Following the police-involved deaths of George Floyd and Breonna Taylor this spring, many states and municipalities implemented legislative changes to policies surrounding policing. Among the issues featuring prominently in these reforms and attendant debates were law enforcement funding levels, use-of-force standards, procedures authorizing no-knock warrants, and qualified immunity for government actors against civil lawsuits for constitutional violations. No federal legislation on the subject has yet been passed into law, as lawmakers were unable to compromise on the two parties’ competing reform proposals. Senator Tim Scott of South Carolina was the principal sponsor of the Republican reform legislation, the JUSTICE Act. Senator Scott has the unique vantage of being the sole black Republican Senator, and he has articulated how he himself has felt targeted by police on the basis of his skin color.

In this intimate fireside chat, Senator Scott will speak with Manhattan Institute director of legal policy Jim Copland about the prospects of reform going forward. How does the election change the political prospects for the JUSTICE Act and related, competing reforms? Have subsequent events, including a significant increase in homicides in several major U.S. cities, affected his thinking?

Event Transcript

Jim Copland:

Welcome to the Manhattan Institute's event cast. I'm James R. Copland, senior fellow with the Manhattan Institute for Policy Research, and Director of Legal Policy for the Institute. Today's event cast is sponsored in cooperation with the Manhattan Institute's new policing and public safety initiative, and we're pleased to welcome Senator Tim Scott, Republican of South Carolina, to discuss with us federal criminal justice reform. Now, Senator Scott is someone I look up to a lot. He's a South Carolina Senator. I'm a North Carolina boy, and Senator Scott is somebody who, in his initial primary, those of us who watched, he defeated Strom Thurmond's son in that primary, which those of us who live in the South realize taking out in a primary, the son of a long time leader is something that's quite remarkable. I don't care if you're white, black, or purple, but Senator Scott of course, is a black man.

Jim Copland:

And he's only the fourth black man to serve as a US Senator since reconstruction, along with the great Edward Brooke, of course, Barack Obama, and my law school buddy, Corey Booker, who followed him shortly thereafter in the Senate. And they've worked together in a number of collaborative efforts. Part of the area where Senator Scott has really reached across the aisle is the area we're talking about today, criminal justice reform. And the Senator opened some ears and minds and conservative circles when in July 2016, he talked about his own experiences with the police being stopped disproportionately, even in the Capitol building where he serves as a Senator. So, let's lead off with that, Senator Scott. I think it's an important topic. How has your thinking on these issues continued to evolve over the years? How did it shape the way you approached leading your caucus, putting together the Justice Act this summer, which was the Republican alternative to police reform?

Senator Tim Scott:

Absolutely. Well, thank you number one, Jim. It's important for everybody to know that Carolinians must stick together, even if you're from the powder blue state of North Carolina. God bless the Carolina boys being together. There's no doubt that my relationship with law enforcement over time has been like a roller coaster ride, positive and negative. Stopped 18 times since the year 1999. It has given me a fresh and clear perspective that we still have work to do. However, my positive experiences with law enforcement, whether my home was broken into many years ago, or a major car accident with law enforcement, they were there, they were caring, they were on the spot. I think one of the things we hear seldom is African-Americans speaking about the importance of bridging the blue line. It's this notion that there's a binary choice, with law enforcement on one side, communities of color on the other side, that simply does not exist. I always say that is a false binary choice. It's not real.

Senator Tim Scott:

So my personal experience has really informed and educated me on the importance of police reform. And frankly, my positive experiences has helped me understand without any question that the vast majority of law enforcement officers see their jobs as a mission, to do good, go home and take care of their families. Trey Gowdy and I, by the way, Jim, five years ago, we did a tour throughout South Carolina, bringing black leaders and majority officers together to have a conversation. We learned a lot in those sessions, but one of the things we learned was there is no such thing as a normal traffic stop. And for officers, they learned very quickly that the disproportionate share of African-American men had negative experiences, and many of them unnecessarily so, with law enforcement. So the education process across every line was really important and very helpful. If we spent more time not demonizing the other side, we'd spend a lot more time finding solutions together. And that's what I hope that we're able to do through the police reform legislation that I have promoted.

Jim Copland:

Thanks. Yes, it is, I think an important role that you've played here and bridging this binary. It's something, when you look at the polling data, I wrote about this this summer in National Review, I mean, black Americans do have a nuanced view here. Most don't want to defund the police. A fairly large percentage actually want to increase policing in their neighborhoods, but they want the police to behave a little differently and to understand the situations they face. And that's something that was a part of your Justice Act. It's a part that has been separately enacted, I'm glad to say, since, that you particularly wanted to focus on was the unique situation, and it's not just in policing, but that black men, and young men and boys in particular face, something that touches me because, although I'm obviously a white man, my wife is a black woman. So our son is going to be facing some of these same sorts of issues.

Jim Copland:

You've proposed creating, and now it's been created, a commission on the social status of black men and boys. And I, for one, believe that it's quite possible to be very committed to general colorblindness as a legal principle, but also attuned to the racially disparate impacts our criminal justice system presents. There's no doubt that policing affects African-American men and, for instance, Korean-American women quite differently. What led to your creation of this commission? What are your aspirations for the commission on the social status of black men and boys?

Senator Tim Scott:

Well, Jim, I think you said something very important, that we want our legal system to be colorblind. And one of the reasons why Lady Justice wears a blindfold is because we're not colorblind. So the goal is for us to have a system that does not look first at the color of our skin before they decide what level of justice we get. Unfortunately in the past, we've not seen that to be the case all the time. And so focusing on black boys and black men is a really important part of improving the outcome of this nation. We can do so without discrimination against others, but it is a way for us to focus our attention on some of the vulnerable links in the chain, as it relates to economic mobility, educational achievement, and interactions with law enforcement.

Senator Tim Scott:

I said this earlier, and I'll say it again, that in my opinion, the fastest way for us to deal with police reform has nothing to do with the legal system. It has everything to do with the underpinnings of a healthy economy, the underpinnings of excellent education, and then producing excellent outcomes from a good education system. If we spent more time on the precursors to police reform, we'd have to spend less time on police reform itself. There is an economic component that is really important. And as we study the outcomes of black boys and black men, I think we'll uncover some of the important statistics that will lead us in a direction that has nothing to do with the legal system, everything to do with economic mobility and educational achievement.

Senator Tim Scott:

And I want to give certainly high props to my colleague, Marco Rubio, who literally came up with the idea of the coalition focusing on black boys and black men. I simply included his legislation in my justice reform package. And it was because of his personal experience that led him to this important focus, and I certainly endorse that concept as well.

Jim Copland:

Excellent. And glad to see that at least something got through Congress on it. As I mentioned, the Manhattan Institute has newly launched an initiative on policing and public safety, but this is hardly our first foray into this space. I mean, the Manhattan Institute was instrumental in developing the intellectual framework for the proactive policing policies that help push the homicide rate here in New York, in the Big Apple, down from more than 2200 a year in the early 1990s to only 289 in 2018, which is a remarkable number of lives saved and disproportionately black and Hispanic men.

Jim Copland:

And since then, though, we have seen some backsliding. This year, we've seen a 50% increase in the murder rate in New York, a doubling in shootings. It's one reason we launched our new initiative. And some of course of this year's increase maybe attributable to the COVID lock downs, other idiosyncratic factors, but we've seen over the last several years, some substantial spikes in other large cities like Chicago. There is obviously differences in how communities approach policing and public safety. New York and Chicago aren't like smaller cities, such as Charleston, or suburban areas or rural areas, which makes it complex when you tackle these issues from Washington. But how do these recent urban crime spikes inform the way you've begun to think about approaching policing reform in Congress?

Senator Tim Scott:

One of the things is as you measure the spike in violent crimes and the launch of the Justice Act, as well as this justice conversation, I believe, and there's statistics that reinforce this fact, that the more we demonize law enforcement, the more we discourage them from patrolling certain areas, the more likely you are to see spikes in crime. And frankly, we see that clearly on the streets of New York. There's no question that the correlation between demonizing police officers taking folks off the streets, uniform police officers off the streets, non-uniform officers, undercover officers off the streets, there's this having a dramatic impact on crime. And we're seeing that throughout the country. The major cities around the country have all seen an increase in crime, as we talk about defunding police, as we talk about criminalizing their behaviors, as we talk about making them personally liable for the actions.

Senator Tim Scott:

This is a section 1983 of the law and the section 242, that really makes it easier for us to lock up officers for doing parts of their job, and frankly, those officers being civilly liable for what happens while on duty. Those are very strong disincentives for police officers to do what it is that they love doing, which is taking care of our communities. And those spikes in crime will continue as long as we are having conversations around defunding police, and around making qualified immunity, making officers personally liable. When you have to make a decision between your family and doing your job, if you hesitate for a split second, that's a problem. And we can eliminate that problem by making sure that we maintain the same level. And that's not to say that officers should not be held responsible for their actions. They absolutely should be held responsible, but the question is at what level or threshold? And the current threshold is one that I support that we should keep. That is not the position that our friends on the other side of the aisle have taken.

Senator Tim Scott:

It's one of the reasons why the legislation has stalled. They wanted to enforce the demonization of officers as a part of this policy apparatus that I refuse to include those issues in the legislative vehicle that I've chosen to push forward.

Jim Copland:

Yeah, there's definitely some partisan divide that prevented action on this issue. And you talked about some of that with qualified immunity and other issues. As I would characterize it, another difference as I see it, reading your Justice Act and the Democrat alternative, I would say your approach is somewhat less heavy handed, a little less directive of what state and local governments are doing, than the Justice and Policing Act, the Democrat alternative. I mean, to me that makes some sense, given a commitment to Federalist principles. And of course, as we mentioned, the difference between big cities, small cities, suburbs, rural areas, et cetera. Also, you seem to be focused and your legislation a lot on gathering more data, trying to inform future decision making, not having all the answers that we may want today. What do you see as the principal advantages of your approach?

Senator Tim Scott:

Well, one thing I wanted to take a couple of notes on those two different questions that you were asking there, Jim, or at least statements. Number one, I do not believe that we should ever nationalize police, period. The Democrats have taken a very different position in some of the legislation. Whenever you say that we must ban the choke hold, in my opinion, the federal government does not have the ability to do that on the local level. It's one of the reasons why their legislation speaks to banning the choke hold, but does not direct it to be banned on the local level because they can't. Our legislation is very similar. We don't ban the choke at the local level. We do provide incentives for it. And that's an important distinction, and one that we should maintain. Nationalization of police is a terrible idea for the communities in which they serve. Having grown up in a single parent household mired in poverty, the last thing I want is the federal government in Washington, DC helping the North Charleston Police Department figure out what to do and what tactics to you use and not use.

Senator Tim Scott:

Second thing I'd say, is it the best way for us to understand and appreciate the nuances through the 18,000 police jurisdictions is to have data, data, data. The clearer the data, the clearer the direction, the more you should resource those solutions. But the other really important part of that important delineation between our legislation and the other side's legislation is that we believe that we should support local law enforcement by tying more money, not less money, to their efforts. It's the City of Minneapolis that have the power with a liberal mayor, a liberal city council. They have the power to do their own police reform. Cleveland, Los Angeles, Dallas, Charlotte, Charleston, Kenosha, every local jurisdiction has the ability to ban the choke hold, to have a duty to intervene, training on deescalation. What some of these jurisdictions need, maybe more resources to enact better policies. With 18,000 departments, they may need the best practices that they could use to employ, to make it better for the citizens within their jurisdiction. Well, that national policy, that national standard best practices can be established without having a national policy.

Senator Tim Scott:

Those are things that we work on in my legislation, but we do not believe one size fits all in 18,000 police jurisdictions, therefore leaving the decisions, the unique and specific decisions to the jurisdiction, is really important if we are to improve the outcomes. And frankly, one of the things that is missing in the conversation is things are infinitely better today, statistically speaking, looking at the data, than they were even five years ago, and that's a blessing for those folks who feel a little more nervous than they should when being stopped by the police.

Jim Copland:

So we've talked a bit about some of the differences in approach, but there is, I want to emphasize, a lot of overlap between your bill and the Democrat alternative. Each bill would create, at long last, a federal anti-lynching law, each has policy priority. I mean, again, the orientation's different, but policy priorities related to recent controversial police actions, the police use of force standards, in your bill called the George Floyd and Walter Scott Act. The standards for issuing residential no-knock warrants, the Breonna Taylor Act. Each bill would tie federal grant money in some form or fashion to the purchase and use of police body cameras. So given that there's so much overlap, and obviously we just had an election and there's still a couple pending in your body there in the Senate, but given that overlap in focus, why from your perspective, has there been no ability for the parties to compromise in Congress in light of the clear public support for at least some reforms?

Senator Tim Scott:

I wish the answer wasn't so simple. The answer is purely political. Folks have been willing to use the issue of police brutality as a wedge issue on the campaign trail. Something that as this election ends finally, we'll have a chance to go back to the drawing board and get something done. Literally some of my friends, interestingly enough, just to be blunt, the Congressional Black Caucus and other Democrats in the House have been talking with me for the last few months, since the defeat back in June, July of the Justice Act, they have remained engaged in conversation. My friends in the Senate on the other side have apologized to me for what they felt was a politically motivated vote required by their construct.

Senator Tim Scott:

That's a tough pill to swallow for me as a person who understands the very vulnerable nature of too many citizens and too many of these communities and our ability to respond swiftly was iced, frozen, paralyzed because of the presidential politics and the importance of having that issue on the table and not giving President Trump another victory within communities of color on top of HBC use, on top of opportunity zones, on top of all the issues that we fought for. And frankly, I gave the other side 20 amendments to change every facet of the bill that they disagreed with. I didn't tell them I would support it, but they would have 20 amendments to change anything they want. And why is that important? Well, I believe, you know this better than I do, when 81% of African-Americans say they want more money and more patrols, that means that the two sides aren't listening to the very vulnerable people that they serve.

Senator Tim Scott:

If we know that four out of five African-Americans want more police presence, why are we talking about defunding the police? If you could have 20 amendments to change the bill, why are you holding the legislation up? And then the folks went through to the floor of the Senate, my friends on the other side, and said that they were frustrated that we didn't even have a chance to debate the Justice Reform Act. Well, the reason why we didn't have the chance to debate it is because they voted it down. It was remarkable to see that on the floor of the Senate just a few months after they said no to the Justice Act.

Jim Copland:

Discouraging, but I guess politics is politics. It's good to hear that you're keeping those lines of communication open and talking to folks. And hopefully, as the political season ends, we'll be able to move forward on some of this. So I've asked a lot of questions. Is there anything I didn't ask that I should have or anything else you'd like to share with our audience while we have you in our limited time remaining?

Senator Tim Scott:

Well, the one thing I think is so important, and I said it before, I just want to reinforce that one point, and that is this, that true police reform is not the answer to all things that are happening in the minority community as it relates to police interaction. Improving education, critical, improving economic mobility, essential. If we looked at those two pillars, economic mobility and educational outcome, as part and parcel to the conversation about social justice and police reform, we would have a clearer picture with more progress, fewer deaths, fewer violations, and certainly more collaboration if we focus first on economic mobility and educational outcome. That is more important than any other issue, in my opinion. I was talking to some famous African-American actors and they all said the same thing. "Economic empowerment is more important than police reform, Senator." I was like, "Wow." I said, "Will you say that publicly?" They were like, "Well, maybe after the election," because they got lit up, so to speak, on CNN for making statements contrary to the current political dialogue on the left.

Senator Tim Scott:

I've spoken to NBA players, NFL players, actors all in the African-American community, and the one thing that they say is that things like school choice, opportunity zones tied together, gives the community a better way forward, which in and of itself deescalates the situations they face on a daily basis. I was stunned, frankly, by some of the liberal actors and athletes that were reinforcing the same thing that my conservative friends say all the time. That tells me that there's reason for us to be optimistic and hopeful about what we can accomplish over the next several months if we put politics to the side, the color line to the side, the blue uniforms and the black skin, put all that to the side and start thinking as one American family, we're going to do some things that will shock the world.

Jim Copland:

Your optimism is infectious, Senator. It's so good to hear someone who's willing to reach across the aisle, to talk to anybody and to try to fix problems and be solution-oriented. I want to thank you so much for taking the time to speak with us today, to share your perspectives on this vitally important issue area. And again, it is one issue area. It's an issue that in some ways is an outcome. And you're talking a lot about the inputs, which I think it's always important to remember. As our audience knows, and as I've said, the Manhattan Institute's policing and public safety initiative seeks to build on many of the themes we've talked about today. We're going to continue to engage on those themes and continue to talk to you and other leaders going forward. So thanks for joining us, Senator. Thanks for enriching our effort. And we really appreciate your time.

Senator Tim Scott:

Let me just say to the Manhattan Institute and your new initiatives around policing, thank you for doing so. Thank you for leaning into these issues. I hope you take seriously the issues around those precursors, the pillars, that are so important to economic mobility and educational choice. Those issues will have a profound impact on communities of color, as well as your son, Jim. These things will set us up for success in a way that nothing else can. God bless you. Thank you for taking the time and having me on.

Jim Copland:

Thanks so much, Senator.

Senator Tim Scott:

Thank you. Bye, bye.

Jim Copland:

And thank you to our audience.

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