Rachel Harmon on Policing (Ep. 98)
Long before becoming a legal scholar focused on police reform, Rachel Harmon studied engineering at MIT and graduate philosophy at LSE. “You could call it a random walk,” she says, “or you could say that I’m really interested in the structure of things.” But despite her experience and training, even she can’t identify a single point of leverage that can radically reform the complicated system of policing in America. “We have been struggling with balancing the harms and benefits of policing since we started contemporary departments, so I don’t think that we’re going to suddenly fix this by flipping one lever.”
She joined Tyler to discuss the best ideas for improving policing, including why good data on policing is so hard to come by, why body cams are not a panacea, the benefits and costs of consolidating police departments, why more female cops won’t necessarily reduce the use of force, how federal programs can sometimes misfire, where changing police selection criteria would and wouldn’t help, whether some policing could be replaced by social workers, the sobering frequency of sexual assaults by police, how a national accreditation system might improve police conduct, what reformers can learn from Camden and elsewhere, and more. They close by discussing the future of law schools, what she learned clerking under Guido Calabresi and Stephen Breyer, why she’s drawn to kickboxing and triathlons, and what two things she looks for in a young legal scholar.
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TYLER COWEN: Hello, everyone. I’m speaking today with Rachel Harmon, who is a professor of law at the University of Virginia. She is director of the Center for Criminal Justice and one of the nation’s leading experts on policing. Rachel, welcome.
RACHEL HARMON: Thank you.
COWEN: Simple question. Why is the United States so bad at gathering data about its police?
HARMON: Well, for one reason, we have more than 18,000 law enforcement agencies in the United States, and that’s a lot of data to collect. They’re very diverse, and so it’s hard. We’d have to have a national effort to do it in any sort of coherent way, and we haven’t had the will to do that.
COWEN: Is it that they don’t want to do it? And is the bottleneck at the level of the individual police officer, the department, somewhere else?
HARMON: There are bottlenecks all along the way. If you think about what we traditionally demanded from police departments, the focus of the political demands on police departments have tended to focus on effectiveness in terms of public safety, or at least visible efforts towards producing public safety. There’s been a lot less focus on what kinds of harms policing is imposing.
We do actually collect a lot of data from police departments, pretty effectively, with respect to crimes. We’ve had the uniform crime reports for almost 100 years, and we have standardized definitions of what those crimes are. Not perfect, but pretty good data from departments. There’s just a lot less interest in collecting data on the coercion that police officers do, like arrests. Arrests we use for the crime reports, but stops, uses of force, and the like.
And it does cost something to collect that data, so you’d need individual officers to take time to do it. You’d need departments to supervise them, and then you’d need an effort to standardize the definitions and the formats so that we could actually use the data.
On body cams
COWEN: If you think of body cams as a form of data on police behavior, would having a body cam on each officer be an effective way of improving the quality of conduct?
HARMON: I would start with the premise, which is that body cams are data. So far, body cams are anecdote. As machine learning gets better, they are becoming data, and they’re getting more useful in that way. But body cams are one perspective on an encounter. Of course, most of the data we get is officer-reported, so they’re useful. It’s not clear whether body cams are going to be an important form of data in policing, but I suspect, over time, they will be.
COWEN: But do you think police would behave better if they knew they were always being taped? Some people say they’ll just turn off the body cam, or you won’t be able to prosecute them anyway. What’s your empirical view?
HARMON: I’m not a social scientist. I’m a lawyer, but I try to follow the social science in this area, and I can tell you that what we know right now is that the results of studies of body cameras, at least in terms of if you’re studying whether they reduce complaints or whether they reduce uses of force, the studies are, at best, mixed. I would say the evidence that they do good in these respects is pretty weak.
COWEN: But what’s your intuition as to why they’re not a clear winner? We’re doing a podcast, in essence, with a body cam. We’re, of course, super nice anyway, but we’re going to be super nice to each other. Why doesn’t that just work across the board?
HARMON: I’m not that nice usually, and if you record me for long enough, I will forget to be nice, and I’ll be my normal not-that-nice self. I think part of what happens in policing, with respect to anyone wearing a camera, is that people forget over time. And partly, some of the causes of problems in policing aren’t that officers are intentionally misbehaving. Sometimes they’re not being as cautious as they should be or not as polite as they should be.
But often it’s about the broader incentives they face. If a department doesn’t care if you’re polite or not, putting on a camera isn’t going to make you more polite. There would have to be standards. There’d have to be consequences. Officers have to have the motivation to behave differently, and they have to have the capacity to behave differently.
COWEN: Do we have too many separate police departments? You mentioned the number of different departments as an obstacle to collecting data. Should there be more consolidation?
HARMON: Sure. There are advantages and disadvantages to consolidation. I said 18,000. That’s actually not the best, most recent number. It’s probably a little more than 12,000 local departments. About half of those are fewer than 10 guys. Now, we talk about police accountability and having use-of-force policies and disciplinary structures, but in an office of 10 guys, none of that matters.
So I think some consolidation would be extremely valuable because these very small departments just can’t maintain the kinds of standards that we might want. But I don’t think consolidation is the solution to all problems in policing, and consolidation has costs as well as benefits because it means that, as communities get more diverse, segments of the community might not get what they want out of policing.
COWEN: I believe that, right now, around one-eighth of police officers are women. Should that percentage be higher as a way of addressing police misconduct? You might want it to be higher for other equity reasons; that’s fine. But in terms of people being happier with their police, would it help?
HARMON: I’m not sure we know for sure. The studies on gender show a little bit better effect than the studies on racial diversity in policing, and I think communities do value diverse police departments that reflect what the community looks like. And certainly, women might help, but I don’t take diversity in policing to be a solution to problems in policing. I think it’s an end that we might pursue for other reasons.
COWEN: But if I think of data on nonpolice behavior, for whatever reasons, women are much less violently aggressive than are men. So you might think if the police force were half women, more or less, the cases we’re worried about would fall significantly. If that’s not true, what’s your intuition for why not?
HARMON: For one reason, police officers and regular people aren’t similarly situated with respect to violence. I’m a very small person. I’m only about 4’11” on a good day. If you asked me why I don’t engage in more violence, well, maybe I don’t usually have the motivation to engage in violence, and maybe, even though I’ve done a little kickboxing, I’m probably going to lose most fights I’m in.
Police officers are armed, and they’re trained to use force, so there’s a difference. Even if women are, on average, smaller, there’s still going to be a difference in their preparedness to use force to enforce a command. So I just don’t think we can infer from what we know about women participating in violence more generally that women are going to behave differently on the police force. That doesn’t mean they won’t. And again, it’s a little bit of research, but it’s not great, and I think police officers are situated differently with respect to force.
COWEN: Should the Department of Justice have the right to file suit against police departments as they’ve had, I believe, what, since 1994?
HARMON: Yes. Should they?
COWEN: Is that a good idea? Should they?
HARMON: Yes, they should have the power to do that.
HARMON: The lawsuits by the Justice Department for pattern or practices of unconstitutional conduct by a police department are important, both symbolically and practically. Now, those lawsuits have substantial costs as well as benefits. When the Justice Department has sued police departments in the past, those suits have been very expensive.
Some suits have worked better than others in terms of reform, and some of the reforms haven’t always lasted, so I don’t want to suggest that they are somehow a panacea to problems in policing
At the same time, they’ve done a lot to signal the federal government’s commitment to civil rights. They have set national standards for departments that are interested in adopting best practices, and they have reformed some very big, very problematic departments.
COWEN: But, say, when the feds give money to state and local departments and enforce standards of accountability, there’s at least the risk that lowers local accountability, right? Does that always work out for the better when they give them money?
HARMON: Well, most of the money we give to local police departments isn’t for accountability. It’s to improve effectiveness in policing or to shift policing towards national priorities that might not be adequately addressed at the local level. Local departments don’t have enough of an incentive to prepare against terrorism, except maybe New York, so we might fund them to make sure that we’re all on the same page.
There are some good reasons for federal programs, but the way those programs have been designed have not focused on accountability, and often they have given money directly to police departments or been structured in ways that incentivize harmful policing. In that way, when they do that, even if they make policing more effective, they can also make it more harmful and therefore less efficient and also undermine community control.
COWEN: What would be an example of incentivizing harmful policing through those subsidies?
HARMON: The Violence Against Women Act has an arrest program — it was traditionally known as the arrest program, recently renamed — which provides money to municipalities to increase the criminalization or criminal justice taking seriously violence against women — domestic violence, and stalking, and some other kinds of violence.
That program specifically incentivizes arrests, and it incentivizes arrests even above prosecutions. So it’s not that we’re saying we should take it seriously at sentencing. We’re saying we should take it seriously when we see it; we should arrest it. And it encourages departments to adopt pro-arrest policies and states to adopt pro-arrest laws. But arresting people doesn’t necessarily protect public safety, and it does increase harm.
On changing selection criteria for police
COWEN: Should we impose higher educational standards on police forces?
HARMON: There’s mixed evidence on that. Slightly older police officers tend to be better in certain respects, at least, and education is often associated with age. But, again, I don’t think that we can select our way out of problems in policing.
COWEN: But why can’t we? Because different individuals — they behave so differently. They think so differently. Why is it that there’s no change in selection criteria that would get the police to be more the way we want them to be, whatever that might be?
HARMON: I think we could do some things. We could screen out people who have committed misconduct in the past, for example, by decertifying them at the state level and therefore discouraging departments that can’t or don’t care very much about quality of their officers from hiring those officers.
It’s not that we can’t select against problems in policing at all. Sometimes we know that an officer’s problematic, and still he’ll wander around from department to department. I think we should set minimum age standards that are above 18, which many states have as a minimum age standard.
But in terms of education or other more subtle factors, I think the effects can often be subtle, and when we look at what creates problems in policing, departments create officers. The officers don’t preexist a department, really, so what you’re really looking at is the culture of the department, the incentive structures, the supervision, discipline. You can make good officers with imperfect people.
COWEN: Say many more of the police were 67-year-old women, and they were short. Obviously, there’s an issue. They might be more willing to use their guns because they would feel physically more endangered. But wouldn’t it just be highly likely that in terms of misbehavior, there would be less of it just by changing the composition? It seems true for every other job we know.
HARMON: Yeah, maybe. But even there — I’m not 67 yet, but I’m on my way. If you tell me that I have to complete every call in 90 seconds, and I face somebody who is holding a knife and clearly in a mental health crisis, I have two options. I can wait and talk and see if I can de-escalate the situation, or I can tase him and be done with it. And even a 67-year-old woman is going to respond to incentives about how she’s supposed to handle that situation. If you rush her, she’ll tase them.
If you tell me that I have to complete every call in 90 seconds, and I face somebody who is holding a knife and clearly in a mental health crisis, I have two options. I can wait and talk and see if I can de-escalate the situation, or I can tase him and be done with it. And even a 67-year-old woman is going to respond to incentives about how she’s supposed to handle that situation. If you rush her, she’ll tase them.
COWEN: So what’s the incentive, then, we should change, if composition and selection won’t do it?
HARMON: I’m not saying it’s not that they won’t help. You could help with education. You could help with diversification, and diversity might help in policing, like women because they break up the subcultures in a police department that can reinforce bad behavior. I actually think having women present helps — even if the women aren’t less violent — just by reducing the uniformity of the culture. So I don’t want to say those things don’t matter at all.
But I think the capacity to solve problems without force and the motivation to do so matter at least as much, if not more, and so what we have to do is give officers that capacity. I wish we had more evidence about de-escalation training and about implicit bias training and the like. We don’t, so we don’t know that that stuff works, at least not yet. But hopefully we can study these things and develop mechanisms to have alternatives, to empower officers to use alternatives, and then give them the backup, the time, if necessary, the cover, to engage in less forceful responses.
COWEN: Let’s say we doubled the number of people in the active police force. Is it possible, then, misconduct would go down? Everyone’s not so rushed. There’s a greater sense you can do things properly.
HARMON: It depends what you do with them. You could double the number of police officers just to make things far worse if what they’re doing is going out onto the street and jacking people up, throwing them against the wall, frisking them, and the like. So it really depends what you do with the officers you have.
One of the things is we just don’t have a lot of good research. We do have some research that suggests if you add officers to a department, public safety gets better, even if arrests don’t go up. So the presence of officers as a sentinel to discourage misconduct or to discourage crime actually works pretty well. But what we don’t know is whether adding those police officers also increases harm, and so we don’t know if doubling a police force actually makes things far worse or far better.
COWEN: Conceptually, what do you view as the fundamental constraint in the system? Someone might say, “Well, it’s too hard to watch police officers.” But body cams — it’s not clear they’ll work. Whom we pick — it’s not obvious that’s the lever of progress. What’s the actual constraint you would like to be able to control better?
HARMON: Yeah, I’m not a big believer in silver bullets. I don’t think there is a single constraint. We have been struggling with balancing the harms and benefits of policing since we started contemporary departments, so I don’t think that we’re going to suddenly fix this by flipping one lever.
I think that one thing that we could do is facilitate better accountability in policing. And what I mean by that is, if you think about policing or accountability that an officer would be responsive to standards, he would have to explain his behavior, and he’d face consequences when he didn’t live up to those standards.
Those standards should reflect the full costs and benefits of policing so that we set rules for policing that actually get what we want out of policing. Those standards won’t reflect those rules if we don’t know what the costs of policing are, and that means hearing from the members of the community on whom we tend to concentrate the costs of policing.
Then we have to make sure that police are, in fact, accountable, that they do have to explain their behavior — which means we would know what they were doing — and that they face consequences when they don’t live up to expectations.
COWEN: If we paid law professors 50 percent more, we’d probably get more good people wanting to be law professors. Should we pay police 50 percent more?
HARMON: I think it’s clear that when we reduce police salaries a lot — as you see in some small departments and in poorer communities — then police quality goes down because you start getting officers with records of misconduct and the like, so we don’t want salaries to go too low. But I don’t know that if we doubled salaries or raised them 50 percent that we’d get radically higher-quality police officers. I’m open to it.
We could have a Police for America program like we have a Teach for America program, and kids out of Harvard would then go police in big cities and small towns for three years. I’m open to trying almost anything as an alternative, but I don’t think we know that raising salaries is going to make things better in policing.
COWEN: I think there are about as many social workers as there are police. Should we take a third of those social workers and, in essence, reallocate them to police work, paying them more if we have to?
HARMON: Sure. There are some aspects of what police departments are expected to do now that would be better handled by social workers who are trained to deal with people in crisis, whether there’s a substance abuse or a mental health crisis or other social services needs, like people without housing and the like, and so we dump a lot of that on police departments.
There are some aspects of what police departments are expected to do now that would be better handled by social workers who are trained to deal with people in crisis.
There is no police department in America who wouldn’t say what we need is more mental health services, because mental health services would prevent the crises. And if we had more social workers responding to those crises, either with law enforcement or without, depending on the nature of the crisis, we might get more effective policing. Yeah, sure.
COWEN: What about mandatory therapist visits for each policeman or [police]woman?
HARMON: I don’t know about mandatory therapist visits, but I would say that we have to prioritize the health and well-being of police officers because police officers who are overly stressed or who are hurt physically or mentally are more likely to hurt others. So we have to take seriously officer well-being.
Now, what that means can be complicated. We want our officers to be able to get the therapy services they need. Often peer services work better. Some departments are looking to the military model for increasing well-being because officer suicides are a huge problem right now.
But we also want to make sure that an officer who is potentially in crisis or harmful to others isn’t on the street. States are struggling with the tradeoffs between protecting officers to make sure they seek the help they need and ensuring that officers are removed if they are risky to others.
On sexual assault by police
COWEN: You spent quite a few years working on the issue of sexual assault by police, right? What’s the main thing the American public does not know about that topic?
HARMON: I don’t think they realize how common sexual assaults by police are, how unlikely they are to be reported, and then how difficult they are to prove once they are reported. I prosecuted cases involving police misconduct for the Department of Justice, and one of the big issues in some of the sexual assault cases I did was that the first complaint, the second complaint, the third complaint would come in. They would come in sporadically. It would be “he said, she said.”
The department would investigate, decide that there was no evidence to support the woman’s claim, and the officer would go about his business. The women more often had credibility problems. They might be felons. They might be prostitutes with drug habits, runaways. But over time, what you would see is a department never vindicating those claims, never investigating them thoroughly enough.
When you would look at these cases and start actually seriously investigating, you’d realize that actually, this officer had done it dozens of times. Some of them might be beyond the statute of limitations. Some of the women might have serious credibility issues.
But you’d get enough that in some cases, I had more than a dozen prosecutable incidents involving sexual abuse by an officer, some of which there had been complaints about, but only some, and none of those had been recognized as legitimate. Even the Justice Department — it would often close the case at least once before I got it. So it’s very hard to see how big the problem is or to investigate and handle those cases.
COWEN: What should we do to improve that problem?
HARMON: Diversifying police departments with respect to gender might help that problem. I don’t know, but police officers —
COWEN: Yeah, it almost certainly would, right?
HARMON: Yeah, I can only think. What we don’t want is police officers to be alone or with somebody else or with other people that they can rely on not to report misconduct. That means officers have to have the duty to report misconduct with respect to each other, and we have to have a culture interior to departments that facilitates that happening.
Uses of force are often hard to determine whether they’re legal or illegal, whether it was appropriate or inappropriate. There’s no question that sex between a police officer and somebody he’s just arrested is wrong. That is just pure bad, and so we should never have a situation in which another officer has information or evidence or has witnessed such a thing and is unwilling to report it.
COWEN: But it’s often legal, correct?
HARMON: Yeah, in some places. It depends what you mean by legal. It is not unconstitutional. In some states, consensual sex between an officer and a person in custody is not illegal, and so it depends in part on whether it’s nonconsensual. In other places, custodial sex with somebody in custody is illegal, so it varies. But if it’s nonconsensual, it’s always illegal.
COWEN: I would think, in a sense, it can never be consensual.
HARMON: Yeah, that’s true. In fact, one of the problems that we had in federal cases involving sexual misconduct or sexual abuse is that you would have to prove force to prove a felony, but officers don’t have to use force, and they don’t even have to explicitly threaten force. They control the situation. The person is under arrest. They’re wearing a gun, and they express and act as if they’re invincible.
And often, the women who are abused are carefully chosen to believe that they are. They know because they’ve been arrested before, and they know because they have a criminal history. They know because . . .
I had one case involving someone who directed a halfway house, and the women had to have sex with him in order to see their children because he could affect their probation status, and if they got their probation revoked or ended up back in jail, they wouldn’t see their children anymore. He picked them pretty carefully. So yeah, they don’t always need force, and we might need laws to better protect against that.
On the most cost-effective policing reforms
COWEN: If I think of this problem in its most general form, let’s say we agree that having more policemen doing the right thing is a high positive social return, so we don’t just want to discourage the police from engaging flat out.
COWEN: At the same time, there are many instances of misconduct. It seems hard to limit them through a number of mechanisms that I’ve been suggesting. So what is the most cost-effective intervention that will improve the quality of policing, but without just limiting the number of engagements?
HARMON: I don’t know. The most cost-effective intervention to improve the quality of policing without limiting engagement — I don’t know. I don’t know that I can think of a single intervention. If you think about particular interventions, I can tell you how they might affect that equation, but there are a lot of forces acting on policing.
For example, people talk about civil damages actions, and one of the things about civil damages action is they worry about indemnification. Indemnification is when the city pays, even though the officer gets the judgment against him, and people object to this because they think the officer should be punished more.
But I’m actually pro-indemnification, because I think if the city pays, then as long as we make that payment transparent so we don’t have nondisclosure agreements, then we can act, and we also collect data on it. Then a community could actually say, “Hey, I don’t want my taxes to go up because you idiots won’t train and prepare officers and discipline them and supervise them so that they do less of this.”
So we want the costs to be internalized. There are a lot of different ways to ensure that we internalize the cost of policing — making them more visible, making them experienced by the political actors who are going to make decisions about hiring and firing police chiefs, about setting policy for police departments. I think the more we internalize the full costs of policing and make sure they’re fairly distributed, the better policing will be.
COWEN: There are other countries that are very different. An extreme example would be Norway. I’m not saying we can be like Norway, right? We’re a very different country. But if you’re Rachel Harmon, dictator of all matters police, and you’re allowed to make one change that will last after you’re gone, what would that be?
HARMON: I think setting up some national standards so that we not only have a federal intervention in making police more effective or federal intervention in suing police departments and prosecuting police officers, but national standards for ensuring that policing is actually beneficial, that we’re harm minimizing, that it’s fair, and that it’s authorized by local communities.
Given that we do operate policing the way we do, which is in lots and lots of departments, having some shared national standards, the way England does it, might help a lot, even if we continue to organize policing the way we do.
COWEN: If a department doesn’t meet those standards, do you take away money, put them into receivership, something else? What do you do?
HARMON: There are different proposals for that. Right now, people are talking about an accreditation system where departments would seek to be accredited by meeting national standards. You could penalize them by taking away money for things that they want, but that has, again, cost and benefits, and over time, the federal government has been totally unwilling to do that. It’s basically not used money as a tool for ensuring police accountability.
I don’t know if there’s one way to do it, but there are several ways to do it, and I think partly, communities have to do it themselves. That is to say, once we have national standards out there, communities can hold their own departments accountable for not meeting them.
On the improved policing in Camden and elsewhere
COWEN: Camden, Trenton, and Newark seem to have improved the quality of their police from what we can tell. Are there lessons we can draw from those examples? Those are tough cities, right?
HARMON: Yeah, they are. One thing is the value of innovative leadership. Scott Thomson in Camden did a lot of good and thought seriously about the problems and engaged all of the different participants — both communities, the officers.
He put out a new use-of-force policy last year, which is probably the most progressive in the country, based in part on work that the ALI did, the American Law Institute did, and I’ve been involved in that work. I helped draft those principles. He did that by getting everyone to the table and getting buy-in from everyone involved, and that’s a lot more likely to have success, lasting success. So leadership matters. Buy-in matters.
He also had a little more power to restructure the department from the ground up. One of the problems that people have had when we might get a new leader in a department who wants to reform the department, but the culture of the department is resistant to change, and they know that the guy’s likely to be fired within a year anyway, so they can just wait him out. So you can often have trouble penetrating department culture.
One of the things that happened in Camden is they were rebuilding a department from the ground up, and that gave them a lot of power to make things a little bit better. So dismantling resistance to change actually helps a lot, too. Those are some of the factors.
I’m terrible because I’ll never give you a “Yep, here’s the answer and it’s easy.” I just don’t have it.
COWEN: That’s good. The people who give that are terrible, I would say. Minneapolis at least claimed —
HARMON: Unless you ask me about civil asset forfeiture, and then I’ll just tell you it’s all bad.
COWEN: Yes, that’s an easy one.
Minneapolis claims that it will be dismantling its police department, but this, of course, will be under intense glare and scrutiny as a national issue. Is that likely to go the route of Camden and be a positive? Or what’s your intuition on that case?
HARMON: I don’t know. Minneapolis has known it’s had some problems for several years. Minnesota has had some hearings. Minneapolis has tried to do some reforms and they haven’t, even after some high-profile events — not as high profile as what’s going on now, for sure, but some high-profile, salient events — they were unable to generate the kind of change that would make a difference, at least significantly so.
And they have on paper some of the formal reforms that people often demand in policing. I don’t know enough about what’s going on on the ground. One of the things about police institutions is that they are local institutions. So you have to know a lot about what’s going on in a community to know how likely they are to change.
COWEN: How much of the problems with American police are just correlated with the problems of the citizens? If you had a town where just literally everyone was completely nice, would police brutality be a major issue?
HARMON: There are a lot of ways to prevent police — call it brutality. Let’s call it violence or just a use of force. Let’s say all uses of force — it would be better if no uses of force happened. Now, we could prevent them by preventing the underlying problems that police respond to. We could do education, and have economic development, and provide mental health services. And then police will respond to far fewer problems, and things would be better.
We could re-identify problems and tolerate a little bit more disorder. Maybe a police officer doesn’t have to break up a loud party, and then he won’t have to arrest the people involved. So we could do that.
We could encourage people to react differently to the police. If people trust the police in your nice town where people believe that the police are there to help, not to hurt, where police are not being aggressive towards them, they might be far more likely to respond to just a mere request. “You know what, why don’t you turn the music down?” And they would say, “Fine.”
You could do all those things and help improve policing, sure. And then at the end of the day, the police officers in your nice town might also be likely to wait out people who are noncompliant or look for alternatives because in a nice town, that’s what people do. So I think niceness could help, but thinking about how it could help is really what matters.
COWEN: How do we limit the number of police who lie at trial, or lie to back up their peers, or somehow just outright refuse to play by the legal rules of the game, telling the truth?
HARMON: We impose consequences. Right now, there are almost no consequences for police officers who lie. If a judge thinks that a police officer lies in a suppression motion, he will maybe suppress the evidence if the truth indicates that the search or the seizure was illegal. But that’s hardly much of a penalty. A police officer engages in an illegal search. Then he lies at trial, taking the chance that he might get it in.
At worst, the only outcome is what would have happened if he had told the truth. So I don’t think that’s a very effective incentive. Departments, when officers do lie at trial, often don’t take steps. And sometimes when officers admit that they were under pressure to lie or that they did lie, they learn very quickly that admitting a lie is much more problematic than lying.
That’s the problem that really is internal to departments. In some cities, there’s a culture of more reporting than in others. That’s something that departments can do to facilitate truthfulness and policing. But expecting truthfulness would go a long way to improving it.
On whether curtailing arrests is a good idea
COWEN: Here’s a question from a reader, and I quote, “The author advocates curtailing arrests, but in places we’ve seen this, it has resulted in absolute bedlam: San Francisco, Seattle, New York. Where were the leading examples that have delivered better outcomes?” End quote.
HARMON: I don’t accept the premise that reducing arrests . . . First of all, I’m not sure all those cities have reduced arrests. Certainly, Seattle and New York have. I don’t know the numbers in San Francisco, but in New York, we dramatically dropped arrests for misdemeanor offenses without a substantial increase in crime. I’m not sure that I would call that absolute bedlam.
You’d have to convince me. I look at everything the same way, which is, is it effective at producing the goals, which are public safety and public order? Is it beneficial in the sense that the costs don’t outweigh the benefits? Is it efficient in the sense that there’s no less harmful alternative? Is it fairly distributed?
I think arrests, to a large degree, fail those tasks. For those reasons, I would like to reduce them because I think they impose harm where harm is unnecessary. I don’t accept the premise of the question that reducing arrests has caused bedlam.
COWEN: But if we look at San Francisco — I was watching the movie Dirty Harry a week ago, set in 1971 in San Francisco. The city was much cleaner in terms of problems on the street. Although crime was higher, it seemed to work much better. There were no cases of people — maybe homeless people — just going into stores, taking things, knowing they won’t be arrested. Citizens have had it up to here. They claim it’s unlivable. Why don’t the police there simply need to be much tougher? Why is that wrong?
HARMON: I don’t know enough about what’s going on in San Francisco, but one of the big problems in San Francisco seems to be radical economic inequality that leads to the underlying problems, which you can’t arrest your way out of. You arrest somebody who walks into a store, and they spend the night in jail, and then they’re back out on the street and homeless again.
I don’t know what that arrest achieved in terms of public safety and public order. And I’m not sure that San Francisco would be willing to pay the costs of those arrests, or that it would get them what they want.
COWEN: Inequality is very high in Singapore, but you know there, if you commit a crime, you will be arrested and sent to jail. Why wouldn’t that work for San Francisco?
HARMON: First of all, I would detach the idea of an arrest from the idea of criminalization and penalizing. I don’t know, again, much about Singapore, although I did spend a week there in 1989. I was sick for most of it. Maybe it was ’90. What we can say is that, if somebody is engaged in behavior that we don’t want, there are lots of ways to address that. One of them is criminal sanction, but the decision to arrest somebody and the decision to sanction them criminally aren’t the same decision. Okay?
We didn’t arrest Harvey Weinstein. He was allowed to self-surrender with a pre-negotiated bail package. The only time he ever spent in handcuffs was in walking — before his conviction — walking from the police station to the courthouse after his self-surrender. This was a violent felon. We had evidence that he would be a harm to the public if he was let go. And we didn’t arrest him. I’m not sure we should arrest every low-level offense for possession of marijuana.
COWEN: What’s the importance —
HARMON: I don’t think that gets us public safety. You look at the numbers of arrests that we dropped in New York just by not arresting people for simple possession of marijuana, and you see that’s a lot of harm reduced and no additional public safety risk, or almost none.
COWEN: Sure, I think that should be legal. But people who steal things — I would arrest all of them whom I could catch without hesitation.
HARMON: Why wouldn’t you charge them and ask them to show up in court?
COWEN: They won’t show. Maybe they don’t have addresses.
HARMON: Well, most people who get traffic tickets show up or pay their ticket. And we know that’s totally malleable. That is to say, all we have to do is remind you, and then the percentage of people who show up goes up 10 percent.
When we’re talking about low-level thefts, the penalties are not that high. These are not people who are worried that they’re going to spend the rest of their lives in prison. Most people are easy to find. I’m not saying you might not — if you convince me that really people won’t show up, and really we can’t find them if they don’t, but I don’t think we have any reason to believe that’s true in most of these cases.
COWEN: What important truth are law students least likely to learn about policing?
HARMON: Oh, that it’s not all about constitutional law. When you go to law school, what you learn about policing is the Fourth Amendment and Miranda, and you think you’ve learned the law of the police. I teach a class now, after I teach them criminal procedure — my more advanced class is on all of the law that relates to policing, so they can see that we have to consider all the harms and benefits of policing, that law plays a critical role in setting standards, that policing is worth its cost and shapes expected values.
COWEN: Given the cost of not taking a plea bargain, can it be said today that there’s even still a right to a fair trial? It seems to me, no. Am I wrong?
HARMON: Is there a right? No, no, there’s not much of a right to a fair trial.
COWEN: What should we do about that?
HARMON: That is not an area I’m nearly as expert in as policing. But I think one of the problems is that we clog the system with a lot of offenses we never mean to prosecute, that we’re using the criminal justice system to address problems that, really, we should and could address in other ways. That burdens the system. Tons and tons of misdemeanors are just dropped as soon as the person walks into court. Counsel is really, really limited. People have limited opportunities to meet with their counsel. I think we could do a lot to improve the system by just reducing the scope of the system.
COWEN: What’s a good movie about the police?
HARMON: I try not to watch that many movies about the police, to tell you the truth. I’m a relatively low media-consumption person, so I’m not sure I’m the best person to say.
COWEN: A good novel about the police.
HARMON: Again, I don’t know that I’ve read many novels about the police.
COWEN: How much is popular culture a problem? It both tells police how they ought to behave, and it tells citizens what to expect from police. Doesn’t it set a norm of a high expectation of violence on both sides?
HARMON: Well, we used to have Officer Friendly, and now we have Training Day. Yeah. I think it certainly portrays a message of policing that can distort both public perception and police perception of what the norms are, just like the media could do that in other contexts. Yeah.
COWEN: Why is boxing interesting?
HARMON: Because there is nothing that focuses your attention more than someone trying to hit you in the face. It is absolutely terrific at screening out all distraction. You forget who you are when you box.
There is nothing that focuses your attention more than someone trying to hit you in the face. It is absolutely terrific at screening out all distraction. You forget who you are when you box.
COWEN: What makes for a good boxer? Is it coaching, pain tolerance, brute strength, size?
HARMON: I don’t know because I’ve never been a good boxer, so I’m not sure I’m qualified to say.
COWEN: Should we be worried about how many young men seem to love mixed martial arts today? Is that a sign of decadence, or it’s just fine?
HARMON: Well, again, I think it’s a mixed bag. I have to say that the experience of engaging in kickboxing is so terrific that I understand why people want to do it, even though it’s also injurious. My kids would say it’s a blood sport. They won’t even watch football. They certainly wouldn’t watch that. And they think that my affection for it is not my best feature.
COWEN: Should the police have a right to the contents of your smartphone?
HARMON: That’s not a simple question to ask. In what context? I think the police should not be able to open your smartphone when they see you on the street, but with a warrant, sure. Sometimes I think it’s important evidence to convict someone of a serious crime. Sure.
COWEN: Apple, as you know, tries to make the contents of smartphones impossible to decrypt if the user wants privacy. Should the federal government pass a law, in essence, disallowing that protection?
HARMON: I don’t know.
COWEN: What’s the economic future of law schools? How many will survive?
HARMON: Actually, I think it could be far fewer, and that wouldn’t be a bad thing. I think we could reduce the number of law schools. Some law schools are effectively diploma mills that produce lawyers who don’t have a good shot of getting a JD-required or JD-valued job, which means they can’t pay off the loans that they take out to go to law school. So I wouldn’t mind seeing some law schools depart from the system.
COWEN: UVA, as you know, is a top-rated law school. But say you go to a law school ranked between 35 and 40, which can still have a lot of good elements, produce a lot of good research, have some great professors. You’re asking students to pay a lot of money. Probably they’re not getting aid. Does it make sense, in economic terms, for that institution to still exist 10 years from now?
HARMON: Yes. If you’re talking about ranked 30 to 40, sure. If you’re talking about ranked 150 to 200, then I think the answer is no.
COWEN: 70 to 80?
HARMON: I don’t know. I’d have to look at more data.
COWEN: If you think of the legal profession as a whole, you see a lot of lawyers at lower levels now being displaced by a mix of software and research assistants, and the research assistants are paid much less than lawyers used to be. By how much will the legal profession contract, given AI, machine learning, and just smart people who are willing to do some work without a law degree?
HARMON: Again, since my experience as a lawyer was primarily in the government sector, it’s hard for me to assess the tradeoffs in automation and in deprofessionalization, as well as outsourcing law work. I can’t really tell.
On the large drop in the New York City murder rate
COWEN: I think the New York City murder rate has declined by about a factor of 20 —
COWEN: — since its peak. What’s the main driver of that? That’s an enormous change, right? Most people didn’t predict it. Why did that happen?
HARMON: Yeah, there are lots of debates about why that happened. Again, that’s a good question for a criminologist, but I’m not the best person.
COWEN: But you’ve seen it happen, right?
HARMON: Yes, I grew up in New York. Sure.
COWEN: You’ve been a prosecutor. You’ve worked with police. You’ve studied the police. You’re from Brooklyn. You must have some sense why this is happening.
HARMON: It’s funny. I’m always trying to convey how radically different New York is today from when I grew up in the ’70s and ’80s in New York, because my students read the Bernhard Goetz case, and they just have no sense of the context of it, you know, how people felt in New York, given the crime and that they were afraid to ride the subway or that Times Square was not, in fact, the Disney World that it is today.
HARMON: I definitely do feel the difference. I don’t know that I have perfect intuitions about what has changed.
COWEN: Soho was a dump, right? Even the Upper East Side wasn’t safe. Now New York City is one of the safer cities in America. Even safer than many midsize cities. And we have no idea what happened?
HARMON: No, there are lots of people who have lots of ideas about what happened. I’m just not sophisticated about them enough to weigh in. I resist talking about things I don’t know anything about. Again, not one of my best qualities.
COWEN: But again, it can’t be you know nothing about it, right? You’re an expert on the police.
HARMON: What I can tell you is that the part of it that I focus on is, was it proactive policing? Was it “stop, question, and frisk” and broken-windows policing that drove the murder rates down? And the answer to that is probably no. I think cities that didn’t engage in those strategies also had substantially lower crime rates and murder rates than they do today.
Does that mean that policing had no effect? No, I won’t say policing had no effect. I just don’t think it was adopting proactive, broken-windows policing. And when I look at those strategies, I’m all about the costs as well as the benefits. So I think those strategies, especially “stop, question, and frisk” as was carried out in New York, was so vastly costly that we would be very cautious in thinking about its benefits on their own.
COWEN: The exclusionary rule — how much has it mattered?
HARMON: The exclusionary rule has mattered a lot to the culture of policing. I often tell my students a story about a guy I prosecuted. He committed tons and tons of crimes. When we were talking with him about some of them, he was explaining to me about how he would pull over people he suspected of being drug dealers and rob them for their cash and their drugs and then let them go or write them a ticket or whatever.
When I asked him what he would make up for probable cause when he would either ticket them or stop them, what he told them for his reasons, he said, “What do you mean?” And I said, “Well, you’re pulling them over because you’re going to rob them. What would you make up for probable cause for the stop?”
And he said, “Oh, no, no, no. I would follow them until they committed a traffic offense. And then I would pull them over. I wouldn’t make up probable cause.” And I said, “I’m sorry, you’re pulling them over to rob them, but you wouldn’t make up a probable cause?” And he said, “No, I’m still a cop.”
The reason that incident struck me so much is because the reason he has internalized the norms of probable cause is because that is subject to the exclusionary rule. So the effect of the exclusionary rule, in large part, was to give police departments an incentive to teach officers the law and give officers an incentive to learn that law and follow it, at least in large part.
The constitutional law, before the exclusionary rule, was not something police officers knew anything about. After the exclusionary rule, every police officer thinks that the Fourth Amendment is part of his police manual. So I think it’s impossible to underestimate the cultural change in terms of internalizing norms of constitutional law into policing. That doesn’t mean that it provides an effective incentive to never lie or never engage in illegal conduct as it’s currently structured. But I think it’s had an enormous effect on the culture of policing.
COWEN: If we put aside all the bigger political issues and put aside the unusual events of the last few weeks, and we just compare the Obama and Trump administrations on policies toward police departments, what is the main difference? Not the hot-button issues on the news every night, but the dry, boring stuff.
HARMON: The three things that the Trump administration did and then the things that it said. When Sessions came in as Trump’s first attorney general, he effectively shut down the pattern-or-practice lawsuits that the Justice Department was carrying out. He allowed the ongoing ones to continue, though he tried to get out of the two that were not yet ink dry but had already been negotiated in Baltimore and Chicago.
He managed to get out in Chicago, not in Baltimore because the judge wouldn’t let the Justice Department out of the suit. So that was one thing, which is no new investigations or almost no new investigations. They just shut down a program that the Obama administration had pursued very actively. That was one thing.
Another thing is that they reversed changes to the military equipment program, 1033, some of which is coming out now in association with the militarism around the protests.
And there’s one more, which I am forgetting off the top of my head, but I’ll think of in a minute.
Then the other thing that Trump did, President Trump and Jeff Sessions did, is they advocated for more aggressive policing. They advocated “stop, question, and frisk” as a strategy in Chicago and repeatedly valued more aggressive forms of policing. You hear that, again, with Attorney General Barr in repeated advocacy for more aggressive forms of policing, which are harm inefficient, I think.
Then President Trump, in his speech in Suffolk County, New York — he advocated allowing officers or encouraged officers to let suspects bang their head on the car door, which was effectively advocating constitutional violations by the police department. Together, all of those things have conveyed a very clear message to police departments that they value aggressive policing and not constitutional or harm-efficient policing.
On the Rachel Harmon production function
COWEN: Our very last segment is called the Rachel Harmon production function. It’s about you. Having an engineering degree from MIT — how has it influenced how you think about the law?
HARMON: Well, I went from engineering to philosophy to law, and you could call it a random walk, or you could say that I’m really interested in the structure of things. I think that the analytic tools that I learned as an engineer definitely informed the way I think about legal issues.
COWEN: Is it efficient to graduate with the highest grade possible from Yale Law School, as you did? Or is that inefficient?
HARMON: [laughs] I don’t know the answer to that. I guess it had some benefits. I think it helped me get a clerkship at the Supreme Court. That was kind of fun. Probably helped me get with the academic jobs. So, for me, it’s been probably overall efficient, but I don’t know that anyone cares that much.
COWEN: What did you learn clerking from Judge Guido Calabresi? I mean, many things, but what stands out?
HARMON: Yes. What stands out? Guido has been a mentor to me, both as a lawyer, as a thinker, but also personally. He performed the wedding for me and my husband. He’s been involved in my life since. I don’t know that I have one message, but maybe partly it’s actually about being a serious legal thinker and a human being. He has a remarkably rich and full life and cares enormously about people, and that’s been a wonderful thing to see and try to live up to.
COWEN: And clerking for Stephen Breyer?
HARMON: Oh, again, he’s a remarkable, wonderful man and a hugely human human being. Stephen Breyer — one of the things that’s great about him is that he is exactly the same person on the bench, off the bench, in media, and with his children, so he’s a role model as a person.
One of the things he taught me about writing that actually affects my academic work most is that . . . From engineering, I learned to start with an outline and decide what I wanted to say, and then write all the sections to meet my outline. Justice Breyer taught me to just write all my paragraphs and then work backwards to figure out what I had to say after the fact.
COWEN: You’ve qualified four times for the USA Triathlon National Championships —
HARMON: No, more than that, I think.
COWEN: More? Wow.
HARMON: Actually, I was planning to go this year. I’ve qualified, but I don’t usually go to the age group nationals because it’s a big haul and away from my family for days. But this year, I was planning to go and compete in August, but obviously almost everything’s shut down. There are no races this year.
COWEN: Last question: I’m sure you have many great, very, very smart law students, but what is it you look for to see if one of them might be a promising future legal scholar, as you are? What traits?
HARMON: The two things I look for most in a legal scholar — one is, I want to see someone who’s a dog with a bone. I want to see someone who just has a set of questions, even if it’s unrelated, some set of fundamental questions that bothers them enough that they just have to keep coming back to them again and again.
Then, maybe if I can mix my metaphors, I want to make sure that bone is a rich vein to mine. I want to know that that’s going to yield results over years and years. When I see those two things, that kind of desperate need to chew and something that’s likely to pay off in learning something more about the world, then I say that person’s going to go someplace.
COWEN: Rachel Harmon, thank you very much.
HARMON: Thank you.