that the plaintiff alleged occurred. So, I represented him through the insurance company in the civil lawsuit. That is basically what we’re talking about here, and that is whether or not those who are victims of misconduct can recover in civil litigation. 

(00:20:07)

Qualified immunity is court-created, not statutorily-created defense to these lawsuits for civil damages, which basically argues that you need to point to identical fact patterns, which have been prosecuted before.  Something that is new may be thrown out, because they say it’s barred under immunity statutes.

So, what we’re trying to do is to put an end to that and allow civil recovery.  It seems to me to stand to reason, that if a person is responsible for injuries, damages, even death that they should bear some responsibility to the victims when it comes to this

court recovery. 

Now, many of the people who criticize and say, “Oh, this is the last thing in the world we need.”  We don’t need to take away the lifesavings of the policemen and the policeman’s wife and family, take their home, their car, their Harley.  Well, I can just tell you flat out, I’ve been on both sides of the civil bar, and we never, I never went into a lawsuit looking to take away somebody’s motorcycle, didn’t even cross my mind.  The first question, I always asked, “Do they have an insurance policy?”  You know because you know that there’s a possibility of recovery there.  You’re not in vast overwhelming majority cases ever going to consider going after them in terms of their personal assets, it’s question of insurance recovery.

Now some cities like Chicago are self-insured, and Mayor Lightfoot has talked to me about this.  I think the city, if remember correctly, pays out roughly $10 million in judgments and settlements each year for police misconduct.  I don’t know if it’s exclusively police misconduct for this type of civil litigation.  She is concerned rightly so about opening up the doors of exposure beyond $10 million dollars.  Naturally, she’d be concerned about that.  I’m trying to find a reasonable balance here or a happy medium that doesn’t deny a day in court for civil recovery, but doesn’t go to an extremely other direction.

Jonathan Amarilio:  So, Chastidy, the Senator’s answer touched on a lot of what we just talked about, but it added something that I think was also interesting was this question of public finances, and how that plays into the balancing act that he was talking about, that you and I were discussing.  The idea is, you know that — especially, in the context of police officers if most of them are not judgment proof, then at the very least they won’t have a great many assets that a plaintiff can go after in a civil setting. 

So, if you got rid of qualified immunity, would it then fall on their employer, municipalities, state, et cetera to pay out on substantial judgments in a time when most local governments including the City of Chicago and the State of Illinois are more than broke.  What do you think of that?

Chastidy Burns:  Well, I think that it should fall on the officers, employers at financial loss and exposure is a huge deterrent to misconduct and it’s a huge motivator to make change.  I think that cities and municipalities need that motivation and it needs to be made clear to them that this is a really important issue and that there are going to be consequences if they don’t do anything about it, and money talks.  And so, I think it’s a very important factor and consequence that should fall on these entities.

Jonathan Amarilio:  So, if I hear you correctly, what you’re saying is, it doesn’t only serve to compensate those who are wronged, but hopefully as a deterrent and an impetus for reform. 

Chastidy Burns:  That’s how I see it.

Jonathan Amarilio:  Okay.  So, staying on the theme of accountability, a question came up about policing the police, which I thought was an interesting phrase.  Let’s hear what the senator had to say about that.

Senator Dick Dubrin: First, you need the commitment of the Chief Executive.  I think this mayor who has been outspoken on the issue of police reform for a long time, is in the right frame of mind for real change and reform.  If there’s resistance at the top politically, I think it’s hard as heck to see that many of the environments change in these police departments, but I think she is committed to it.

The second one is a little more subtle, but I think it’s very important to mention here, and that is change within the department.  When Mr. Floyd died, there were four police on the scene.  Chauvin, we see with his knee on his neck, but there are three other policemen holding him down.  One of those policemen was on his third day on the job, an African-American policeman.

So, I talked to experts and I say, “What should have happened there?  What could have happened there that would save his life?”  Well, there are a lot of answers, but one of the answers calls for peer intervention.  Now, peer intervention means that the other patrolman said to Chauvin, “Stop.  You got him under control.  Let me tap you out here, buddy, I’ll take over.

(00:25:00)

This could be damaging.  It looks like, he’s having trouble breathing and such.”  It didn’t happen, and there were reasons it didn’t happen.

Imagine your third day on the job at your law firm, or wherever you’re working when you say to one of the senior partners, “Stop.  That’s a bad decision you’re making.”  You know, “Who are you and when did you arrived?  How do you happen to know this?”  Now imagine in the ranks of police, and that’s what happened with this one person.  Part of the problem is that the police departments are constructed on a military basis chain of command, actual ranks that sound like military ranks.  The notion that someone who just walked through the door or is a buck private or a corporal is going to call out someone at a higher rank is a big leap, to think that they would do that.  But if peer intervention is going to work, and it has to be part of the solution here.  We’ve got to find ways to make that come together.

So, at the top when it comes to pattern and practice, and at the bottom when it comes to this military style, we’ve got to find new ways to approach police reform.  Can I add one thing?  I mentioned it earlier and it bears repeating.  When I talked to the chiefs of police, they tell me two things have been going on in the last seven or eight weeks since George Floyd.  They’re having a surprise number of people in police who are announcing their early retirement, they’re leaving.  Secondly, morale is at the lowest point I’ve seen in modern memory.  I can understand that.  You could too if you were in policing at this point, after all the things that have been shown on videotape and the like.  I always try, and I said it earlier and I’ll repeat it here, to make the point that I think the vast majority of those people in law enforcement are good people.  Literally, risking their lives for us every single day.  The bad ones have to go, but let’s tell the good ones, “You’re doing a good job,” that’s important. 

Jonathan Amarilio:  So, Chastidy, what did you think of his answer there?

Chastidy Burns:  I thought it was definitely a great start.  I had mentioned that young officer who was new to the job as well, and it’s just a shame to see somebody put in that position where you’re supposed to call out your superior, but that type of intervention has got to be encouraged. 

Another thing that came to mind, when Senator Durbin said that it’s important to police police, is thinking about what happens after these arrests occur out on the streets, is that these charges end up in court.  Officers who are not following the rules, who are engaging in excessive force or maybe not turning on body cameras and things like that, that just encourage this type of behavior.  That needs to be police in the courtroom as well.  That might be a bigger and longer conversation but there have to be consequences as far as what happens with a criminal case when officers don’t use body cameras, when officers engage in brutality out on the streets.  So, that’s something that I thought about as well.

Jonathan Amarilio:  So, Chastidy, speaking of policing the police, one of the things that has come out of the protest following the death of George Floyd was this concept of defunding the police as a measure of reform.  You asked the senator about that.  Let’s hear what he had to say.

Senator Dick Dubrin:   I think that’s truly an unfortunate phrase.  Taken literally defunding the police, taken to us extreme means that you dial 911 and nobody answers.  Well, no one wants to see that happen.  We understand the importance of law enforcement, and we understand there are some things that they’re called on to do that no one else will do. 

Just a few weeks ago, a man took a handgun to a local manufacturing concern here in Springfield, Illinois and killed three people.  It was reported to the police department about 11:05.  Before 11:07, a Springfield policeman responded gun in hand to deal with the situation.  Who else would have done that?  No one else would have done it, only the police in law enforcement.  Having said that, there are things we call on law enforcement to do that are beyond their training and expertise when it comes to keeping order.  They view it from a law enforcement perspective when in fact it may be more than anything a mental illness issue, and they are not largely trained to recognize it or trained in dealing with it.

So, I think when I hear and defund the police is to make sure that we divest from law enforcement resources that can be spent more effectively by other than law enforcement agencies, such as mental illness, dealing with mental illness, that’s a classic example.  Domestic violence, domestic violence can be violent and can be deadly, and that’s why the police are calling the scene.  But when they tell you about how many hours they waste as two people are bickering and hollering at one another, when they should be dealing with crime itself.  You understand that perhaps there should have been some other entity with an intervention that might have brought peace to their household without taking up the time of a law enforcement agent.

(00:30:02)

So, when it comes to defund the police, I quickly reject it, and say, “If you’re talking about making the police more effective, recruiting the right people, training the right people, reviewing the conduct of policemen, so the they continue to do the right thing, count me in.”  But when it comes to finding things that they’re called on to do that others can do more effectively, I would take that out of the police department and put into another institute.

Jonathan Amarilio:  So Chastidy, that strikes me as a very reasonable and balanced approached, but I know people have different views.  How did you take it?

Chastidy Burns:  I completely agree with the senator’s interpretation of what defund the police should mean.  I think it’s really important for law enforcement and government agencies to do a better job of assessing what the community’s needs are.  The senator mentioned a lot of those, which is mental health intervention and maybe drug intervention.  A lot of times, police arrive to a scene and someone might be high on drugs and they may not know how to react to that.  There may not be criminal conduct at the onset of that interaction, but then there might be later, because it escalates. 

So, I think what defund the police should mean, is that we’re giving more resources to social services agencies that are better equipped to deal with those types of interactions that don’t necessarily require law enforcement.  I think it also would free up police officers to be dealing with violence and situations where they really are needed.

Jonathan Amarilio:  I completely agree.  You know, I work with police officers quite a bit in my practice.  I’ve had them tell me on numerous occasions that they don’t like being the first responders to those kind of mental health situations even when they have training, they don’t feel really equipped for it.  So, the idea of diverting resources for that kind of thing, non-violent situations, would make a lot, and I think that could be an easy sell for a lot of police officers and police departments it it’s explained correctly.  But I would tend to agree with the senator that the label is misleading. 

Chastidy Burns:  Yeah, the label is definitely alarming.  He also specifically mentioned domestic violence, and I was assigned to the Domestic Violence Courthouse, here in Cook County for a while and I can definitely attest to the fact that a lot of those incidents don’t start off requiring police intervention.  We might even want to provide more resources to mediators who can go to the scene, or focus more on restorative justice, which the senator also did bring up during the webcast.

Jonathan Amarilio:  Good points.  So, another thing that you talked to him about was the need for balancing police reform with spiking violent crime rates, particularly in cities like Chicago.  You are a PD, you’re on the ground, you see this kind of thing every day.  So, let’s hear what the senator had to say about it and then definitely come back to you for your insight. 

Senator Dick Dubrin: Okay.  I’m going to try to give you the short version of this answer, because people came to me and said, “Durbin, you’re a big shot.  You got a title.  You work in Washington.  You’re in Capitol Hill.  We see you on the Sunday Morning Talk Shows.  What are you going to do about gun violence in Chicago?”  I said, “Well if I had my way, here’s how I would change background checks.  Here’s what I do about straw purchases.  Here’s what I do about assault weapons.”  But having said that, let me be honest with you, it’s not going to happen.  This president would never sign any of the bills we’ve just described to one another.  It’s unlikely any would pass in the Republican Senate.  They looked at me and say, “Well, what a waste of time to talk to you about this.” 

So, what I did was, and many of you know exactly what I’m talking about here.  I decided to go to the Cook County Juvenile Facility over near California Avenue and to tour it a few years ago.  What I found was, and many of you already know this, is that many of these adolescents, teenagers who were being held for trial dealing with gun violence, manslaughter or murder are held in that facility for a long time, months sometimes years before the case actually goes to trial.  What happens to them while they’re in there?  They go to high school.  There’s a high school inside there.  There’s a cafeteria, classrooms, gymnasiums, they go to high school inside.

So, I went there and I sat down with their teachers and counsellors.  None of the other young people were there, and I said to them, “Who are they?  Who are these gang bangers and shooters?  You know they came to the earth in the usual way, how did they become these people that would spray a crowd of people, or a car with bullets and kill innocent little babies and infants and children and grandmothers.  What brings them to this point?”  And they said, “Well, the counseling that we’ve done say that they have all series of mental challenges,” almost everything written in the book.  But 92% of them have either been victims of violent trauma or have witnessed it and lived in a household with this trauma.

Now the trauma is a generic term.  For some of you have studied it, adverse childhood experiences. 

(00:35:00)

This is a list of 10 of them.  They were developed about 20 years ago.  If you take that young person who has used that gun and asked those 10 questions about whether their household is dysfunctional; have you been a victim of violence?  Have you seen violence on someone else?  Is there someone in the household who is addicted?  Do you have a steady regular reliable place to stay?”  When you go through that list after you’ve checked the fourth or fifth box, you know what’s going to happen.  If there’s no intervention in that young life, they are going to find other leaders and mentors.  Sadly, many of those were gang members.  Surely, long answer, but Chastidy to the bottom line it says, “We need to be thinking about what’s going on in the schools?” 

The schools are where they most likely identify these young people.  At a stage in their lives where something has gone wrong, and the question is; What did they do next?  When I speak to teachers the teachers, the teacher said, “Senator, I teach math.  I’m not a psychologist, I’m not a counselor, but I can tell you when their kids having problems, I know it.  Now, you tell me what I should do with that young person?” 

In many instances, there’s no school nurse, there’s no school counselor, there’s no path to move them out of the mess that they’re in into a more stable existence.  That, I think, is key to dealing with gun violence in Chicago.  It’s not an immediate end-the-violence-next-weekend, but if we’re going to change that next generation of shooters into something else, we got to think about interventions in their lives.  They’re not loss lost forever, they’re not.  The right mentor, the right role model, the right person who cares could be a teacher, could be somebody in the family, could be a minister, could be a coach, can really move them back toward a better life.  But without it, sadly, they progress to where we see here today and the shooting continues.

Jonathan Amarilio:  So Chastidy, that was a long answer but it’s certainly complicated question.  I think the answer could have been a lot longer.  But just to summarize, the senator basically said, “Look — he’d love to start with gun control, right?  He thinks that could solve a lot very quickly, but that’s politically untenable.  What we really need to do is look at the deeper causes of violent crime, more interventions at schools for kids who are at risk, more programs, establishing positive role models, mentorships, that kind of thing.  He didn’t say this, but I thought my take away from it was just sort of fulfilling the unfulfilled promise of the great society.  That sort of just struck me as the direction that he was going with it.  What did you think about that?  Give it all your experience as a public defender seeing this kind of thing day in and day out; One, do you think that’s right? two, do you think it’s achievable?

Chastidy Burns:  Yeah.  So, as a public defender, I definitely do really get to know a lot of these clients that I work with on these cases for years.  You do get to learn that a lot of issues that land you in the criminal justice system do start from a home life or from trauma that you’ve experienced as a child or as a young adult.  I think what Senator Durbin was getting at was that; We all need a better understanding of how people end up in the system; What external factors contribute; and how we can address those underlying external factors to prevent the violence?

The first thing I thought of was that maybe law enforcement needs to somehow come to a better understanding of the people that they’re serving and the communities and what drives them, and how we can rebuild trust between law enforcement and citizens, taking into account the things that they’re going through in their communities.  I think that can start with, like I was saying before having police officers who look like the people in their communities.  Having police officers that are committed to coming up with solutions to gun violence, that focus on rebuilding trust and strengthening relationships.

For example, a lot of gun violence goes unsolved or unaddressed because it’s hard to come up with witnesses for a lot of these offenses.  Why is it hard to come up with witnesses?  Because people don’t want to talk to the police, because they don’t trust them, because they feel like they don’t understand them.

So, I think a lot of the issues even with solving crimes that come from gun violence stem from this lack of trust and low morale between community members and law enforcement.

Jonathan Amarilio:  So, Chastidy, one of the things that the senator mentioned in his answer to your last question was the intervention in schools.  One aspect of that that started several decades ago was putting police actually in schools with the hope of deterring violent crime in schools and around schools, and keeping kids safe.  That has lately become a controversial idea with some people thinking it actually has the opposite effect, and creates an adversarial relationship between students and police officers that is not helpful to anyone down the line.  Let’s hear what the senator said about that.

(00:40:01)

Senator Dick Dubrin:  So, one of the red hot areas of gun violence is Austin.  A few years ago, I went to I think was the high school in Austin and it is a two-story building, and the upper floors were then occupied by the Cook County Sheriff’s Department as a training facility.  So, there were sheriff’s cars in every direction, and when you went into this school, which is in one of the hottest sections of gun violence.  There was a metal detector there for every student who walk through the door.  When the classes were dismissed at the end of the day, the local sheriff’s deputies fanned out for two blocks radius around the school to protect the students literally leaving the building from being shot when they walked out on the sidewalk.

So, you say to yourself, “Well, do you need metal detectors at that school?”  I’m sorry to say you do.  “Do you need police protection at that school?”  I’m afraid we do.  But the question obviously is, “Has this been abused?”  Many of you know what’s known as the school to prison pipeline.  I was not a perfect student when I was a kid, pretty close, but I wasn’t a perfect student.  I went to catholic schools and those nuns knew how to deal with people like me, some simple things like filling a blackboard with things after school, or some other things like a smack here and there, maybe that went too far.  The point I’m getting to is, there are ways to discipline students that don’t necessarily mean would lead to taking them to police stations.  Once you have taken a child out of class, third, fourth, fifth grade into a squad car while other students are watching, they are kind of branded at that point within the school, watch out for so-and-so, you know he was taken away in a police car, tell their mom and dad about it and so forth.

The chances that that kid is going to be able to reclaim respect in that environment is tough, and some of them end up being charged with criminal misconduct, when it may not be necessary for that purpose.  It’s a heck of a thing to start your early life with that kind of situation hanging over you.  So, I really believe like most things this is a decision for locals to make based on the students, their families, the teachers the administrators, safety first whether it’s public health or law enforcement, and public safety.  Safety first, but we should try to demilitarize the police, if that’s worth it, this environment as much as we can.

Jonathan Amarilio:  So Chastidy, what did you think of his answer?

Chastidy Burns:  So the story that he told at the beginning of that clip, I think was a great example of what I think the important concept is here, which is a difference between police protection in schools and police presence.  I think that having you know uniformed officers and all of these metal detectors, and basically a show of force from law enforcement shows a lot of distrust in the students. It kind of relates to another part of the justice and policing act, which is this issue of bringing military equipment into communities. 

If you have an aggressive response like that from law enforcement whether it be in schools or in our communities, then you’re showing this distrust, you’re going on the offensive, and you’re making the people that you’re responding to go on the defensive, when I think there should be more of a focus on de-escalation and creative solutions to law enforcement interaction.

Jonathan Amarilio:  Did you agree with the senator’s final thought, which was that whether to have police in schools and probably also the degree to which you should have police in schools should be made at the local level, perhaps even at the school board level?

Chastidy Burns:  I do.  And it goes back to my point where we need to be assessing people as people and individuals, and assessing particular environments and what their specific issues are, I think that the people right there on the ground are in the best position to assess their needs.

Jonathan Amarilio:  Okay.  So, circling back to the beginning, the senator touched on this a little earlier in your interview, but he came back to it, and I think it’s worth repeating.  He discussed the chance of the justice and policing act actually becoming law.  Earlier he said he thought that was remote because of resistance in the Republican-controlled senate and because of the current administration.  Although, I don’t know maybe if Kanye asked President Trump to sign the bill he would.  He came back to this and I’m sure there’s — I think there’s a reason for it.  So, let’s hear what he had to say.

Senator Dick Dubrin: It’s already passed the House.  I think a long shot that it would pass in the Senate if we were sent to the President in its current form, I believe he would veto it.  So, I don’t think that it’s likely to be resolved this year.  After the election with perhaps a different president, I think it can be resolved. 

Jonathan Amarilio:  And he also discussed a little bit the differences between the Democratic House Bill and the counter bill that’s emerging in the Republican Senate.  Let’s listen to that clip really quickly too.

(00:45:06)

Senator Dick Dubrin: Well there’s some basics.  Let’s start with the obvious.  Banning chokeholds and carotid holds it seems so obvious after what we’ve seen with George Floyd.  The language that was included in the Tim Scott version is not nearly as comprehensive and complete. 

When I asked him about it, “Why the differences?”  He seemed to be open to change, but that is the starting point where there is a real difference when it comes to no-knock warrants.  I think we’re much more comprehensive in the approach we take, and with the Breonna Taylor case, you can understand.  We include the banning of racial and religious profiling, which I think is not included in there and it should be.  Transferring of military-grade equipment, we learned after Ferguson, Missouri.  There is no reason to bring in armored personnel carriers into that suburb of St. Louis because of the racial incidents that were going on there.  It tended to escalate the situation. 

National police misconduct registry, another thing that even the chiefs of police that I’ve talked to in our state, they say, “By all means do that.  We don’t want to hire someone who is danger to our own law and order in our community.”  So, across the board, and of course when it comes to the whole question of qualified immunity.  That is the one major sticking point here in terms of the civil liability for misconduct of a policeman, or the police department, or city or county that they work for.

Jonathan Amarilio:  So Chastidy, what did you think of what the senator said about the current political situation, and the likelihood of it passing?

Chastidy Burns:  Well, I think that it’s very problematic that it’s possible that our government is going to wait for the next administration to address this bill.  I do understand that there are huge differences between the Republican bill and the Democratic bill that need to be ironed out.  But I think it’s also dangerous to assume that we’re going to have a new administration.  I think we saw what happened with that in our last presidential election, and these reforms are so urgent.  So, I hope that that’s not going to be the case.

Jonathan Amarilio:  Well, if the President’s recent comments about delaying the election are any indication.  Let’s end this thing on the same kind of empowering note that you did.  You asked the senator about what lawyers can do to support the justice and policing act, and just to help with these issues that it’s meant to address generally.  Let’s hear what the senator had to say about that.

Senator Dick Dubrin: We’ll reach out politically and let them know what you think.  Let congressmen and members of the Senate know and tell them you’re impatient, you want to get something done and done quickly.  Let me go back to the point I made earlier, use your law license to become part of the solution here.  Volunteer your time whether it’s on the civil side or on the criminal side, to get into the courtroom and make sure that justice prevails in this litigation.  Too many people particularly the poorest people in America don’t have legal representation, they need it. 

Jonathan Amarilio:  What do you think?

Jonathan Amarilio:  I think he’s right.  I’m hoping that the racial justice coalition that we’ve created with the CBA, the example of what attorneys can do and we have a lot of power, we have a lot of skills that other people don’t necessarily have, like a law license.  So, I think there’s a lot we can do and hopefully people are going to be motivated by current events to use our resources to make a difference.

Jonathan Amarilio:  I think that’s exactly right.  Not only do lawyers write most of the laws, either because their politicians or because they’re acting as lawyers working for those politicians, but also we can do everything in our everyday lives.  I know the Illinois Supreme Court just started a pro bono criminal defense program for criminal appeals where they’re asking Illinois attorneys to help the office of the State Appellate Defender clear its years-long backlog, which is meant to address some of the issues that we’ve been discussing here today.  There are some cases where people are convicted of a crime, serve out their entire sentence before their appeal is even decided, so even if they win their appeal they don’t get a lot of real world relief in the end.

Chastidy Burns:  Right.

Jonathan Amarilio:  All right.  I think this conversation has been serious enough for one day.  We’re going to be right back after a quick break with Stranger Than Legal Fiction

[Music]

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(00:50:07)

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[Music]

Jonathan Amarilio:  And we’re back.  Stranger Than Legal Fiction.  You know the rules very well, you and I, hopefully.  You as well, yes?

Chastidy Burns:  Yes.

Jonathan Amarilio:  Okay good.  I have done a little research.  We’ve found one law that is real and on the book somewhere, but probably shouldn’t be.  And we’ve made another one up, and we get to quiz each other this time because the senator is not here on which one is real and which one isn’t.  It’s a head to head match up.  Chastidy, why don’t you lead us off.

Chastidy Burns:  Okay, I’m ready.  So, number one, In Virginia, tic-tac-toe must be played by using blue or green chalk only if played on the public way.  Got that one.

Jonathan Amarilio:  Got it.

Chastidy Burns:  Okay.  Number two, In California, a frog that dies during a frog jumping contest cannot be eaten and must be destroyed as soon as possible.

Jonathan Amarilio:  Second one is real.  I know that law.

Chastidy Burns:  Why would you know that law?

Jonathan Amarilio:  Are you not current on your amphibian law?

Chastidy Burns:  I’m not.  I’m embarrassed, but I’m not.

Jonathan Amarilio:  I mean we have a lot of extra time because of this pandemic.  That might be something you want to brush up on.

Chastidy Burns:  I’ll get right on that.  You’re right that one is real.  This health code likely made its way into the books to protect competitors at the Calaveras County Fair and Frog Jumping Jubilee.  That sounds like fun.  A decades-old tradition in the gold mining town of Angel’s Camp.  Tourists and jockeys compete to see how far their frogs can leap.

Jonathan Amarilio:  Jon 1, Chastidy 0.  Here’s your chance to tie it up.  Are you ready? 

Chastidy Burns:  Nice work.  I’m ready.

Jonathan Amarilio:  All right.  Option number one, Arkansas law regulates the pronunciation of the state’s name, stating that the only true pronunciation is that received by the French from the Native Americans, and is pronounced in three syllables with the final “s” silent, the “a” in each syllable with the “Italian” sound, and the accent on the first and last syllables.  That is option number one.

Chastidy Burns:  Okay.

Jonathan Amarilio:  Option number two, in Illinois, it is considered a violation of the Code of Judicial Conduct for a judge to be friends or otherwise directly connected to a practicing lawyer who does currently have or is likely to have a matter pending before that judge.

Chastidy Burns:  Well the Arkansas one is real.

Jonathan Amarilio:  Why?

Chastidy Burns:  Because it was way too specific to be fake.

Jonathan Amarilio:  Yeah, I was wondering that. 

Chastidy Burns:  Sorry.

Jonathan Amarilio:  Here’s what I was struggling with.  I knew that would happen, but those details are so ridiculous I couldn’t leave them out.  A’s with the “Italian” sound.  Like what?  This is actually a law — okay, whatever.

Chastidy Burns:  I didn’t know Arkansas was that fancy. 

Jonathan Amarilio:  Yeah.  I’m holding back on the snark.  That’s going to be our show for today.  I want to thank our quasi-guest, U.S. Senator Dick Durbin for this interesting timely and important conversation.  I also want to thank my co-host, Chastidy Burns for joining me for her great sit down with the senator and for her work with the racial justice coalition. 

I also want to thank everyone here at the CBA who makes this machine run, including our executive producer, Jen Byrne, Ricardo Eslis on sound, Adam Lockwood on sound as well, and everyone at the Legal Talk Network family.  Remember you can follow us and send us comments, questions, episode ideas, or just troll us on Facebook, Instagram and Twitter @cbaatthebar, all one word.  Please also rate and leave us your feedback on Apple Podcast, Google Play, Stitch or Spotify, or wherever you download your podcast that helps get the word out.

Until next time.  For everyone here at the CBA, thank you for joining us and we’ll see you soon @theBar.

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