as well. as "washington journal" continues tomorrow at 7:00 a.m. we'll see you then. [captions copyright national cable satellite corp. 2015] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> coming up this morning on c-span a discussion about the use of body chemist by police. then, a hearing on the v.a. budget and health care for veterans. that is followed by discussion on u.s. national security and defense with the chair of the house armed services committee mac thornberry.

mamma this summer, booktv will cover book festivals from around the country and top nonfiction authors and books. and the little of july, we are live at the harlem book fair the nation's flagship african-american book fair of that. in the middle of september, we are live from the nation's capital at the national book festival, celebrating its 15th year. >> like many of us, first families take vacation time. like presidents and first ladies, a good read can be the perfect companion for your summer journey. what better book than one that peers inside the personal lives of every first lady in history. "first ladies: presidential historians on the lives of 45 iconic american women."

a great summertime read, now available through your favorite bookstore or online bookseller. >> after several high-profile shootings of citizens by police officers, the brennan center for justice discussed the use of body chemist by law enforcement. they talked about concerns over technology and the guidelines that would need to be put in place if officers started wearing cameras. this is just under 1.5 hours. >> i'm happy to see you this afternoon for an important discussion on candid cameras. the impact of cameras on policing. we know we're at an extremely important moment at this time in our country with the

intersection of law enforcement, race, politics, constitutional rights. and we know it's an important moment for those of us in the advocacy community to be thought leaders on these issues. we're pleased to be hosting this conversation today. this conversation was really the brain child of my colleague rachel levinson waldman who is one of the panelist, part of our liberty and national security program at the brennan center. for those of you not as familiar with us and what we do, the brennan center is a national advocacy think tank communications organization. i know that's a mouthful. we like to do what we call fix the broken parts of our systems of democracy and justice. we deal with policing, privacy civil liberties and civil rights as well as voting rights, fair courts, money and politics and issues of justice with respect to our criminal justice system.

we use those tools of advocacy litigation, research and advocacy to try to fix the broken systems in democracy and justice. as part of that work we host conversations like this where we try to engage you, interested individuals and stakeholders we know who can be a part of our efforts to make reforms and basically problem solve. again, thank you for being with us this afternoon. i am going to quickly introduce our moderator for today's discussion, and then she will take it away and begin the conversation with our panelists. we will be joined today, and we are happy to be joined today by tanzena vega, digital correspondent for cnn politics where she covers the intersection of technology politics and civil rights. prior to beginning her work at cnn, she was a staff reporter

for "the new york times" where she covered digital media and advertising for the business section, race and ethnicity for the national section and the new york city courts for the metro section. she was also a web producer for the times and joined the paper in 2006 as a news clerk and a stringer. she began her career at cmp media which is a technology and trade magazine publisher where she was a research ed toward and helped pioneer the company's first podcast. one of the things about her background that i'm particularly impressed with as an npr junkie, the code switch included khan zena in their journalists of color to watch. "huffington post" listed her as one of the 40 top latinos in american media. we're pleased to have them help us this discussion today. without further ado, i'll turn it over to you. >> thank you, nicole and thanks to everyone for being here today. before we introduce the panel, i just got back from camden, new jersey, which used to be one of

the most dangerous cities in america. in addition to the surveillance cameras and audio recorders and license plate readers that the department is about to deploy more than 300 body cameras in september. crime rates in the city as a result have been drastically reduced through what officials say is a combination of technology and old school policing. camden is not alone. we live in a world of video everywhere, from youtube to cell phones inundated with a constant stream of media. the power to create media is in the hands of citizens. michael brown, tamir rice, freddy gray are a few of the names of victims of police brutality that might have gone unnoticed had it not been for someone recording or snapping a photo on their cell phone. many police departments around the country are realizing they too, want to record video to increase transparency, and also to protect themselves. the solutions are not that simple.

today's panel will help us unpack some of the complexities involved with implementing this emerging technology. i'd like to introduce our panel. jay stanley, a senior policy analyst at the aclu. then jim year meaman president of , the police foundation. next to jim we have andrea richie, senior policy council of street wise and safe. and at the end of the row, last but not least, rachel levinson senior council at the brennan , center for justice. thank you all for being here today. to start off, i think it helps to talk about the scope of body cameras and penetration of body cameras. does anyone have a sense for how many body cameras are out there, what the percentages are? this is something we hear called for consistently. it's hard to give a scope to some of our listeners and readers today. where are we with that? how long before we actually get to full penetration of body cameras in the united states? anyone. >> the last surveys i saw which

may be about a year or more old suggested about 25% of the 17,000 or so police departments in the u.s., about 25% of them had some or were -- had some body cameras at least and 80% of the departments were considering adopting them. we know uptake of the technology has been happening very quickly. i wouldn't be surprised if ten or 15 or 20 years it becomes a standard piece of equipment on every uniformed police officer. >> we're definitely heading in that direction it seems. what are some of the examples where this is working? there are some cities and states that have implemented body cameras that seem to have more success than others. i'll throw a couple of examples. seattle perhaps is implementing -- upheld as one of the most forward thinking perhaps. los angeles, texas, different

areas with mixed reactions. where would you say are some areas that should be held as positive examples or good examples where this is working and some that might be a little bit less. >> i think it's important to ask the question, what do you mean by it's working. how we perceive this issue is dependent in large part on where we stand on the issue. i'm from southern california. that's where my policing career was. and a community near my hometown the rialto police department is often quoted as doing their own randomized control trial with those body cameras which has the most remarkable attributes that a police department on their own would do that. they found dramatic decreases in officer use of force and complaints. if those are the metrics we want to use, that is highly

suggestive that that's working. there have been other studies that may not have had the same kind of numbers but certainly had decreases in officer use of force and complaints. so as we think about that on some 5,000 foot level, that sounds like a great thing and i would submit that it is, what we don't know conclusively is why that's happening. why did those numbers go down? is it because the cameras -- there's nothing magical about these little boxes the cops wear. they're just a little thing right? they could have done this a long time ago. is there a civil lizing effect that occurs when officers wear those because they they -- and if they tell the person they're interacting with they're wearing the body camera, is it the same phenomena that occurs that when we were kids and we knew the parents were watching. and if we're in the classroom

and the teacher is looking at us we'll behave better. is it something as simple as that or something that relates to other transparency and accountability. seattle, as we speak now, is finishing a summit on body wham -- body cameras and certainly have pushed the envelope in terms of things like transparency. if that's how you -- and privacy issues. if that's how you measure success for them, i would hold them up because they're pushing out the images, not in realtime, but pretty close to it on their youtube channel that are blurred as a massive redaction in protecting people's privacy. i think people should pay a lot of attention to what they're up to right now because when you begin to -- as you said earlier, unpack this issue, you find there are so many issues involving body cameras, ever thing from privacy to storage, the practical nature, rising expectations. >> i want to piggyback on what jim was saying and how we kicked off the comments. it depends on what we mean by working. issues of use of force going down, arresting going down.

a study just came out from mesa, arizona, similar to rialto, a set of police officers who volunteered to wear cameras, set of police officer told to wear them and a set that wasn't wearing them at all. it was a comparison of what does their day look like? what are their enter actions with the public. similar findings in terms of use of force. the citations given, the number of citations given went up which could be a good thing or a bad thing. then you have to figure out do you want more citations? the theory is that officers were worry if there were circumstances where before they would exercise discretion, now there might be somebody looking over their shoulder, a supervisor looking over their shoulder saying, you could have given a citation out for whatever it was and you didn't. so those went up. i think there's also, to some extent, a kind of ineffable

piece, but it will be interesting to see how it plays out about what it means generally for the relationship between the officer and the department president and the community as a whole. does it help the relationship in some ways, in many ways if uses of force are going down. how does it affect the relationship if there are more citations, how does it affect the relationship to have this camera mediating those interactions in a variety of ways. that i think is probably something we don't know the answer to yet although we're getting anecdotes from different communities about what that feels like. >> before we started this, i had asked on twitter if people had questions that they wanted the panel to ask. so piggybacking off that, one of the questions came from a twitter user who said how do the cops themselves feel? my brother quit the force and this was a big factor in doing so so. jim, maybe you can weigh in on that.

are officers themselves concerned about this? are they giving more citations because they feel pressure from police administrators to implement this? does it make them feel perhaps more secure or more nervous. them a this is a very complicated issue. it depends. one thing we don't spend a lot of time studying and policing research is the policing culture. it's the culture, not only overall, but more specifically the department culture that drives a lot of how officers perceive their work, do they feel does the administration the police chief and their supervisors support them and how things are messaged. one of the things around mesa, what's the organizational culture like in the temperament.

we talk a lot in policing. i think the most important issue in policing is this issue of police legitimacy and procedural justice. when we talk about that and you talk to police officers and say we want you to do that, they'll go, ok, chief, you want us to do this externally, when are you going to do it internally? cops have their own per spec -- perspective of how they're treated internally, how things are messaged internally. if the leadership of the department is good in terms of messaging what's in it for the officer they're much more likely , to say i need that if for no other reason it's going to support my assertion i did the right thing, prove i did the right thing. if it's not messaged correctly cops will say this is another way for you to monday morning quarterback that very tough decision i had to make in a split second.

you get into the notion of depolicing where the officers says i'm doing what i have to do, in the furtherance of my job trying to protect you, you might prosecute me and take away my livelihood and ability to take care of my family. my experience has been that police officers understand the value of having a recording device in my department, we had audio recording devices for my whole career. they understood the value of using those because it almost always exonerated the officers. there were instances where it didn't. it actually supported the complain tant's position on that. we didn't have problems around the discipline related to that. i think some officers are going to say this is terrible and i'm getting out of the business because of it. a lot of people say it is just the way it is now.

as you said a moment ago, in five years this will be stan considered -- in my opinion this will be as ubiquitous as handcuffs or radio or handgun. it's just going to be part of the job. >> one of the things we often here is this changes behavior on both sides of the camera. it seems to be affecting police behavior. is it changing community behavior. do communities feel -- do people feel more -- are they aware this is happening? we're constantly surveilled. in camden there are 120 surveillance cameras in the city alone, constantly feeding video into a centralized database? does it change be haif your on the other side of the camera for the police officers and the communities they're trying to protect? >> one level is yes. it's obvious and some of the studies back up there's this civil lizing effect which to any sort of person who is steeped in privacy and civil liberties is a

slightly spooky term. the deeper question is what does that look like and what's the shape of that. it's too early to feel the full sociological effects of this. for better or worse, there are more and more cameras, government-run surveillance cameras which we opinion pose -- oppose which watch people whether anybody is present or not. everybody is carrying a video camera in their pocket, on their bicycle helmets, car dashboard and so forth when you're being watched all the time, that's not a good thing for the american public and public spaces. there are chilling effects. it might take a while for people to realize how under surveillance they are. it may have chilling effects on american life. when you're in the presence of a uniformed police officer, you're already chilled most of the time.

you're going to watch yourself in a little bit. in some ways those cameras probably have less chilling effects than most cameras as opposed to a camera sitting up there and you and your lover are the only two people on the street and there's some camera watching you, that's a completely different kettle of fish. one of the reasons we have not been totally against body cameras, we're against them if the policies aren't good, but the reason we're willing to accept them p the policies are good is that you're in front of a uniform police officer and if you do something illegal and there's no camera, you're going to go into court and the officer is going to say i saw him do that. it's still your word against the officer. the officer's word is always going to win. uniformed officer against an accused criminal. dmou there's a video. if you did something illegal instead of just the officer's

word, now they have video to back it up. how much of a difference is that? versus, now if the officer is lying, you have some protection. >> i think there's some question -- at street wise and safe we focus and work with youth of color who are obviously some of the populations who are -- the population most targeted by discriminatory policing practices body cameras are intended to protect. we physically work with lesbian, -- we specifically work with lesbian, gay, bisexual and transgender youth of color who have experienced homelessness. they're a population at the intersection of a lot of different kinds of discrimination including discriminatory policing. we've had a lot of conversations about body cameras and this question of will it actually prevent police misconduct, prevent the kind of policing practices they experience on a day-to-day basis. for them and for many people who are in the larger coalition that we're part of in new york city, there's more questions than

answers. and i think particularly you're talking to a community that just watched two police officers choke a man to death on camera knowing they were being filmed that watched police officers put a seven-month pregnant woman on a choke hold on camera, knowing they were being watched. can find on youtube countedless videos of police officers engaging in abusive behavior. i think they have solid questions. they heard from new orleans, a police officer turned up their body camera, walked up to someone, shot them, and turn it back on again. they have questions about what the policies are going to be and how the programs will play out before they feel confident that it will actually change police officer behavior towards them and think there's still a lot more questions and answers. a lot of cost-benefit an nat sis -- analysis that needs to be

undertaken as well. >> oftentimes we hear it's communities of color and lower income communities that are the ones that are more heavily policed and will be more heavily surveiled. is that something you're hearing as well in terms of being a concern for the use of these body cameras? >> very much so. i think people are particularly concerned about the impacts of surveillance given who they are and what it looks like, for instance, in washington state the video is almost live streamed on youtube. if you're a young queer person of color who appears in a particular way, perhaps in a particular context where you feel safe, you don't necessarily want that same footage up on the internet where others might see it who may not be as familiar with you appearing in a particular way. also a concern in washington state was vice raids that went up on the internet. don't get me wrong. vice raids are a concept where tremendous abuse takes place. there is a desire to document

that police violence, but it's also a tremendous invasion of privacy. to have that footage up on the internet is a triple concern. there's now people who are accused of engaging in prostitution who were half clothed in the videos whose videos are up on the internet for anyone to see. i think that's a particular concern folks have. i think the broader surveillance concern, particularly for homeless people who have nowhere else to go and constantly in public space. >> can i add on one other piece, just in terms of the contribution of the cameras to accountability, and this is maybe playing off something that jay had said which is that, as we know, what the camera is capturing is what the officer is

seeing. it's capturing the officer's behavior only insofar -- reacts to something the officer is doing. you might be able to reach -- obviously would capture something like the sound of a gunshot, things like that. but it's a fairly narrow view -- videos from body cameras depending on where it's warn sometimes you're looking at somebody's chest, you can't make out the whole area. in some ways, it is good probably from a privacy and , civil liberties standpoint, we have a broader concern about a camera showing a really panoramic view or something that somehow enabled a top-down. i think it does also speak to the limitations of what you're getting from a camera, a narrow view, and it is really of the person having the intersection of the police officer and not the police officer themselves. >> i feel a lot of the examples you gave where there has been accountability, people felt there was some success in being recorded, was community based recording, creating a culture

where if there's interaction going down, that people feel concerned about, that we all start recording. there's also questions about what happens with that footage and we need to come up with some agreements about how that is used. i think that feels like a different experience. >> it's important that policies are put in place that turn this analogy into one that is an accountability tool and that will shift power to protect communities, especially communities that have bad relationships with their police departments. there's a real danger these cameras would become just another means of police exerting power, if they have complete control over which videos get released. a lot of police departments that support cameras, they want complete control over what gets released.

the inevitable result will be when an officer saves a baby from downing, the video will be on the news. but when the officer does something dodgey, they'll keep that under wraps. also it's important that other policies be good as well in trms of when the recording is taking place and so forth. i think the suspicions of the clients that you work with may be well-founded. i think if good policies are put in place, they can be a good thing and they can be dealt with. but we are seeing departments where they have good body camera policies, but they're not enforced. so an officer is supposed to be turning it on but doesn't turn it on and shoogts somebody and says, i didn't have it on and there's no consequence or discipline, in those cases body cameras are not going to be a good thing. >> is there a consensus of when you turn it on, when you turn it off? is there a broad as can be agreement, it should be on 90% of your shift, or if it should

be on 90% of your shift or 100% of my shift and i have a tip for you and i don't want to be filmed or i have a sensitive situation, a domestic abuse situation, are there or should there be times when the officer should be allowed the turn it off? do i as the person with the tip or with the sensitive case, do i have the power to tell the officer can you turn it off? when do you turn on, when do you turn off? i >> there's two answers. i think it's fair to say there's a broad consensus the cameras should be turned on whenever an officer is involved in a law enforcement action or call for service or any en count thaer becomes hostile in any way. there have been some proposals and we initially called for this, that basically all interactions with the citizens be taped. it's not really happening. i don't see many departments doing that. we have actually backed off that because the privacy consequences are much worse. there is a danger that, if you

give police utter discretion to turn it on and turn it off they'll engage in abuse, turn it back on. it's important police officers not have discretion but have clear rules about when the video is expected to be on. we have called for officers having -- turning it off if they're interviewing a crime victim, if the crime victim wants it up, entering a private home. if they're doing a s.w.a.t. raid, we want them on because there are so many abuses in s.w.a.t. raids. or if they're getting a crime tip from somebody who wants to whisper to the officer and doesn't want it on video, those are reasonable exceptions. if the officer is in line to get doughnuts and wants to chat with people in the community, there's no reason for the camera to be on in that situation. >> i think this highlights who smising from that panel right now. i have to tell you, our elected officials. so much of this is driven by what state law says or what the mayor says.

if i was a mayor and i had a police chief who turned off the camera, shot somebody and turned it back on, i would be looking for a new police chief. this highlights the role of elected officials in laying down state legislation. but also highlights the difficulty for police officers who tend to be very pragmatic in their orientation. just tell me what the rule is. right now we're talking about privacy versus transparency. what do you want me to do, do you want me to turn it on all the time or keep it off all the time? i don't think it makes any sense to film victims of crimes. certainly if there's an enforcement activity on the part of the officer, you have to have the camera running because those things can go side ways in two seconds. if i'm interviewing you and you're a crime victim, i don't think that camera has any

business running. there will be advancements in the technology that automate some of this. in other words, if i pull my gun, my holster would be a smart holster communicating with the camera. if i pull my taser, it turns on the camera. if it has voice recognition capability, if certain key words are used, the camera comes on. you can avoid some of this do i turn the camera on or off. there's a practicality reality for police officers when they're involved in enforcement activity that the last thing on their mind is pushing that button to turn it on. they're looking at a person thinking if there's any chance that person might harm them, that's what they're going to focus on first. if we can find a way to automate that, that turns them on. other things have nothing to do with the technology with this accountability stuff, turning them on or off. whether we like it or not, all of us have to accept the fact that police officers need a certain level of discretion to do their job. that discretion and what happens or doesn't happen in terms of transparency issues, retention

issues and all that are set in the law. the cops follow what the law is. if you don't like the law, then the people you need to be taking to are the state legislators to try to get them to change that that drives the behavior of the police in large part. there are other issues. it's not that simplistic. there are other things i think the police have been -- the blame for some of these issues have been laid at the front door of the police. change the law if that's the problem. >> no doubt. i think one thing there is consensus about across the board is there needs to be given all the questions a very thoughtful process before jumping into, as you call it, full penetration. in the wake of the incidents you mentioned and many others, people have sort of in grasping for solutions that would prevent things, that many people feel were terrible abuses of people's rights, we're reaching for a solution, a company that makes tasers offered one up in terms

of body cameras. but i think the uniform or at least there's consensus now that we need a broad consultation process. the police executive research forum says once an agency goes down the road of employing cameras, it's difficult to scale them back. we need public consultation processes about issues of discretion, around issues of consent, around issues of access to footage, obviously around issues of purposes of footage, evidentiary concerns. as you say, those are in the domain of lawmakers, freedom of information. there's so much in there, what exceptions there might be around domestic violence instances, instances in people's private homes, in vice operations, but

also some undercover operations around enforcement of lewd conduct statutes is another issue of concern for lgbt. domestic violence is an issue of concern in terms of filming responses. i understand police officers feel those are the more dangerous things to respond to. how do we balance it with the privacy of people who are, one experiencing some of the most difficult and challenging moments of their lives and secondly may have other privacy concerns. there needs to be so much public conversation around this before we jump head long into something that could have so many unintended consequences for all stakeholders on all sides of this issue including police officers. >> can i add an empirical point to the conversation. one is related to jim's point about police officers wanting to know when am i supposed to turn this on. again, the study from mesa arizona, one of the interesting things they found is if there's basically a requirement that cameras are turned on, 80% of

the cameras are turned on or during 80% of those interactions that policy is complied with. if it's discretionary they're turned on 50% of the time which suggests when police officers are given guidance, in these nine circumstances, they go on then by an large they go on. the other thing is we've been looking at comparing the policies out there. most jurisdictions that are using body cameras are in the pilot project phase. most of them have published policies. we have looked at the guidance that perth, police executive research foundation put out and different jurisdictions around the country in terms of when they're supposed to go on. i was expecting that most of the jurisdictions would follow the perth guidance which lists a variety of kinds of interactions. there's a decent amount of variation, not widely, but different cities, different departments have decided on different times when the cameras

will be turned on which may be totally appropriate. there may be different needs in a given drgs. this may be the laboratories of democracy that the states and cities provide to see, ok, how does it play out in terms of effectiveness and community relationships in this scenario this scenario, this scenario. right now there is some variation across the country in terms of when they're triggered. >> one more thing, i also think what's critical as much as a consultation process on the front end is a consultation process and evaluation on the back end that takes into account all these things, including the primary purpose of changing behavior, but also how the unintended consequences are playing out for different communities. i feel like that's one that needs to engage all stakeholders. >> i think this discussion also underscores why it's so important for the police and community to co-produce public safety and co-produce good policy around the use of body worn cameras. there's a reason we have 17,000

police departments. it makes sense when you understand community's desires to customize and taylor the kind of things they want in their communities. in some communities you may have lots of community involvement with the police department around policy formulation and that results in a different triggering of when you turn them on and off. i think that's appropriate as long as there are guidelines set up and auditing mechanisms to make sure you're really doing that. that's when the transparency comes in. the community co-producing those policies with the police department is where you address these kinds of things that i may be a well meaning police chief or police officer trying to do the right thing in that domestic violence situation but have no sensitivity or understanding about how it's perceived by

somebody else and why it's a problem. this is just not a simple issue. it's full of gray areas. >> one area that i think is pretty clear-cut from a lot of police departments is cost. we continue to hear the police departments are having trouble paying for devices, paying for storage and the infrastructure that goes along with that. washington is starting to put money towards body cameras quite a significant amount of money and there have been hearings about this. i'm wondering whether or not that money that police departments need in order to implement these cameras should mean that those departments are required to follow some sort of federal guidelines. short of any law, should there be federal guidelines that require police departments they're required to meet in order to access these funds starting to come down the pike. >> there's a model already throughout that dictates that. the department of justice provides funding for police

departments to purchase vests for their officers. in order to offset the money you must have a policy that mandates the officers wear those vests. you can do the same kind of thing. if you're going to accept our money to buy those cameras, you have to have a policy that has these elements in it. >> the justice department is preparing to distribute the $10 million that president obama announced was going to be provided in grants to localities. they have made some noises about conditioning receipt of those grants on having a good policy in place. the details haven't been worked out yet. it's not clear what that's going to look look and how prescriptive they're going to be. but that was a good thing. i think it's policies -- there's policies in terms of wearing them, in terms of the privacy piece, in terms of the sort of accessibility to the public which is i think a very complicated issue. and then there's also i think a piece about gathering the data.

so assuming that a lot of this is happening in a pilot program context and that money is being given for that, what kinds of information are these jurisdictions gathering? are they gathering in a way that's comparable across departments, across cities to really allow the justice department, the d jfrmgtsa groups it's working with two four, ten years down the line to do a retrospective look at how they're being used, do they work, what are the consequences. i think without that it's going to be really hard to make any assessment of kind of are these distributing and how, to kind of a variety of values. >> which is why all this legislation should have a component to it saying we're going to evaluate this. there needs to be funding set aside for the science of this stuff. so you know, how do we know this works two years out, five years out? >> i would agree with all of what's been said and also that there needs to be resources for community members to participate meaningfully in those evaluations in terms of the

research and also being able to assess the effectiveness and interactions. i do feel compelled to say on behalf of the young people i have the privilege of working with that one of their first responses to this was how many million ofs dlarps and why are there still only 200 shelter beds in new york city for lgbt young people, can we not put some of the money that would keep us out of the crosshairs of policing because there are no other options available to us. i feel like that is a question around the millions of dollars going into this, particularly from folks who are feeling like it might change their dare day today experience. >> i think some police chiefs are calculating the body cameras, if they perform as advertised, may save them a lot of money that they would otherwise spend on settlements of police abuse lawsuits if they can civilize their police

officers, that they'll spend much less money overall just because of the cost of the cameras, they'll be paying less money on lawsuits and that money could be used for many other things. >> i want to talk a little bit about, jay, you mentioned this earlier, about accessibility to the videos, who should be able to see them,. lawmakers in at least 15 states have introduced legislation that would limit how much of that video is available to the public. so who should access the videos? who should be able to prevent access to the videos? should all of these videos be made available to the public? should they be streamed on youtube even if they're blurred out an redacted. are there certain states that have sort of on one side of the spectrum and others that are more lenient in that regard? it's an important questions. it's one thing to record to video it's another thing to make it accessible to the general public or us in the media.

>> that's a key question. we've been asked a lot about it by localities that are struggling with this issue. what we've been recommending is that, you know, most of the video that's takesenn really go into a black box and be held for a certain relatively limited period of time, 60, 90 days and then be deleted unless there's a use of force by an officer, a felony arrest or a complaint of an officer. if this case the video is flagged and kept for a longer period of time and available to the public through state foia requests. and that video should not retunely be searched, shouldn't be face recognition, no analytics. even, you know, police management really shouldn't be looking at video unless an officer calls attention to it because we don't want officers to feel like they're being nitpicked by management or that management is out to give them

or they have to give way too many tickets which is what the mesa study found because they'll be dinged by their superiors if they exercise any kind of discretion. and so, you know, we think that what we're seeing out there are some extremes and some of them are set by state open records laws. some states like minnesota washington state, new mexico have very broad open records laws that basically define all of the video that's captured by all cameras as an open records request. and we think that that is the wrong balance for privacy. all kind of stuff that's not of public importance but is very private to people will be publicly releasable. you'll see tabloid tv seeking the video to run thing for pure interests. and on the other side of the -- >> the tmz effect.

>> the other extreme would t be like a law that was just passed in south carolina and the lapd's policy which allows the public to access none of the footage. it will end up being a police propaganda tool. if there's a shooting of an unarmed person, that's publicly important information and that video should be released. the bystanders will slap it up on youtube. the only video not released is the police video. so you know, that's a delicate balance and neither extreme is the right one. it should not be public releasable unless there's a felony arrest, a use of force or there's been a complaint against a police officer and we think that's the right balance. >> i do think it's critical to have the consent of the person who is filmed be an integral if not determine innocent on that calculous. there is plenty of footage, for instance, of people in various states of undress.

there is so much there. but also that i think there's just fundamental privacy concerns. and there's issues of public interest. i think there's a balance where you could do it only with the person's consent or at least where there's a court involved in determine wlging whether the public interest outweighs the privacy concerns and that the court would factor in the consent of the person in the video. and that raises ten more complicated questions about if all five of us, the police rush in now and something happens, i might want it on the internet and you may not. how do we navigate that. and that raises the issue of blurring people's faces and redaction. and that raises the cost. i would throw in that's an ideal consent. but then it raises many more questions. but i fully agree that we can't have sort of footage flying up on the internet of every interaction.

i agree with you that is currently a problem with bystander footage that we need to figure out way to collectively address. >> this raises one other interesting issue which speak to the public release. i think sort of the perception is if there's a video out there, that's going to show us what happened. this is played into. often these videos do exonerate the police officers and sometimes they exonerate the accused. it's a story they tell. one of the things we're seeing from research is not surprisingly different people see videos differently. you take your own biases into watching the video. there's some interesting research showing interviewing motorists of color who are stopped and white motorists who are stopped. the -- something like 10% of the white motorists who are stopped who saw a police officer walking towards them, saw the police officer's hand on his or her service weapon.

about 60% of the motorists of color did. part of the theory is the motorist of color were key to this. this was a salient fact to them, if the officer had his hand on his gun. and with the videos, there's been a variety of studies on this that people will see different things in them, not just maybe see or not see something the police officer should but really come to different conclusions based on what they bring. so i think we'll see that playing out to the extent that videos are released publicly or to the extent they're used as part of a case or a complaint, even if it's a literally only the complainant and people in the police department seeing them, there may be still different narratives that come out of a single video. >> i think it's an excellent point. everybody, all of us need to get more sophisticated in how we interpret videos. videos are not an objective of what took place.

and of course as you said a lot of the body camera videos are just catching somebody's chest. in fact somebody was saying in england they were having a problem that a lot of tall police officers were interviewing women and it was looking straight at their cleavage. but at the same time, this point can be exaggerated. i was talking to a judge and she says, i can't tell you, i have all of these cases, complaints against police officers and what have you. it's one person's word against another person's word. it's completely muddy. we don't know where to start. there are aare the of times where video does more or less tell you what happens. there will be cases where the video doesn't tell you what happens. there will be cases where the video is probably deceiving. there will be cases where the video is clear as day. overall i think it would be petter off than he-said-she-said officer in crisp uniform versus accused criminal. >> this underscores i think the need to put a lot more resources toward the science and the research around this.

because we're all entitled and have our opinions. there's 60 people in here. we all have 60 opinions on when they should come on, when they shouldn't, redemption, et cetera. what we're not entitled to is our own set of facts. we don't know about this field yet. my guess is we're going to have lots of differing opinions about this for quite a while. but the extent to which we -- science can develop good findings about what works and what doesn't work to achieve mutually agreeable goals is where we will ultimately develop a national coherence around this. and we're not going to do that until then because we're people with different opinions and we all have a different opinion about all of this. >> in a recent senate hearing the issue of hack about of this came up. two weeks ago there was a huge hack of washington's data. hacking is now a standard part of, i think, a lot of the way --

a lot of our lives, right? everything from our health care system to the government have been hacked. so what's to prevent a small town police department from becoming hacked and having these videos, you know, whether they have policies in place or not, to protect privacy, what's to prevent that from happening? i mean, are these police departments really equipped to protect the integrity of that video and that data? >> i think in some ways it's slightly different question which is any police department equipped. because by and large i think most of the major platforms, the major companies producing body cameras, they manage the information by and large. so i think for most of these the police department sort of keeps ownership but the actual data basically is being sent up to the cloud. so it's a question of cloud safety. is there a way to hack into it or. as most of the hacks happen. or is there a way to get somebody's credentials, to fool

somebody into getting access to the information. and then there's potentially a mother load of information which goes to the question of how long is this kept. the less amount of time the video is kept there's at least video, fewer videos to be accessed. but i do think that's an issue. >> this becomes more problematic when many of the really small police departments who have their hearts in the right place, they're trying to get involved in video technology and cannot afford these big vendors you're talking about. this is expensive technology. so they go online and find a $70 clipable camera, you take the sz card out and upload it to your pc. they know they need to do this but those things are hugely accessible to the hackers. >> there are been police departments around the country that have been hacked where companies previously encrypt their hard drives. and several police departments have had to pay thousands of dollars to russian hackers to get their data back.

so it's a very real problem. >> we've talked a little bit about the public and the media being able to access these videos. but what about the officers themselves who are the ones that are wearing the camera? should officers be allowed to view their own video and if so when and if not, why? >> i mean i think that officers should be able to view their own video most of the time. they want -- they might want to review how they handled something that they might want to use it for training purposes to refresh their memory about things. the only time they really could not is if there's a critical incident such as a shooting where there's automatically going to be an investigation over what happened. when there's an investigation you don't show witnesses the evidence you have before you take their statements. i mean no detective would do that. and you now, we have one set of evidence which is what the police officer remembers about what took place and we have another set of evidence which is

the video. and neither one is object ty and the memories in the video are always going to be different. but you take one statement and set of evidence and capture that before you show the video to the officer. so that the evidence doesn't become cross contaminated. if you show the officer the video before you take his or her initial statement, then you are contaminating and literally changing -- studies have shown the officer's memory of what took place. and also if the officer has done something wrong, you're giving them an opportunity to lie most effectively if the camera swings away for a moment, the officer can say that's when he reached in his waistband or what have you. now after giving an initial statement and capturing the officer's initial memory of things, if the officer views the video and want to explain something that was in the video that wasn't in his or her statement, of course they can do that. but this is a very divisive issue where libertarians and many police around the country have felt strongly another way.

there's a common since thing of why not let the police officer give their best version of what happened by looking at the voop. -- at the video. but because of the contamination of evidence and lying issues it's a bad idea. >> and i would argue that should be extended to any criminal prosecution for exactly the same reasons. i'm quite sure that's going to be controversial. it's part of a story and showing it in advance of a criminal prosecution. i have seen, you know, an been part of cases on the defense team where video has very much exonerated defendants. but i still feel like the ability to taylor your testimony in a criminal prosecution to something you've seen before before you give your initial statement is upsetting the balance of due process and fairness in those situations and for all of the reasons that jay just gave

>> this is confusing in the policing community. lawyers that the defend police officers would be able to cite scientific evidence to what -- to the contrary of what we've just heard and have a position about their clients' rights and what makes sense. even within the policing community, half you would say they should look at it, half of you would say they shouldn't. one of the things -- i'll go back again. we just don't understand enough about our memory and how things, how something appears to be the case that turns out later on not to be the case. and because we have such an orientation towards blaming in this society, we fail to say we're not blaming anybody, wae want to understand how this works. and i don't know how we get around that. i think there are ways to get

around that in many instances. we had a bad outcome and how do we get to a better outcome. we're not going to blame anyone for that. we don't have a vehicle right now to look at critical incidents without blaming and therefore we deny ourselves huge opportunities to learn from a bad incident that had bad outcomes because we need to make sure that somebody is blamed for whatever happened pum i'm not saying we shouldn't hold people accountable. i'm saying it's a difficult model. and if you had some attorneys in here to represent police officers, you'd hear something different from them about what the science says and what they believe is appropriate. >> the police officers are afraid that, you know, their memory naturally will probably not exactly match the video because that's now the way the human brain works and they'll be a made to look like liars. it's a legitimate concern. but everybody else in the criminal justice system has to deal with that as well, the defendant and the witnesses. police shouldn't get special treatment in terms of being able to see the video before they give their initial statement. and i do think that you know body cameras have a real potential to be an excellent

training tool. and you know, doctors have a thing where they all meet once a week and talking about their medical errors in sort of an environment of not blaming but how can i prevent this from happening again, what did i do wrong here. it would be nice to see that evolve as a standard feature in police departments. i had thee three encounter this week and they turned south. let's look at it together and see how i could have deescalated it. i think it's a real potential that this could be a tool that will get at some of the deeper issues. body cameras are not the solution to the problems of policing in america. they're to some extent a band aid. >> absolutely. >> the real solutions are changing the culture of some departments. somebody said recently they think of themselves as guardians and not as warriors. and that they don't feel like occupying armies in some neighborhoods. and these are deep complex

things and body cameras may have a role. but i think that better training and so forth is really the direction that things need to go. >> i would agree with the statement that the footage has huge potential for training officers. so we have footage, we want to use it for training except the , law or policy or community expectation says you can't keep it for privacy issues. you can't keep it. this is where you have retention and erasing of that same video runs head on into the reality. great video for training except we can't keep it. this is where we've got to find a way to meet both of those interests, the video that's very hard to watch of the texas officer that completely mishandles the incident involving the kids at the pool party is a great training video for thoughtful departments that want to hold this up and say to their officers, see this, don't do this wu but let's talk about how that cop got himself into that place.

but that's not body camera video. that's somebody holding up a video. >> i want to emphasize that. in new york city we've been creating of creating a culture of cop watch. there's five of us out there filming and they may be producing the same result. in changing everyone's behavior. i've seen a situation where a officer had pepper spray out, i pulled my iphone out, the pepper spray went back in and everything dissolved. and that was it. i feel like we could achieve many the same results by supporting and coming up with collective agreements of how we do it as community members by and for each other, it could capture the bigger picture. there might be other ways of arriving -- >> we need to be careful as we go down this road. i'm trying not to put my cop hat on for a second. when we want to hold those people accountable, i'm all for that. your example makes sense to me.

you have to remember that that these are the same people that you expect to run head long into a dangerous situation that you have called 911 about. so that when we begin to -- and there's a balance here between holding them accountable and demonizing. the people who risk their lives for perfect strangers. and i personally believe this is a very slippery slope for us as society because you -- everybody in the room and everybody watching this, if you are being attacked by somebody, you are going to call 911 and you want them to get there as fast as they can and save you. that means they're going to use that means they are going to use discretion, use all these tools available -- if we are not careful about the messages we send to those people who are willing to donate their lives for your safety -- there's 21,000 names of cops who have died in this country protecting their communities. we have to be careful about the message we send to those people who are willing to do that.

there is a balance, a very clear balance. we have to be careful because you were not the people who responded by call 911. i'm just saying we have to be careful. >> absolutely. >> believe it or not, cops are people too. >> i don't think the problem is that cops are getting too little respect in terms of their use of force. in many cases, the law allows officers to use force when it's completely not necessary but completely legal. there is a problem with excessive use of force and police abuse. it has remained hidden. it's been apparent to people of color and low income people but invisible to white middle-class elites who run things in most cities. video is playing a role in opening a lot of people's eyes as to what often does happen.

ultimately hopefully we will move forward to the path of understanding. police video cameras will play disciplinary role in curving back those officers who might get out of control. at the same time, it has the potential to increase understanding among the public about what police officers do face. some of these videos will show heroic actions and already have. greater understanding on all sides -- >> this is why legislation is so important. we don't like the court decision that sets the sidelines for police use of force, we need to change that and the rules need to change in the guidance it's to change, much like the supreme court decision that said you cannot shoot somebody who is running away from you. that was useful to everybody. it's him and he does, they will go to jail for the rest of their lives.

those are the kind of things that are pragmatic realities. just tell me what the rules are. i will follow those to the best of my ability. when i'm operating within them, i may not be the problem. narrow those sidelines or something so i understand the rules better. >> to bring it back to a point that jane made, i was interviewing the executive director for the center for media -- she says "the footage it's itself doesn't necessarily translate to accountability." if anybody is going to stand behind by the cameras advocating for them, they need to also stand for competence of police reform. what does that look like? going beyond the technology. that is something we are hearing. can you go to camden, new jersey?

we have 120 surveillance cameras, but he cameras -- body cameras and two cups on every street corner talking to residents, doing right along's with folks -- right along -- ride alongs with folks. is there more that can be done in terms of actual police reform? if so, what is that? >> better training, training that is oriented toward teaching police officers had to deescalate effectively. community policing and having police officers be part of and in touch with the community they are policing, not being occupying armies. and civilian oversight oversight boards that have teeth and power and that kind of thing. changing the culture of some police departments as i talked

about earlier. we can maybe look forward to a day when police body cameras no longer seem necessary. who knows? >> i would have to agree it comes with accountability. that's where i was going with the example of having effective accountability after-the-fact no matter who is capturing video, what is on the video. maybe accountability and walter scott's case. in the footage leading to accountability and change in behavior. that goes to many kinds of reforms -- in setting the guideposts you were just talking about. there is a list of very specific reforms in the presence task force -- president's task force report, everything around narrowing the use of force to

what is absolutely necessary and permitted by law about having specific guidance around use of force against pregnant women or children or elderly people and use of tasers. very specific guidance around how you can engage that whether you can ask for consent to a search. things that will change the way interactions happen between the individuals and police officers to balance the power relations a little bit and making sure people's rights are respected. it's also about coming up with specific guideposts around how police interact with particular communities that are more likely to experience police abuse.

whether that's a sexual harassment policy -- very few have sexual harassment and abuse policies around police attractions with members of the public. the international association of chiefs of police put out guidance saying you need to have this. making sure there is guidance around how to respectfully and safely interact with members of the lg bt community in such a way that we are not perpetrating more violence intentionally or inadvertently. there's a lot that can be done in terms of comprehensive police reform. most important is not the policies written on paper but the enforcement accountability for the. -- and accountability for them. if we move forward with really reform -- it has to involve and

be created in partnership with communities we are directly impacting. in new york city, we are going through a process of court orders where the court has said those directly impacted have to be part of reforming what stop and frisk looks like in new york city. the solutions lie with the people who experience it on a daily basis. that's where we will move from feeling like archimedes are being occupied -- our communities are being occupied to a different situation. >> also, use authorization -- police officers are equipped like soldiers. as opposed to civilian peace officers, which has been the honorable tradition of police officers for longtime.

>> we also should not forget -- this is not anything about the efficacy and contributions of body cameras, but remember that the body cameras themselves are a business. companies sell body cameras. the same company that makes tasers. there have been questions in every department about the relationships between the police department, the chief of police and decisions being made about body cameras. that is an overlay. which doesn't necessarily speak to whether they will work and what they will contribute, but that there is another issue in terms of the separate accountability piece to pay attention to. >> i want to take the opportunity to ask the audience

if they have any questions. if you are too shy, you can always tweaket. that is fine. jim may need to leave in a few minutes. if he gets up and goes, it's not a commentary on any of the questions. [laughter] >> i will check to see if there are any questions that have come in recently on twitter. >> my name is jeremy. i have been involved in the body camera debate. one thing i don't see a lot of -- asking the question whether police body cameras are the best way to do accountability. there's a lot of gray area a lot of issues with privacy for the officers, for the public, surveillance cost, liability issues. in california where the highway

patrol responded to an accident and this young woman gets decapitated in the photos of that got out. chp was sued and had to pay millions of dollars. you have other potential liability issues. the vendors will push facial recognition. it will become a ubiquitous surveillance tool more than an accountability tool. the studies on whether they will have these positive outcomes -- i don't feel like there is a real grappling with whether it's the best way to do accountability as opposed to doing things that jen mentioned earlier with teaching officers how to handle situations better. it's the officers instigating

the situation and they are legally allowed to enforce --can you respond to that? >> the police department is a system. they need technology, whether it's cameras or anything else. there will never be the one thing that solves it. that's how we think about things in our society. the one thing that solves this problem and it's too complicated. this issue underlies all of this about accountability having to do with who do we hire, what are the organizational values, who becomes the police chief? there's all kinds of things. the best accountability model is is holding ourselves accountable. i realize that is an efficient in many ways. we would not have to have criminal laws and all these other things we have. there's a lot that goes into an accountability system. what do supervisors do, what are

the analytics he can pull out of your own data system? what kind of arrests are there? insight into what that officer is doing, the other officers, do they foreel free to tell you there is something wrong? the officer i work with did something wrong. the officer came to us and said i did something wrong and you need to hold me accountable for this. i screwed up. there's a huge difference between mistake at the head and mistake at the heart. it's about culture and leadership in the intangibles that make the business very difficult sometimes. and create space for misuse and abuse. what we are talking about here is much bigger than cameras and that's when your question

alludes to. it's much more than just a camera issue. >> we just got a question from twitter. does the panel know if there are organize trainings or the public to record police and directions and encounters? >> yes, there is an organization , a coalition called people justice and a website called cop watch nyc. it pulls a lot of resources -- they have been conducting trainings for over two decades. the resources are up on cop watch nyc. the app is very helpful and people have used it. we all have our phones. >> we have a number of affiliates that have these apps which you have used to record

and automatically upload this video to the aclu if you're worried that your camera will be seized or what have you. the most important thing that has happened in the accountability overall may be the right to record. we have had huge struggle getting police officers to recognize that there is a first amendment constitutional right to take photographs of you are in public in a place where you have the right to be. the clu has held litigation in numerous states and the courts have been unanimous that you have a right to record. we are seeing fewer and fewer police officers tried to an affair with that right. they harass people or worse for taking out a camera and recording. we've talked about in many cases, the bystander video has been even more effective than the police videos in providing accountability. jeremy's question, the answer is

no. cameras are not -- we are definitely not the best way to improve policing in america. are we better with cameras than without them? that is a harder question. that's the question we are struggling with. the cameras are happening, it's a way that police officers -- we will impose them unless they are done with good policies to make sure that they do serve as a tool for cap ability. -- accountability. >> any additional questions? sir in the back and then this gentleman in the front. >> i work for the naacp. i have a question regarding the feasibility -- there is a fear that if an officer shoots that way, cameras won't record gun related violence incidents --

>> i don't see any downside to gun mounted cameras. when an officer's gun is out that's a situation that needs to be recorded. in many ways, the gun mounted cameras would have fewer downsides that body worn cameras have because they will not be recording most situations. >> this gentleman in the front with the tie. >> center for democracy and technology -- i'm curious for your feedback on use of the cameras and situations that involve protest demonstrations and other first amendment related activities. if that creates a higher level of sensitivity -- there's greater potential for abuse.

we've seen in recent years where having video of attacks on demonstrators helps stop protests from being shut down. >> ndc, there is a pilot program -- there is a policy for the pilot program. body camera recordings of first amendment activities, first amendment events. the language that is written in his video from those recordings will be kept for longer, or three years, much longer than the standard retention period. coming out of the mass arrests from the inauguration from 2002 and this concern that there was

major suppression of first amendment rights -- there is extra sensitivity. you have videos depicting people exercising their first amendment rights. those are kept for much longer. it can be misused or even just available -- if there is hacking , these things are out there. we were doing this comparison of different policies across the country, to what extent do they speak to these first amendment concerns? it varies -- is there a general body cameras shouldn't be used to suppress exercise of first amendment rights? it's a really important question and i don't think we know yet how it plays out. there could be competing interests or the same interest vindicated in competing ways. keep the footage for as little time as possible or to keep it

much longer to allow for some record of accountability. >> people experience it whether people are new to protests or have been around for a long time. we saw that the importance of civilian video and organized civilian video collection because it enabled us to account for limited perspective from the police captured video. it keeps coming back to a larger policy question about how things are policed and the importance of nonpolice video. >> any other additional questions? one more in the front. >> i was just wondering, some of the research i did regarding the

body worn camera policy -- the ability to assist in prosecutions and things like that. do you have any ideas -- regarding prosecutions and investigation. >> i overheard some conversation about this before coming in about the use of body worn cameras for victimless prosecution. it takes away autonomy from survivors of violence to make decisions about what kind of accountability they want. they're often informed on their own knowledge of what dangers that will pose to them whether it's an economic loss for the potential retaliatory violence.

the survivor of violence will bear the brunt -- you had them videotaping. i will come after you for that. figuring out consent economy and respect -- autonomy and respect for survivor determination. it's one area being advanced on the backs of survivors of violence. there can be a lot of blowback and a significant amount of concern. as someone who has long worked with survivors of violence, people want as much control over prosecution as people do around prosecution of domestic violence for many of the same reasons. privacy, safety and self-determination.

no one is more aware of the consequences of different cuts of accountability than the survivors themselves because they need to be in charge. >> i think we can wrap it up. thank you so much to the panel. [applause] >> on this weekend's newsmakers housing secretary julian castro talks about the obama administration's housing policy and the mortgage industry. he also discusses the supreme court's recent decision on housing which allows for certain policies with discriminatory outcomes to be challenged under the fair housing act, even if there was no intent to discriminate. you can watch the interview tomorrow at 10:00 a.m. and 6:00 p.m. eastern here on c-span. that decision on housing was one of several the supreme court handed down this week. we also saw a decision on mandatory sentencing for gun crimes. the justices ruled 8-1 that a

clause in the armed career criminal act was unconstitutionally -- defining a violent felony as conduct that presents a serious potential risk of physical injury to another. under the law, convicted felons caught with guns is a maximum sentence of 10 years. those with three prior convictions are subject to a 15 year mandatory minimum sentence. this oral argument is one hour. >> the residual loss of the violent felony definition of -- is unconstitutionally bank because it's structure does not been out with gertie with predicate offenses fall under coverage and not.

its vagueness is proven by this court's inability after repeated efforts to discern a meaningful and replicable framework that will guide lower courts. >> you are protesting only the residual clause, not the rest of the statute. you are not attacking any of that, just the residual clause. >> that is correct, your honor. we believe the other portions of the statute shed some light on to why the residual closet unconstitutionally vague -- clause is unconstitutionally vague. qualification for violent felony status tied to the offense in question. requires that the use of force through the intended use of force be an element of the offense. the burglary arson extortion

are determined by reference to the elements of the offense come a categorical analysis. >> we have asked you to argue this vagueness issue. when you were here before, you did not think that the statute was bank as applied to her client. your argument was it is clear that your client did not fall within the residual clause, largely because he was convicted -- the offense is a possession offense. you argued that none of the specific offenses listed is a possession offense. >> the fact that we believe is clearly excluded seems to be at odds with the opinion of the solicitor general of the united states and other courts.

the fact that something that seems obviously not to fall within the plane definition what is held to fall within the definition by numerous courts reveals the vagueness of the residual clause. >> every case that comes here involves a dispute among lower courts about what something means, with the constitutional rule is or what the statutory interpretation should be. the mere fact that there is disagreement about this, that shows is unconstitutionally vague? >> i can think of no other instance in which the court has endeavored so many times in so few years to answer precisely the same question. not merely interpreting the same 14 words, but asking each time whether a single offense satisfies those 14 words. >> in james in 2007, we held that the residual clause -- it is not unconstitutionally vague.

insights into thousand 11, we were affirmed that -- in 2011 we reaffirm that. can you give me other examples in which the court has overruled a constitutional holding that has been twice reaffirmed within eight years? does that happen frequently? >> i do not have a case at the ready for that question. what doesn't happen frequently is this court has to grapple with such frequency and is still unable to create an interpretive from work. precedents that remains workable and useful that applies to the lower courts differs greater deference. that precedent is simply proven not to be workable. >> do you think the issue is whether the statute is unconstitutionally bank -- vague

or whether this court's interpretations of the statute create the basis for vagueness argument? kenny statute be bank because this court messes it up? >> that is not the case in this case. i don't know whether it's possible, but in this case, the vagueness and here's to the text in operation itself. this court's repeated efforts to discern a useful interpretive framework has not caused the vagueness, but proved the vagueness. >> suppose you had a state court meeting of judges for sentencing. they agreed with in their discretion to impose a maximum they would impose a greater sentence if the defendant had a rap sheet of previous offenses which created a serious potential risk of physical injury to another. this is within their mandatory discretion. when you say that is prejudging?

>> i think judges are tasked with deciding individual case before them. >> not my hypothetical. we will increase your sentence if you committed an offense that categorically poses a serious potential risk of injury to another. you think that is bad judging? >> i would never accuse a judge -- >> is a hypothetical. >> that goes into the task of legislating. >> you don't think judges should give reasons for what they do? >> absolutely. >> you absolutely do. you say this is a big reason? -- vague reason? >> the idea that the judges would get together and make policy decisions unfettered to an individual -- the educate each other.

they announced the policy. we want all members of the bar to know that if there is a rap sheet of prior convictions, we will of the sentence. you think that is bad judging? >> that is going into legislating. >> can we do that as a matter of law? not just as a matter of recommending to their fellow judges? can they reversed one of their fellow judges of a fellow judge does not adhere to that? i've never heard of such a thing. it sounds like legislation to me. >> i would certainly be with what you think it's bad judging for a judge to say what his policies going to be for future cases? >> yesterday judge -- yes. >> a lot of states have guidelines and there are committees -- i don't know if

that is going to help us. i have counted up the number of splits and so forth. adding in the cases, i think generously on the basis of what you presented to us, there are 14 splits. that's over 20 years. 15 years, anyway. there are literally hundreds of different crimes, thousands perhaps by the time you get -- i don't know how to decide whether 14 is a lot or a little. i am at sea on this. maybe 14 is so few. every statute has uncertainty at the edges. maybe it's a lot. help me. >> first of all, more than the

number of splits is the fact that each of these efforts seem to answer the question before the court that has a difficult time answering any of the 14 questions. >> are there any examples you can think of where that was the basis for holding a statute unconstitutional? >> your honor, in the vagueness cases we have cited, one of the things often discussed by the court is it is not amenable to a use of interpretive framework. it is not been consistently applied by lower courts. >> i have never heard of that as a criterion. common law had a method. there were common-law crimes. we have statutes, the government cites many which use such words as "risk of harm" or "reckless." it doesn't use words like we have here, serious risk or risk of physical harm.

there are other statutes that involve the words like ours. are we holding all those unconstitutional? >> absolutely not. >> i understand you think that appeared all i need his help. >> in addition to the number of splits and whether 14 is a lot or a little, it's an enormous amount of time for this court to have to weigh into unresolved -- sullivan unresolved -- result in unsettled question. we should take instruction from the lower courts. we decided half a dozen circuits , seasoned jurists who described this as everything from impossible to meaningfully and consistently applied. we are not just talking about counting the number of disagreements we are also talking about completely unworkable framework. >> i suppose this is connected

to the question -- do you think there is some court that everybody does agree upon? there are some offenses which people just say -- of course that is within the residual clause. it's not the kind of thing that creates controversy. there is a core of agreement as to what it means and if all the trouble is occurring on the margins. >> the margins here are some much bigger than the core, even if we are able to agree on a small number of things that might clearly fall within the center, the fact is the vast majority but what what you think is in the core? >> kidnapping might be in the core. what is more instructive is the fact that so many things the government has even suggested are easy cases. the examples they give on pages eight and nine are not that

easy. child abuse. it's true that one circuit has held that child abuse counts but the case that examined a florida statute found it did not accou count -- >> they have to be facially vague -- you are contesting that standard because you are admitting that at least one thing you can think of kidnapping, that application would be appropriate. is that right? >> it's important to look at where the government standard -- it comes from the case that dealt with licensing and where everyone agrees that the common question was clearly in the court. this is different in all three respects. not only with an onerous sentencing penalty, but he mandatory one. -- a mandatory one. >> the question is whether you

agree with the government that so long as there is something that is clearly within the court is not vague >> i do not agree with that. that is unworkable. >> i suppose you could have a statute that criminalized annoying conduct, right? according to the government, that would not be unconstitutional because there is some stuff that is clearly annoying, right? that is a perfectly good statute. [laughter] >> what do you do it all of the statutes -- there is serious risk of physical injury to another. the same words they use here. all those statutes would be vulnerable under your reasoning. >> the serious risk is not on

trial here. none of those with the possible exception we believe that the two described on the first page come even close in operation or function to what the residual clause says. in everyone of those cases come into the part of the definition subject to an additional limiting definition or one of several elements that help narrow the conduct. >> or is it also that in most of the statutes we are citing, it depends on the facts of the particular case. >> that is a very important distinction. >> juries don't have to be clear. >> they are routinely tasked with the question of whether an individual conduct, what the defendant did constitute a serious risk. that, combined with the fact that it's usually part of a much narrower statute presents -- prevents this from being vague. not one of those statutes has

given rise to the expressions of frustration from lower courts. >> we got that. there is something odd about this statute that is causing the problem and i cannot put my finger on it. what you have done is simply point out the courts have had difficulty with it. that is not enough, i don't think. why? the words seem clear enough. what is it about this that is leading to this difficulty? it is not a problem to identify many cases where there is a serious risk of physical harm. there is something that has given rise to this and i have not been able to articulate it to myself. >> i have thought about it a lot. there are several things. one is the fact that it asks judges to answer an impossible question. they have to imagine whether an offense in the abstract presents

a substantial risk, how to even select the ordinary case is something the statute gives no guidance about. what degree of risk is required? where you get the information? it's completely imaginary and subjective. >> the question of whether it's a serious potential risk of injury to another were a factual questions amid the jury to be determined on the basis of what your client did, without the unconstitutionally vague? >> that would go some direction toward solving the problem because it would require facts and specific analysis by the jury. >> is that a yes or no? >> if it still had -- it would avoid the vagueness problem. >> it would create other problems, wouldn't it? we are trying to base this on 20-year-old convictions and

questions nobody had an incentive to argue. that's the reason we went down this road, didn't it? >> it's an unworkable solution that it might get around the vagueness if the parties were entitled to argue it to adrian relitigate the specific facts. >> i was only asking about the statute that imposed a particular penalty for possession of a sawed off shotgun. someone is convicted under a statute that has this language in the possession of the sawed off shotgun had just occurred. you do not think that would be ann kuster usually vague? >> if the jury were asked to decide whether that present a substantial risk beyond reasonable doubt, i don't think

that would cause the same problems, your honor. the other thing that is inherent in these definitions is when it requires to be -- the question to be an element of the defense, you only need to look at the elements of that predicate offense to determine whether it qualifies. >> congress was trying to do something here. it's a legitimate thing to do. to impose an enhanced penalty for people who are felons who possess firearms and have a record of prior convictions for certain category of offenses. if the residual clause is held to be unconstitutionally vague is there any other way the congress can a college that end? >> there is. one solution would be to tie the risk to the elements. you can keep the same 14 words but add in has an element that

pre-creation of serious potential risk and anything that did not fall within that congress could add an offense. litigants of defendants and judges would only have to look at the criminal code of the state that has the predicate offense and decide whether it has the creation of risk as an element. >> prohibits the possession of a sawed off shotgun has an element of possession -- you have to decide whether that element creates the risk. >> under my solution, the mere possession would not count under minnesota law because it does not require the possession in connection with the behavior that creates the risk. >> if the jury would have found the fact of the risk in the cases you are describing -- >> in my imagined solution. >> what you are saying is all the statutes would count.

but nothing else would. you have to have it listed specifically. >> if congress chose that as the solution, yes, your honor. this demonstrates why this have to be that has to be left to congress. extortion is an enumerated offense anything that does not have -- >> is there any crime like that? use, intended use, threatened use of physical force and you are adding to those three categories, you say risk or serious risk of what? >> creation of serious risk of injury to another. if they want to issue closely to the status quo where congress -- requiring that risk to be an element, the government has collected 200 examples of

statutes that have risk as an element. they would presumably count. if there were some left out, if congress wanted to include extortion, all they would have to do is listed. it's a perfect congressional function. they can assess risk, they can hear testimony, they can decide what should and should not count. we should not be imagining it every time. >> are you saying this is a way that congress could fix the statute or a way we could fix the statute? it's an available saving construction that we should feel free to adopt? >> i don't presume to tell the court what it can and cannot do. if it strives to create an interpretive framework, my solution is a good one. far be it for me to say --

>> can you get to your suggestion from the text of the statute? >> i do not believe so. if it were in the text, we probably would not be in this place. >> it's important to me to evaluate this statement that most of the problems are at the margins, not the core. my assumption was the opposite. i thought the margins were few and the core covered a vast amount of criminal conduct. where do i look to determine who is right on that? we have grappled with that. in a traditional statue come the court is large and the margins are gray. the fact that over and over and over again there is disagreement about things that should seem obvious, shows the court is smaller and smaller compared to the margins. look at the easy cases that the government pointed to in pages eight and nine. on closer examination those

give rise to disagreements, they are not uniformly settled. anything that seems easy at first isn't. i don't mean to just dismiss them as disagreements about outcomes -- disagreements about how to apply the texts that won't be answered by the next case down the road. the question of whether consensual sex offenses based on age should qualify. the question of how recklessness should be assessed. conspiracy to commit crimes of violence. solicitation to commit murder. it's really not that easy it conspiracy has two petitions pending right now. the government's attempts to create -- that's the limelight of reality on the ground. >> as you understand the

government's position or is there common ground between the parties that because this is a mandatory increase, the standard for vagueness is precisely the same as the standard we applied to determine whether or not a crime in its definition is itself vague? is there a different vagueness standard for sentencing than a statement of what a crime is? >> i don't think it deserves the lesser scrutiny because it is a sentencing provision because it is mandatory and onerous. it's as if there were a new crime. for that question -- it suggests that criminal statutes under greatest scrutiny give rise to that statement of vagueness at every application deserve more scrutiny.

>> congressional -- could only be to add to the list of crimes. or could have an element of the crime is a serious risk. that's the only thing congress could do. nothing else? >> i don't mean to suggest that at all. congress could fix it however they see fit. that's why it's a better congressional function. >> one is to list every crime they think should get the enhanced penalty. the other is to say the statute has to have an element that conduct poses a serious risk of injury to others. >> i don't think listing them is that difficult. other congressional enactments list a large number of things. >> is there anything else?

saying the crime has to have the element of risk of danger to another. >> i'm not try to avoid the question. it depends on what they want to compass. they want this to a product broadly -- apply broadly, they can do so. if they wanted to apply more narrowly, they can say so. they did not say much of anything when they wrote this statute. i'm sure there are more ideas. >> quick question, if congress assigned a committee or a person to go through the criminal code of every single jurisdiction and identify those offenses that did not fall within any other provision -- those individuals how many do you think they would come up with? dozens, hundreds thousands? >> it depends on whether

congress wants this to be a narrowly applied enhancement for the worst of the worst or broadly applied. if they gave the commission that guidance, instructed by this court's previous cases that show the hard areas of questions, the commission could decide. i don't think it's necessary to look at every state positive. they specify that the definitions like they did in the 1984 enactment, it was a been a norman's questions and preclude them from having to look at each code -- enormous questions. >> may it please the court, the armed career in criminal act -- and normative principle that can be applied to bear his crimes for the methodology that does not produce unconstitutional vagueness. >> we did not say anything like

that at the gate >>. the court did not volunteer an opinion. it did comment on that and said it was not unconstitutional. the court continued to adhere to the idea that this statute can be applied, as it had been applied four times by the court and in numerous instances by lower courts without substantial difficulty. >> we specifically addressed vagueness. my point was, it provides a particular test. >> it concluded that the similarity of the offenses in the residual clause can be enumerated offenses, had to be more than similarity of risk, it had to have a certain similarity and kind. the court noted the phrase the court developed was not

precisely link to the text of the statute and make clear that for offenses with knowingly or intentionally risk levels ordinarily provide the manageable test that courts can apply. >> it points to the problem, in my mind. there is no doubt that drunk driving does cause a risk of physical injury. could it be that congress really wanted to impose a 15 year mandatory minimum penalty to a person who has to drunk driving offenses prior? it seems outside the ballpark of what they are interested in and that's why i have such a hard time with this in part because of the sentence is 15 year mandatory minimum? there seems like they had something in mind but it's hard to figure out. >> it may have been a little bit

too ambitious for the court to try to develop a similarity in kind test. what are justices agreed with that, five did not. we are not asking the court to revisit that today. once the court did develop it, it then considered whether it provided a universally applicable test and concluded it was better to restrict it to crimes that involved negligence strict liability recklessness so as not to allow it to assume the statute. the court has given guidance to the lower courts, there has been some confusion -- the opinion could clear up the relationship between -- >> is that all it takes? can we just patch of this statute in ways that have nothing to do with its text?

i thought we did not have any common-law power to create crimes. if that is the case, it seems to me it has to be congress that's done that. but congress hasn't done it clearly. it seems to me our job is over. >> i agree with you that the court does not have the power to create common-law crimes. i don't think it has done that. it has engaged in statutory construction about which members of the court may disagree. if the court believes a similar in kind limitation is appropriate, there is a textual vehicle for getting there. the same vehicle your honor used in the other johnson case, the one about whether batteries involve strong force or simply offensive touching. you are honor looked at violent

felony and concluded the word "violent" informed what kind of force would count. that was the essential impulse of the court to distinguish between injuries caused by regulatory type violations like pollution and injuries caused in the way the statute specifies. >> that phrase could be viewed as any confusion. the various hundreds of statute to cite -- statute you cite and not many of them involve that aspect. what is its relationship to the enumerated offenses? >> that is not such a big problem in the court applies that the way it did in the way the lower courts do. it is not a precise statistical empirical analysis.

congress could not have envisioned that this court and the lower courts have available to them statistics that do not exist in order to gauge risk levels. it intended a judgment exercise based on experience, just like the court did insights -- eight members of the court agreed that it was sufficiently risky to trigger the residual clause. there was disagreement because of the indiana statute which had enhanced offense that involved vehicular flight. >> what experience do i have regarding these innumerable state crimes? i have not heard any case involving any of these state crimes? what experience are you asking me to apply? >> the same kind of logical

judgment the lower courts have used -- >> logic is not experience. you are asking me to apply logic or experience. which is it? what is the experience part? >> it may be easier if i got to the logic point. the logic point involves looking at the illness of the events and asking what does the conduct in this consist of. let me take an example -- solicitation of a child under the age of 14 to engage in sodomy. a court can look at that conduct and say what that requires is an adult attempted to entice a child into a private place to engage in a sex act. is that the kind of act that is likely as a matter of logic and ordinary human experience -- adults are bigger than children, sodomy requires contact, is it likely to produce this will injury to another?

courts do not have difficulty answering that question. in cases of kidnapping, you ask, what does it mean? >> i suggest they have not much difficulty because it take horrific crime, not because they have any basis for saying with the degree of risk of serious potential risk is. >> i don't think they have to say with precision what the degree of risk is. congress gave four times to illustrate what it had in mind. burglary and extortion involved conduct against property or a threat of a person. the danger that can arise as a confrontation. if the burglar encounters someone at the home and extortionist tries good thing also that sticks in my line is the indiana case. do you remember the one i am talking about?

you look at the words that they are nested above the crimes. he would like to know an empirical fact, how is this, if of a larger nest, actually used in indiana? it might be it is really used against people involved in a violent situation or it might not be because there are a whole lot of other ones around. i have no idea whatsoever and go and do it empirical research. why doesn't the government do it? >> we have know what to begin. i think there is a difficulty and unmanageability suggests it is not what congress had in mind. but congress had in mind was identifying classes of offenses that judges are confident involve serious potential