Berkeley Talks transcript: Franklin Zimring on the tragedy of U.S. police killings

Listen to Berkeley Talks episode #111: "Franklin Zimring on the tragedy of U.S. police killings."

Jennifer Johnson-Hanks: Hello, and welcome to the 2021 Martin Meyerson Berkeley Faculty Research Lectures. My name is Jennifer Johnson-Hanks and I’m this year’s chair of the Berkeley Division of the Academic Senate. I’m honored to be with you here today to continue an esteemed Berkeley tradition that has endured for 108 years. This afternoon’s event marks the first of two lectures this year. Thank you so much for joining us. The Berkeley Academic Senate selects members of our faculty for this prestigious lectureship which recognizes the scholarly work of those who are among our most distinguished faculty members. Before we begin, a small housekeeping note, you can submit questions for professor Zimring throughout the lecture by clicking on the link in the lecture description at the bottom of your YouTube screen and I will read those during the question section.

Now, before I invite our chancellor, Carol Christ, to introduce today’s speaker, a few words about our chancellor. Carol Christ joined the faculty of the English department at Berkeley in 1970. She’s a scholar of Victorian poetry. Between 1985 and 2000, Dr. Christ served as department chair, dean and provost at Berkeley. In 2002, she became president of Smith College, and served there until 2013. Dr. Christ returned to Berkeley and then did a second women’s provost, before becoming our 11th chancellor in 2017 as the first woman to serve in this role. She is a role model for so many of us. It is my great honor to welcome Chancellor Carol Christ.

Chancellor Carol Christ: Thank you, Jenna. Good afternoon. It’s my great pleasure to welcome you all to the first of this year’s Martin Meyerson Berkeley Faculty Research Lectures, I’m delighted that you could join us. For more than a century Berkeley’s Academic Senate has singled out members of our faculty whose research has changed the trajectory of their disciplines. These lectures shine a bright light on an inseparable, irreplaceable part of our mission, the creation of new knowledge. The innovation creativity that fuels the quest to know and understand more are at the heart of our university’s antipathy toward the status quo, and our shared interest in making the world a better place.

Being selected to deliver the Faculty Research Lectures is one of Berkeley’s greatest honors. For members of the campus community and the broad public we serve, this is a unique accessible forum for the presentation of scholarly research of the highest caliber. This series also represents an outstanding and almost unbroken Berkeley tradition. Since its inception, 108 years ago, the Faculty Research Lecture was suspended only once during 1919, I should observe during the year of another pandemic. If only they had access to Zoom, the string might have been unbroken.

The two individuals chosen by our Academic Senate to give the 2021 Faculty Research Lectures are Birgitta Whaley, professor of chemical physics and director of the Berkeley Quantum Information and Computation Center who will be presenting next month, and Franklin Zimring, the William G. Simon Professor of Law, we’re honored to hear from today.

Now let me introduce Professor Franklin Zimring, Professor Franklin Zimring is a brilliant, preeminent pioneer in the fields of crime, criminal justice, and family law. Across an incredibly wide and diverse array of related subjects he has marshaled empirical research and rigorous social science methodology, to enhance our understanding of complex social challenges and advance the policies needed to confront them.

Professor Zimring attended Wayne State University, and earned his Juris Doctorate Degree from the University of Chicago Law School, where he became the only graduate directly appointed to its faculty in 1967. When Frank joined the Berkeley Law faculty in 1985 as director of the Earl Warren Legal Institute, he was considered to be the best in his field, and his stature has grown ever since. In 2006, he became our first Wolfen Distinguished Scholar, serving in that capacity till 2013. Frank is currently the William G. Simon Professor of Law, and the faculty director of Criminal Justice Studies at Berkeley Law. In 2020, professor Zimring was awarded the 2020 Stockholm Prize in Criminology, the fields top international honor. As one of his college’s emeritus professor Malcolm Feeley put it, Frank has a genius for identifying an important problem around which there’s muddled thought, and just drilling in and clarifying it and outcomes some stunning observations.

Suffice it to say that professor Zimring is an incredibly prolific author of numerous books and major research papers on subjects including juvenile crime and juvenile justice, deterrence incapacitation, criminal sentencing, trends in crime, crime control and capital punishment. He’s also done groundbreaking work in two areas that today are sadly at the very top of our national agenda, gun violence and police killings. In all of these areas Frank in true Berkeley fashion has not hesitated to speak his mind, and has not shied away from advocating for new evidence based policies and approaches to some of our most trenchant challenges. The quality of his work, the depth of his commitment to the truth, to reform, to justice, embodies the very best that the university has to offer.

Professor Zimring’s most recent book published in 2017 is titled When Police Kill. A powerful piece of work that offered the first comprehensive analysis of police use of lethal force in the United States, and provides an account of how governments can reduce killings by police without risking the lives of police officers, nothing could be timelier. And so, I ask that you join me in honoring and welcoming professor Franklin Zimring, who will present a lecture entitled "Police killings: an American tragedy.”

Franklin Zimring: Well, it’s going to take me half of that lecture to recover from the kindness and excessive enthusiasm of that introduction.

What I’m going to be talking about today is what I want to call the tragedy of unnecessary killings by police in the United States. About 1,000 times a year in the United States civilians are shot and killed by local police, and the authorities say that such killings were either necessary or at least justified. But even with those honorific labels that’s three killings a day, every day. And that’s too many violent deaths in the country which already suffers from an excess of violent death.

Most of these deaths are not necessary to preserve the life of the police officer or any innocent civilian. If the police didn’t shoot there would probably be no loss of life as a result. So in that sense, the majority of these police shootings do not contribute very much directly to public safety and should be avoided when they can be avoided.

But that’s the secret, when they can be avoided. But these are justifiable killings in a society which already suffers from very substantial supplies of regrettable interpersonal violence. Now how to reduce if we can, the share of civilian killings that are contributed by police in their interaction and law enforcement.

But if the police officer honestly believed that gunfire was necessary to protect innocent persons, he or she will not be charged with the crime and will not be convicted of anything. But unnecessary lethal force is still a problem. There still are deaths and it is still a regrettable public health problematic. Now the first chart, figure one, which has been put on your screen gives us a general international comparison of all killings by police for five prominent, developed countries that are normally considered comparable to each other, United States, Canada, Australia, Germany, England and Wales. But they are not directly comparable when you compare them to killings by police as a rate per 100,000. The United States has five times the rate of killings by police as the second most prominent killings by police environment, which is Canada, and almost 25 times the rate of Australia, and even larger magnitudes when you compare it with Germany, England and Wales.

So, we are a developed country, but we are a developed country with very substantial rates and experience of violence of all sorts, and that is led to killings by police with a corrected U.S. rate, which is anywhere from five to 30 times that of other comparable developed countries. Now, the ideal way of passing rules to try and reduce the rates of killings which are regrettable even though they are also non-criminal is to find restrictive police policies on killing citizens, which will probably have to operate through the administrative regulation of police by police departments. If you ask who governs police in the United States the answer is: Police have to govern police. It is an administrative process, and saving civilian lives should be a very important part of every police chief’s job.

But police chiefs also want to support their police officers, and often find and assume that the shootings are fully justified. So, the question as an administrative question is how to motivate police administrators to protect civilians as much as they can, but also to protect civilians from their own police behavior. This is where money can talk. If courts award sufficient and significant money damages in cases of wrongful death that result in civic recoveries, municipal governments and police administrators will be motivated to avoid the fiscal pain. Most of the killings by police in the United States are not criminal, but they are nonetheless regrettable and result in major social costs. The less killings we have, even if justifiable, the better the society that we’re living in.

So, that the potential of financial loss, in this case, is intended to motivate police administrators to save civilian lives. And tight administrative rules, what police can’t do, what police are punished for doing, what police are rewarding for avoiding are a very good way of reducing the unnecessary death rate for most major police departments in the United States. So, killings by police aren’t necessities in many search circumstances, but they are costly necessities. And the less violent killing by police, as well as by citizens the better the country we’re living in. So, those are the circumstances that motivate what should be extremely tight regulations for police officers from their police forces to shoot only when necessary.

The problem is that in a high-violence environment like the United States, that is a very frequent number of situations where interactions between police and citizens result in violence and life-threatening violence, which threatens the police and threatens the civilians. The high-violence environment in which American policing takes place is a very important organizational characteristic of policing. It makes it more dangerous. It makes it more important, and it makes it more subject to public scrutiny. And this brief presentation has been an introduction to one branch of that public scrutiny: The killings by police as a high-American rate, which is apparently necessary to continue police safety administration on the streets.

That is a brief statistical profile of where the statistics on police use of violence interact with the tasks of police administration in the United States and it creates major costs, and major problems. But is also an unavoidable part of what is policing big cities with high rates of violence in the United States of America. That is the fundamental framework that I wanted to impose on the statistics. And with that data already presented I would be very happy to respond to questions, and to integrate what it is that we think we know about violent interaction between police and citizens into the topic of today’s research. Is somebody going to administer a Q&A process here?

Jennifer Johnson-Hanks: Frank, this is Jenna again. Are we ready to move to the Q&A now?

Franklin Zimring: Yes.

Jennifer Johnson-Hanks: Wonderful. So thank you very much for that engaging address. Audience members, I remind you that you may submit questions by clicking on the link in the lecture description at the bottom of your YouTube screen. I have gotten a few questions in here and I’m sure there’ll be more coming. Frank, professor Zimring, could you please start by just talking to us a little bit about how we should think about the relationship between police killings and other kinds of killings. You’ve done extensive work on a variety of kinds of violent crime. How do you think about the relationship between those kinds of deaths?

Well, in the first instance, when you talk about the special problems which put pressure on police to use or anticipate life-threatening violence, it is that you’re dealing with a society which has hundreds of millions of guns. And guns are, among other things, the most life threatening threat to police on the streets, visiting homes, doing their jobs that exists in the United States. So, what you have is a relatively high violence potential that police have to respond to. That’s one of the reasons why police carry guns, that’s why police use guns. But what it also does in that sense, is completely reframe around the fear and the prospect of this kind of life threatening violence, almost every interaction of police with citizens.

Yeah, I think that answer already addresses the next question that came in is about why there are so many more police killings in the U.S. than other countries. But I think you’ve really already spoken to that.

In the first instance, police have to carry guns, because so many of the people they police are carrying guns, unilateral disarmament is not a happy event. So, you always have the possibility of life-threatening violence being a part of interactions on the street. I cannot say that it happens an enormous amount in the U.S., and most police conduct careers without being subjected to life-threatening violence on a continuing basis. But it is a fact of life, the prospect of violent death on the streets which informs not merely the definition of police work, what it is that we want our police to do, but also how our police have to do it. And what they have to be consciously aware of when they are attempting to police street safety.

Jennifer Johnson-Hanks: That’s a very compelling and interesting way of thinking about it. I’m getting in a whole series of questions here about your proposed remedy, about high-cost fines for police forces in cases of violent, in cases of police killings. So, the first question that arises is just why have we not implemented that policy already if this would be effective, and it would seem relatively uncomplicated, what has held us back from implementing these very costly fines that you’re talking about?

Franklin Zimring: Well, there are two different countermeasure remedies that are used to control police violence when it has gone over the boundaries that we think are permissible. One of them is that when killings and woundings take place, there are money damages that are frequently awarded to victims. And the second is police discipline of police. And that is most impermissible police use of violence in street settings is also a violation of police rules and so, police are punished. That is far less a consequential damage than a criminal conviction. But it’s plenty of incentive to encourage police to abide by the rules and regulations to control violence that police forces provide for them. Remember, a high-violence environment is one which affects also how police feel when they’re on the street. What risks they presume are there and how great their fear and tendency to react perhaps early would be if they are not trained and disciplined to control themselves.

Jennifer Johnson-Hanks: Yeah. So now, we’re getting in a series of questions. Continuing on the possibility of thinking about the solution that you propose and other possible solutions. Several of our listeners are asking about the possibility of either banning assault weapons or large-capacity ammunition magazines. About reducing the general abundance of criminal weapons, if reductions of supply of firearms might directly or indirectly reduce police killings as well.

Franklin Zimring: Well, and this is going to be a good news and bad news joke. Let’s begin with the good news: If you could reduce the number of operable firearms that potential enemies of police or citizens are carrying on the streets, that would reduce the need for police to constantly think about their own use of defensive violence and to anticipate the potential of violent attack in many settings which are business-as-usual in city patrols. So, if we had less guns on the other side, if it were a somewhat less-exciting urban environment, it would be an easier one to police and the police would have to shoot their weapons considerably less often than if danger is encountered on a continuing basis.

But the problem is that you have to, when you are policing the city street, sort of desire the best and plan for and make precautions for the most dangerous environment that is going to confront the police person, and also to confront the citizens that the police person is there to protect. So, if it’s a dangerous environment, damage control and risk control is still very important, but it is also got a limited upside. There is a reason why police carry instruments of deadly force and think about them rather consistently when they are doing urban policing in circumstances where they don’t feel they can completely control.

Jennifer Johnson-Hanks: Thank you. You’ve said several times here that, you’ve talked in a very interesting way about the way that police think and the way that they’re obliged to defend themselves, or think ahead to defend themselves. Several of our audience members are wondering whether either making different kinds of hires into police departments or altering the way that we school and train police officers, if we might be able to either hire people who think in a different w ay intuitively or if we might be able to induce them to think differently by teaching them differently. Do you see any chance for optimism there?

Franklin Zimring: Well, surely, but the question involves something that an awful lot of police I know would very much heartily disagree with. It suggests that the reason police are prone to worry and to shoot is their attitudes and not the inherent dangerousness of the activity that they’re engaged in. And the signals that they’re getting from street policing among strangers. This is not a low-risk business, and the reason that police have to carry instruments of deadly force is because instruments of deadly force are prominent and more than occasional threats that the police are going to encounter in doing their jobs. So, it would be wonderful to have police with better attitudes. But what the police would also like is to carry those better attitudes into environments which are also less life-threatening dangers.

Jennifer Johnson-Hanks: Yeah, That’s very clear. You’ve several times now spoken about these killings as regrettable and not criminal, but regrettable. Could you talk a little bit about the legal category of not criminal, but regrettable. Do you think that the current state of criminal law is correct in this regard? Would there be any benefit or wisdom in moving the line of what counts as criminal action by police in the case of police killings?

Franklin Zimring: Well, okay, so the first question is this, there are things that police can do with the instruments of deadly force that they have, which are unreasonable and are regarded as criminal. And also, I would add, as subject to disciplinary proceedings, because remember, police cherish their careers. They’d like to be promoted. They don’t need to be punished by police departments. So, there are real incentives to comply, not only with the criminal law standards, but also the standards of justification that are imposed by police departments.

But that said, at the end of the day, there are still going to be a large number of circumstances in any urban police department, where instruments of deadly force are necessary as far as the police are concerned, within the rules that they impose, and often even there, sometimes mistakes are made. So, the potential for regrettable high violence is something which comes with the territory of urban policing. Police can’t decide how many guns are going to be in the cities they police. And that has to determine what their own policies are for carrying weapons of deadly force and for rules about engagement in using them.

Jennifer Johnson-Hanks: Thank you, several of our questions now address the political scene of the last year and particularly the role of race in policing. Could you talk a little bit about the role of race in all of this, and, for example, the statistics of the races of those killed and police officers. And if you have any advice for people who are thinking about race and policing how most usefully they could do that?

Franklin Zimring: Okay, well, when you talk about race and ethnicity as an influence on the rates at which police are involved in use of deadly force, either by police against them or against police in interactions with them, the rates are higher for urban minorities, urban minority males. Sometimes, literally, approximately double the rates of white non-Hispanic, non-African Americans in big city police departments and environments. So, that is a very problematic, but essential characteristic of what the risks are. And that’s the risks for police, and also police risks in dealing with citizens who it is their duty to protect, it makes life tough.

It also means that policing can be a potentially very hazardous job, police carry instruments of deadly force. But police aren’t the only people that carry instruments of deadly force in urban street environments. And those possibilities put very definitional constraints on what police can do and can’t do, and what they have to fear, and whether they’re going to make mistakes in using deadly force. Police in the United States make those mistakes, they make them frequently. But one of the reasons they make them frequently, is that the circumstance for making those hard decisions, for calling the tough questions, for dealing with a stranger who may be armed and who you don’t know. That’s tough work and it’s not unrisky work.

Jennifer Johnson-Hanks: Certainly not unrisky. One of our audience members is curious that the rates of police killings vary very significantly both between different police departments within the U.S., and within single departments over time and even across different officers. Some of that is likely driven, as you’re saying, by differential rates of riskiness on those streets, but are there other reasons for that variation?

Franklin Zimring: I’m sure there are. But the real question is: Can you do a definitive study? And then, once you’ve done that, if it were good to find just all the really dangerous actors and everybody else could have all the guns they want, it would be a much safer environment to police in the United States. It’s also probably impossible. What we do instead is pay very close attention because police are armed with deadly weapons. And when a police job performance has involved serious rates of dangerous behavior, then there is a disciplinary intervention which police management has to make. But once you’ve done that, you still have street environments where police need to have deadly weapons and where they’re not the only people on the streets with deadly weapons. So, the environment, not just police profiles and police preferences, are one of the reasons why the risks are substantial and why police have to confront very tough decisions about risk on a not-infrequent basis.

Jennifer Johnson-Hanks: Thank you. I think we have time for just one more question. And there are a whole number that have come in, but I’m going to just select this one, which is: Could you talk a little bit about what you see as the stakes for us as a society in reducing police killings. Is there a bigger message that you’d like to convey about what kind of a future, what kind of an America, we might be able to achieve if we were able to reduce police killings?

Franklin Zimring: Well, it would be very nice. And I think it is also important to emphasize that the risks of street policing and the likelihood that police are going to be on the receiving end of life-threatening violence is substantially less than one might think, given how easy guns are to acquire and use and how frequently they’re on the streets. We’ve already done a pretty good job of keeping police and ordinary citizens on the street an awful lot safer than they could be. The situation is dangerous, it does require danger management and the danger management of civilians with guns, as an important part of the urban police mission. But it is not an ungovernable situation and, by-and-large, police administrators have done better jobs, and police have done better jobs than we frequently give them credit for.

Jennifer Johnson-Hanks: Thank you so much, professor Zimring, for this very enlightening presentation, this super-engaging conversation. Thank you also to all of our guests for the questions that you’ve submitted. There were too many for us to cover all in one lecture, but I hope we were able to capture enough to address some of your key questions and spark all of you in further discussion and contemplation.

For all of you at home, I want you to know this lecture will be available online following the event at facultylectures.berkeley.edu, so that you can watch it again or share it with friends. And thank you everyone for being here. I look forward to our next lecture coming up next month. I hope all of you have a wonderful rest of your day or evening or morning wherever you’re joining us from.

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