OBAMA, FBI DIRECTOR SPAR OVER THE ‘FERGUSON EFFECT’ ON POLICE

By Jordan Fabian

The Hill
November 1, 2015

President Obama and his FBI director are sparring over whether the so-called “Ferguson Effect” is real, complicating the president’s push to loosen the nation’s sentencing laws.

The dispute could threaten the growing bipartisan momentum behind a criminal justice reform effort that Obama sees as a top second-term priority.

The question of whether police are reluctant to enforce the law because they are afraid of being videotaped has become the subject of fierce debate, as experts struggle to explain an uptick in violent crime in some U.S. cities.

FBI Director James Comey, a Republican, amplified the argument twice over the past week, suggesting anti-police sentiment fueled by the killings of unarmed black men in places such as Ferguson, Mo., has resulted in a crime spike.

“Some part of the explanation is a chill wind blowing through American law enforcement over the last year. And that wind is surely changing behavior,” Comey said in an October 23 speech at the University of Chicago Law School.

Obama pushed back against that idea, arguing the existence of a violent crime wave is not supported by statistics, even while acknowledging rates are up in some major cities.

“We do have to stick with the facts,” Obama told the International Association of Chiefs of Police last Tuesday in Chicago. “What we can't do is cherry-pick data or use anecdotal evidence to drive policy or to feed political agendas.”

Obama added it is unfair to “scapegoat” police officers for the broader breakdown of relations between law enforcement agencies and the communities they serve.

“I know you do your jobs with distinction no matter the challenges you face,” he said. “That’s part of wearing a badge.”

Obama and Comey reportedly met Thursday at the White House. Despite their differences, press secretary Josh Earnest said the president appreciates Comey's "constructive contribution" to the criminal justice reform debate.

“I would expect Director Comey will continue to participate in all of those debates and he’ll do so with the full confidence and support of the president of the United States,” Earnest said.

The debate over the “Ferguson Effect” is occurring at a time when Congress is weighing a sentencing-reform measure that many view as the first step in turning back the country’s three-decade-long focus on mass incarceration.

If the public believes police officers are hesitant to actively prevent crime, that effort could be stopped in its tracks, observers say.

“What I am worried about is that this rise in crime is being used as an attack to those seeking reform,” said Jonathan M. Smith, a former top lawyer in the Justice Department’s civil rights division. He led the investigation into the Ferguson Police Department following Michael Brown’s death.

“People in the community are going to falsely say we can’t afford to have reform because of the implications for public safety,” Smith added. “The thinking goes, ‘If we criticize our police, it will cause crime to rise, so we have to accept the status quo.’ ”

Obama has acknowledged that “we will lose the public” if country adopts sweeping changes to the criminal-justice system and a crime spike ensues. “Suddenly we’re back into the politics of lock them up,” he said this month at a forum with the Marshall Project.

But there is little hard evidence that police officers are shirking their duties. The FBI only releases crime data once per year, making it hard to draw definitive conclusions.

“Nobody says it on the record, nobody says it in public, but police and elected officials are quietly saying it to themselves,” Comey said. He said officers from one big-city precinct told him, “we feel like we’re under siege and we don’t feel much like getting out of our cars.”

Thirty of the biggest U.S. municipalities have seen increases in homicides compared to last year as of the end of September, according to data provided by the Major City Chiefs Association.

In Baltimore and Milwaukee, murders have jumped by more than 50 percent. Washington, D.C., has already seen 129 killings this year, compared to 105 in all of 2014.

But Obama and civil rights groups note that murder rates have reached historic lows in the past couple of years, and say the uptick, though unfortunate, does not necessarily signal a new 1990s-style crime wave. To put the numbers in perspective, 397 people were murdered in the nation’s capital in 1996.

A new Justice Department report shows ambush attacks against officers remain a threat, with a steady average of 200 occurring per year over the last decade. But the data does not cover the past two years, making it difficult to say whether attacks have spiked due to anti-police sentiment.

Jon Greenbaum, chief counsel for the Lawyers’ Committee for Civil Rights Under Law, argues there is no statistical proof that increased pressure on police is connected to the increase in violent crime.

“I just don’t think we know the answer to that one way or another,” he said. “Not enough time has passed. I don’t know if anyone has studied it in any comprehensive way. That’s [Comey’s] opinion, he may be right or he may be wrong, but he is speculating.”

Criminal justice reform advocates argue it's a good thing if officers' interactions with the public are recorded, and many are pushing for the mandatory use of body cameras.

“By having a record of those interactions, if the police officer is doing the right thing, that record is going to support what the police officer did,” Greenbaum said. “There won’t be a debate over, he said, she said.”

Heather Mac Donald, a fellow at the conservative-leaning Manhattan Institute, believes officers have pulled back due to increased scrutiny. “It’s highly significant” Comey agrees, she said.

“The FBI is the nation’s premiere keeper of crime data and Comey has a pretty clear sense in cities across the country,” she said. “Historically, he is no facile apologist for police officers. So I think this is a strong conformation that he has heard from officers that they are reluctant to engage.”

Mac Donald cites reports that discretionary arrests and stops by officers have fallen in high-crime areas in cities such as New York, Baltimore and Los Angeles.

The debate over the “Ferguson Effect” has spilled over into the race for the White House, with Republican presidential candidates echoing Comey’s critique.

During last Wednesday’s GOP primary debate, New Jersey Gov. Chris Christie (R) said officers are afraid to get out of their cars “because of a lack of support from politicians like the president of the United States.”

Other candidates, such as Sens. Marco Rubio (R-Fla.) and Ted Cruz (R-Texas), also argue Obama has not done enough to defend police.

On the reform front, a bipartisan bill to loosen federal sentencing guidelines for certain nonviolent offenders passed the Senate Judiciary Committee earlier this month. A companion bill is also being considered in the House.

But it’s not clear when the full Senate will take up the measure. The upper chamber is unlikely to vote on it this year, according to Don Stewart, a spokesman for Senate Majority Leader Mitch McConnell (R-Ky.)

That means a vote on sentencing reform could take place in the heat of an election year.

But advocates believe the diverse coalition behind criminal justice reform — which spans the ideological spectrum from the conservative Koch Industries to the liberal Center for American Progress — will hold together.

“I think it is going to be hard to say right now whether this is going to have an effect on the debate or whether this will blow over,” Greenbaum said.