Category Archives: Current Events

Blue Flu is Illegal and Immoral

Atlanta police officers walked off the job on June 17 to protest the prosecution of Officer Garrett Rolfe. “The union, we would never advocate this. We wouldn’t advocate a blue flu,” a union representative said. “We don’t know the numbers. Apparently we’re learning that command staff are asking outlying counties for support and aren’t getting it.” A department spokesperson said, “the department is experiencing a higher than usual number of call-outs with the incoming shift.”

What Happened?

The call-outs occurred in the area of the June 12 shooting of Rayshard Brooks by Officer Rolfe. Brooks was drunk in his car. Officers attempted to arrest him. He violently resisted, stole a taser, and punched officers before running with the taser. He turned to shoot the taser at the officer, who shot him with a handgun. The shooting was recorded by several cameras and was broken down in the video below.

Protesters believe that the shooting was unjustified because Brooks was running away. The death sparked protests in the city and led to Police Chief Erika Shields’ resignation less than 24 hours later. Police believe that the shooting was justified because of Brooks’ violent resistance and taser use. Rolfe’s record also shows an additional use-of-firearms incident, in 2015, without note of any disciplinary action.

Officer Garrett Rolfe was fired and charged with felony murder. In fact, Fulton County District Attorney Paul Howard charged Rolfe with a total of 11 counts, including aggravated assault with a deadly weapon.  The felony murder charge carries a possible death sentence or life in prison. Aggravated assault can come with a penalty of up to 20 years.

Police in Atlanta Go on Strike

Hours after the charges were announced, some Atlanta police officers began calling in sick just before their night shifts started. “This is not an organized thing, it’s not a blue flu, it’s not a strike, it’s nothing like that,” Vince Champion, a spokesman for the International Brotherhood of Police Officers, told NBC News. “What it actually is is officers protesting that they’ve had enough and they don’t want to deal with it any longer.” The “blue flu” describes a situation when a large group of officers simultaneously call in sick. It is not a formal strike, but accomplishes the same result.

“Blue Flu” Police Strikes are Illegal in Georgia

It is illegal for police to go on strike in Atlanta. Title 45, Chapter, 19, Article 1 of the Georgia Code governs strikes by public employees. Section 2 is titled, Public employees not to promote, participate in, or encourage strikes.” It reads, “[n]o public employee shall promote, encourage, or participate in any strike.” It is not a complicated law. Section 3 forbids supervising personnel to “authorize, approve, or consent to a strike.”

The punishment for violating this section is harsh. Violators “shall forfeit his or her civil service status, job rights, seniority, and emoluments, if any.” O.C.G.A 45-19-4 (2010). Moreover, anyone fired for striking cannot be rehired for three years. If a violator is rehired, they are at will for five more years.

The Georgia Code also criminalizes people who encourage public employees to strike, whether or not those people are public employees themselves. “Any person who is not a public employee and who shall knowingly incite, agitate, influence, coerce, persuade, or picket to urge a public employee to strike shall be guilty of a misdemeanor.”

I hope this guy isn’t in Georgia

The Georgia State University Law Review has an article explaining how this law was passed. The rationale applies squarely to the “blue flu” protests today.

In 1997, the City of Atlanta School Board chose not to award salary increases to most “classified employees,” such as school bus drivers, cooks, and custodians, after it conducted a study concluding that Atlanta’s classified employees were earning more money than many of their suburban peers. On September 10, 1997, 204 of the 317 school bus drivers employed by the City of Atlanta called in sick to retaliate against the School Board’s decision to withhold raises that year.

In other words, school bus drivers retaliated against the School Board in the same way that police officers are now retaliating against the district attorney’s office.

The strike left thousands of children stranded on street corners. Some [students] waited for nearly two hours for bus drivers to make extra runs to pick them up.

Furious legislators learned that the strike was legal. There was no way for them to force the bus drivers back to work. Representative Earl Ehrhart said, “this is the perfect example of why [public employees] are not allowed to strike. [The danger to the children] was frightening.” Representative H. Doug Everett said, “We don’t want police, firemen, public safety workers, or even trash patrol workers to strike …. Their jobs are vital. They have people in the palms of their hands. People in those positions should not be able to endanger the safety and welfare of other citizens.”

What About California?

The California Supreme Court has held that strikes by nonessential employees are generally legal, except in cases where the strike poses an “imminent threat” to public health and safety. (County Sanitation District No. 2 of Los Angeles County v. Los Angeles County Employees Association (1985) 38 Cal.3d 564, 586.) This was a change to the former rule that all public-employee strikes were illegal. (Id. at p. 585.) However, this did not legalize strikes by police. The court “immediately cautioned […] that the right of public employees to strike is by no means unlimited.” (Id.) The court used the following standard:

“Strikes by public employees are not unlawful at common law unless or until it is clearly demonstrated that such a strike creates a substantial and imminent threat to the health or safety of the public.”

(County Sanitation District, 38 Cal.3d at p. 586.)

Public employees, “such as firefighters or law enforcement personnel, whose absence from their duties would clearly endanger the public health and safety,” still cannot strike. (Id. at p. 586-587.)

Blue Flu Police Strikes are Immoral

The Georgia Legislators are right about bus drivers and they are right about police officers. The jobs they hold are too important to the public to be withheld in a labor dispute. If you don’t like what your boss is doing, you can’t endanger public safety to get your boss to change. If a policeman doesn’t like the charges brought by the DA, they can’t stop patrolling until he changes his mind. The people hurt by police strikes are innocent. They paid for a public service that they are not getting. Why? Because the person they paid wants to leverage their suffering in some way. In this case, some officers in Atlanta want to leverage the suffering of Atlanta crime victims in order to save their fellow officer from prosecution. That is easy to understand and obviously wrong.

Police know that they are forbidden from striking. And even thinking about this issue for a few minutes would be enough for them to understand the rationale. That’s why the phrase “blue flu” is going around. They want to strike anyway, even though they know it is illegal. But to admit they are striking is to admit they are breaking the law. So they are using a euphemism. “We are not striking, we just all have the flu at the same time.” It is dishonest.

That’s what bothers me the most about this situation. Breaking the law bothers me, of course, I’m a prosecutor. Breaking the law when you are supposed to be enforcing it bothers me even more, it’s hypocrisy and betrayal. And then lying about the fact that you are breaking the law you are supposed to enforce is the icing on the cake.

The Counter-intuitive Liberal Case to Fund the Police

Matthew Yglesias has a piece in Vox titled, “The Case for Hiring More Police Officers.” In it, he sets forth a liberal rationale, not for defunding the police, but for doing the opposite. It is thoughtful and logically written. Yglesias also makes the point that hiring more police would do more than reduce crime; it would also be politically savvy for liberal politicians. His colleague German Lopez has written about President Trump’s efforts to defund the police. Both are worth a read.

The Idea Is Popular

Yglesias wrote his piece in February of 2019, after Black Lives Matter became a movement, but before the death of George Floyd. He cited several studies showing the idea was popular at that time, both with Americans in general and with the black community. But would it still be popular now? A June 9-10 2020 YouGov poll still shows that only a tiny fraction of Americans want to cut police funding. When asked, “do you favor or oppose cutting funding for police departments?” The responses were favor 25%, oppose 53%. In other words, cuts are opposed by a majority of Americans. Only 24% of Americans agreed with the statement “[p]olice reform hasn’t worked. We need to defund police and reinvent our approach to public safety.” Only 33% of blacks agreed with that statement. The poll is a treasure trove of data on criminal justice: you should read it if you have time.

The Cato Institute has also done recent polling on this issue. You can read the details in their article, “Americans Don’t Want to #Defund the Police, Instead They Agree on Reform. The title says it all. They go on: “[i]t’s also useful to keep in mind that few Americans of any racial group support some of the more radical changes demanded by some activists. For instance, few people support calls to abolish or defund the police: 9 in 10 black, white and Hispanic Americans oppose reducing the number of police officers in their community—and a third say their community needs more officers…”

Camden, New Jersey Is Actually an Example of Funding the Police

Much has been written about Camden, New Jersey, a town that “defunded” it’s police department. “Defund” never means defund in these conversations. What Camden actually did was increase the number of police on the streets. They replaced the city police force with a county force. “The new county force is double the size of the old one.”

Joe Biden and Bernie Sanders Want to Fund the Police

Joe Biden seems to agree. In an opinion piece in USA Today, he wrote, “I’m proposing an additional $300 million to reinvigorate community policing in our country. Every single police department should have the money it needs to institute real reforms like adopting a national use of force standard, buying body cameras and recruiting more diverse police officers.” More police officers is not defunding the police, obviously.

Bernie Sanders agrees. ““I think we want to redefine what police departments do, give them the support they need to make their jobs better defined,” said Sanders.  On June 2, he told Sen. Chuck Schumer that “we need to enhance the recruitment pool by ensuring that the resources are available to pay wages that will attract the top tier officers we need…”

Finally…

We should remember that there is also a moral case for funded, effective police. Here’s a story from Reddit that illustrates this well.

Abolishing Police
byu/RickWest495 inDefundPolice

Policing Is Not Racist

I agree with James Comey, who put it this way:

I believe law enforcement overwhelmingly attracts people who want to do good for a living—people who risk their lives because they want to help other people. They don’t sign up to be cops in New York or Chicago or L.A. to help white people or black people or Hispanic people or Asian people. They sign up because they want to help all people. And they do some of the hardest, most dangerous policing to protect people of color.

(James Comey, Hard Truths: Law Enforcement and Race.)

Comey described the birth of the myth of racist policing as follows.  Many police officers work in places where a huge proportion of street crime is committed by people of color.  These officers learn from those experiences and begin to be more suspicious of people of color than similarly situated white people.  Comey, and others, have defended this behavior as “maybe even rational.”  For example, New York City is 25% black.  Yet blacks were the victims of 55% of the city’s murders and 61% of the suspects, according to the NYPD.  Others cite even more disturbing statistics.

I think this may be the birth of things like bias and racial profiling.  And certainly, there are racist cops, just like there are racists in every profession, although the power police wield makes it much more important to root out individual racist cops.  But calling all police racists, or calling police racist as an institution, is inaccurate.  It does nothing to help crime victims and certainly nothing to improve policing.

Black Cops Agree

Comey is white, but his view is not limited to white people. Bernard Parks, the first black police chief of Los Angeles, said that racial disparities resulted from the choices of criminals, not police bias. “It’s not the fault of the police when they stop minority males or put them in jail. It’s the fault of the minority males for committing the crime. In my mind it is not a great revelation that if officers are looking for criminal activity, they’re going to look at the kind of people who are listed on crime reports.” Charles Ramsey became chief of police in Washington D.C. in 1998. He said, “not to say that [racial profiling] doesn’t happen, but it’s clearly not as serious or as widespread as the publicity suggests. I get so tired of hearing that ‘Driving While Black’ stuff. It’s just used to the point where it has no meaning. I drive while black – I’m black. I sleep while black too. It’s victimology.”

Many Disagree

Paul Butler, writing in the Guardian, says, “The US criminal legal process is all about keeping people – especially African American men – in their place.” This ignores the fact that “the lifetime risk of incarceration skyrocketed for African American male high school dropouts with the advent of mass incarceration, it actually decreased slightly for black men with some college education” according to James Forman Jr.’s book, Locking Up Our Own.  This suggests that policing is related to class, not race. Radley Balko, writing in the Washington Post, wrote an opinion with the headline, “There’s overwhelming evidence that the criminal-justice system is racist.”  He has a lot of links, and I’m looking forward to going through them.  Only a few paragraphs in, however, he changes the definition of racism to fit his argument.  To him, systemic racism means, “we have systems and institutions that produce racially disparate outcomes, regardless of the intentions of people who work within them.”  That’s not what “racist” means to most people.

What is Systemic Racism

A dictionary is a repository of agreed-upon definitions of words.  It reflects the concepts that people understand when words are used.  You may use “up” to mean “down” and “hot” to mean “cold”.  You can create your own private definitions of words.  But when you use these words in public, especially in a newspaper article or other writing intended for public consumption, you cannot create your own private meaning.  If you say the sky is down and snow is hot, you are not being accurate, regardless of your private definitions.

We see this problem with the phrase “systemic racism.”  According to Wikipedia, the phrase was coined by activists in the 1960s, but it does not provide their definition.  Wikipedia’s first “definition” of systemic racism is taken from a British judge, and differs from Balko’s definition above and the dictionary definition below.  Then the article provides a second definition, “differential access to the goods, services, and opportunities of society.”  Later, the article has a third definition by Professor James M. Jones. It is remarkable that an encyclopedia article on systemic racism can’t even agree with itself about what the terms mean.

When no one can agree on a definition, we must ask ourselves what a reasonable person hearing the words “systemic racism” will understand them to mean.  Luckily, we have agreed-upon definitions of these words in the dictionary.

The Oxford Dictionary defines racism as “prejudice, discrimination, or antagonism directed against someone of a different race based on the belief that one’s own race is superior.”  A system is a set of things working together as parts of a mechanism or an interconnecting network; a complex whole.  Systemic racism, therefore, is a set of things working together with prejudice, discrimination, or antagonism against someone of a different race based on the belief that one race is superior.

Merriam Webster’s definition of racism is similar. Until June 10, 2020, when they changed it to support those who argue that systemic racism exists. The definition was explicitly changed to support this position. The change was requested by a 22-year-old college student who “noticed in discussions about racism that white people sometimes defended their arguments by cutting and pasting the definition from the dictionary.”

Someone wondering if there is systemic racism in policing may not know which of the definitions to go with. They may not know that some have changed the definition to support their political positions.  And how many people will hear the phrase “systemic racism” and even look it up in the first place?  Most people will simply apply the common meaning of each of those words to the concept.  When someone like Balko says there’s systemic racism in policing, most people will understand him to mean that police work with prejudice, discrimination or antagonism against someone of a different race based on the belief that their own race is superior.  After all, that is the definition of the words.  The problem is, that isn’t true.  Balko and others call the system racist, and when it turns out that the definition of “racist” is not met, they respond that they weren’t using that definition.  This bait and switch is dishonest.  Don’t forget that calling someone (or some system) racist is an extremely serious accusation.  Being a racist is one of the worst things a person can be in today’s society.  Supporting a racist system is even worse.  Yet some accuse people and the systems they work in of being racist all the time.  It shouldn’t be done, especially when the accuser is using a made-up definition of racism in the first place.

Authors Who Don’t Think the System is Racist

Rich Lowry, writing in National Review.  Andrew Sullivan in New York Magazine. William Barr on Face the Nation.

The Nine Principles of Policing

In the wake of the murder of George Floyd, many people have proposed radical reforms of the police. One of the most radical things that we can do is to bear in mind the original purposes of police.

British police officers are called “Bobbies” after Robert Peel, who established the London Metropolitan Police.  Peel developed the idea of police officers as “citizens in uniform.”  Peel had 9 principles of policing issued to every new police officer from 1829 onward.  They are still on the government’s website. They are:

  1. To prevent crime and disorder, as an alternative to their repression by military force and severity of legal punishment.
  2. To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour, and on their ability to secure and maintain public respect.
  3. To recognise always that to secure and maintain the respect and approval of the public means also the securing of the willing co-operation of the public in the task of securing observance of laws.
  4. To recognise always that the extent to which the co-operation of the public can be secured diminishes proportionately the necessity of the use of physical force and compulsion for achieving police objectives.
  5. To seek and preserve public favour, not by pandering to public opinion, but by constantly demonstrating absolutely impartial service to law, in complete independence of policy, and without regard to the justice or injustice of the substance of individual laws, by ready offering of individual service and friendship to all members of the public without regard to their wealth or social standing, by ready exercise of courtesy and friendly good humour, and by ready offering of individual sacrifice in protecting and preserving life.
  6. To use physical force only when the exercise of persuasion, advice and warning is found to be insufficient to obtain public co-operation to an extent necessary to secure observance of law or to restore order, and to use only the minimum degree of physical force which is necessary on any particular occasion for achieving a police objective.
  7. To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police, the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.
  8. To recognise always the need for strict adherence to police-executive functions, and to refrain from even seeming to usurp the powers of the judiciary, of avenging individuals or the State, and of authoritatively judging guilt and punishing the guilty.
  9. To recognise always that the test of police efficiency is the absence of crime and disorder, and not the visible evidence of police action in dealing with them.

New York City Police Commissioner William J. Bratton said, “I carry these with me everywhere. My bible.” The New York Times was moved to do an extensive article on Bratton and his love of Peel. Unfortunately, he is not immune from the present moment.

Annotations:

“Bobbies” were called “Peelers” in Ireland.

Peele was good for more than just his nine principles. This Wikipedia article takes a deeper dive. Also check out the article on the man himself; his political career has some dark spots.

Reform Requires a Complete Picture of George Floyd

I don’t need to know much about George Floyd to be horrified by his murder. I can’t shake the image of Floyd calling out to his dead mother as he was strangled. But if we are holding up Floyd as a rallying cry for reform, then we do need to know about him. The information we need about Floyd is how his life was affected by the criminal justice system. The most important fact is that he was murdered by a policeman. But the rest of his life can teach us important things too, and might make us a little bit uncomfortable.

I recently read a New York Times article about the life of George Floyd. It went into granular detail about his exploits in sports, at work, and in religion. We found out about why he moved to Minneapolis from Houston. We found out about his propensity to hug people. We heard from an NBA star that he physically resembled. He had never been in a fight. He told jokes to cheer up his teammates after a loss. But the article totally passed over his involvement in the criminal justice system. This left me puzzled, since his involvement in the criminal justice system is the reason for his notoriety. Moreover, he is being held up as an example of why we need to reform the criminal justice system. Given that, readers need a complete picture.

The New York Times Passes Over Floyd’s Criminal History

But he returned to Texas after a couple of years, and lost nearly a decade to arrests and incarcerations on mostly drug-related offenses. By the time he left his hometown for good a few years ago, moving 1,200 miles to Minneapolis for work, he was ready for a fresh start…

For about a decade starting in his early 20s, Mr. Floyd had a string of arrests in Houston, according to court and police records. One of those arrests, for a $10 drug deal in 2004, cost him 10 months in a state jail.

Here’s a summary from the Daily Mail. “Floyd was sentenced to 10 months in jail for having less than one gram of cocaine in a December 2005 arrest. Ok, so far the Times is doing fine.  “He had previously been sentenced to eight months for the same offense, stemming from an October 2002 arrest.” The Times omitted this. “Floyd was arrested in 2002 for criminal trespassing and served 30 days in jail.” Omitted. “He had another stint for a theft in August 1998.” Also omitted. What is lost in these omissions is the implication that Floyd might have been a cocaine addict in the early 2000s.

The New York Times Omits the Facts of Floyd’s 2007 Armed Robbery

This is the most frustrating part: “Four years later, Mr. Floyd pleaded guilty to aggravated robbery with a deadly weapon and spent four years in prison.” That’s the only thing the article said. They complete omit what actually happened. Court documents detail the facts of the assault:

Here’s The Daily Mail again. Compare the detail provided here with the detail provided by the Times.

“Floyd pleaded guilty to the robbery where another suspect posed as a worker for the local water department, wearing a blue uniform in an attempt to gain access to the woman’s home… But when the woman opened the door, she realized he was not with the water department and attempted to close the door, leading to a struggle. At that time, a Ford Explorer pulled up to the home and five other males exited the car and went up to the front door. The report states the largest of the group, who the victim later identified as Floyd, ‘forced his way inside the residence, placed a pistol against the complainant’s abdomen, and forced her into the living room area of the residence. ‘This large suspect then proceeded to search the residence while another armed suspect guarded the complainant, who was struck in the head and sides by this second armed suspect with his pistol while she screamed for help.’ Not finding any drugs or money at the house, the men took jewelry and the woman’s cell phone and fled in their car. A neighbor who witnessed the robbery took down the car’s license plate number. Later, police tracked down the car and found Floyd behind the wheel. He was later identified by the woman as the large suspect who placed a gun against her stomach and forced her into her living room, the document states. 

(Emphasis added.)

They New York Times Omits the Fact that Floyd Was High When He Was Killed

Floyd went to prison for five years. He got out in 2014, and remained conviction-free until his death. He did not remain crime-free, as we know from the medical examiner’s report. He had fentanyl and methamphetamine in his system. These facts, without Floyd’s history, are interesting but not useful. But taken together, Floyd seems to be a man whose life was derailed by drug use. That’s an important thing for us to remember as we decide how to reform our laws. But the New York Times did not include the facts about his drug use in their biographical article.

Why Does This Matter? Murder is Murder, Right?

None of these things excuse the officer’s conduct. I hope they are kept out of the criminal trial, since they are inflammatory and irrelevant there. But they are relevant for people trying to reform the law. Could we have saved George Floyd by keeping him off of drugs? That is a question that would not have occurred to a reader of the Times.

The most important point is that any discussion of criminal justice reform will have to grapple with the idea that none of the people involved in the system are perfect. Many, like Floyd, are lifelong criminals who never managed to “get out” of the street. Their problems are compounded by drug use, mental health issues, and many other issues that can’t all be solved by the police. We have to understand that the people involved in the system might not be people that we would have over for dinner. Nonetheless, they don’t deserve to be treated the way Floyd was treated. We should think of Floyd as a martyr, but not as a hero, because the truth matters.

By failing to include a complete picture, the Times robs us of the ability to decide for ourselves what to make of George Floyd. They did not think this information was relevant to the public, even though they were publishing an article on his life. I can only speculate as to why they left this out. Many people assign political motives to the Times. Were they trying to make George Floyd seem like a better man, so that his death would seem more outrageous, and more people would read their coverage? Were they trying to downplay his drug addiction because they are politically hostile to drug enforcement? It’s all speculation. But I prefer to have all the facts, and I’m disappointed that I couldn’t get them from the Times.

Notes

Here’s another summary of Floyd’s record from the Sun.

Most people (on Twitter) realize that Floyd was not a hero. But here’s a couple of people who don’t.

There Are No Racial Differences in Officer-Involved Shootings

Black Lives Matter is an advocacy group founded on the belief that black lives don’t matter to police officers. They have attracted world-wide attention in the wake of the killing of George Floyd. Those of us working in the criminal justice system must listen to what Black Lives Matter is saying and try to figure out if they are right. The first question that the movement brings to my mind is, “do police kill more black people than others?” If they do, that’s strong evidence that black lives don’t matter to the police.

As everyone knows, “a primary obstacle to the study of police use of force has been the lack of readily available data.” (Roland G. Fryer, Jr., An Empirical Analysis of Racial Differences in Police Use of Force (2017) [“Fryer”].) “A simple count of the number of police shootings that occur does little to explore whether racial differences in the frequency of officer-involved shootings are due to police malfeasance or differences in suspect behavior.” (Id.)

Professor Roland Fryer conducted a study of police use of force. His goal was to provide data to the argument that police are racially baised. He summarized his findings:

On non-lethal uses of force, blacks and Hispanics are more than fifty percent more likely to experience some form of force in interactions with police. Adding controls that account for important context and civilian behavior reduces, but cannot fully explain, these disparities. On the most extreme use of force – officer-involved shootings – we find no racial differences in either the raw data or when contextual factors are taken into account. We argue that the patterns in the data are consistent with a model in which police officers are utility maximizers, a fraction of which have a preference for discrimination, who incur relatively high expected costs of officer-involved shootings.

Fryer, at p. 1.

This conclusion was controversial. That’s why I think that we should look a little closer at the study.

What Are Professor Fryer’s Biases?

Fryer has written that he lived the life “of a Southern black boy who grew up without a mother and knows what it’s like to swallow the bitter pill of police brutality.” He describes the genesis of his paper. “In 2015, after watching Walter Scott get gunned down, on video, by a North Charleston, S.C., police officer, I set out on a mission to quantify racial differences in police use of force.”

Even Fryer’s paper almost explicitly declares its biases. It starts off with a summary of police violence against black people. Fryer summarizes the history of policing by claiming that, “[f]or much of the 20th century, law enforcement chose to brazenly enforce the status quo of overt discrimination, rather than protect and serve all citizens.” That’s an extremely broad statement that many would disagree with, and which has nothing to do with the economic analysis in the paper. Fryer also summarizes the killing of Michael Brown and Eric Garner but leaves out facts that tend to exculpate the officers. He ends the paper with the sentence “Black Dignity Matters.” (Fryer at p. 40.)

In the Wall Street Journal, Fryer wrote, “Are there racial differences in the most extreme forms of police violence? The Southern boy in me says yes; the economist says we don’t know.”

Police Are More Likely to Use Non-Lethal Force on Non-Whites

Fryer starts by analyzing less than lethal force. He notes that the use of force is extremely rare. For example, 0.26% of interactions between police and civilians involve an officer drawing any weapon. Only 0.02% rise to the level of baton use. The raw data shows that blacks and Hispanics are more than 50% more likely to have police use force. Fryer then accounts for 125 variables, including “baseline characteristics, encounter characteristics, civilian behavior, precinct and year fixed effects.” (Fryer at p. 3.) He finds that despite accounting for these variables, police still use force more often on non-whites. Even though there are racial differences in the use of non-lethal force, Fryer does not find that they are the result of racism. He simply says that they are unexplained racial disparities. “As economists, we don’t get to label unexplained racial disparities ‘racism.'” For good reason: these differences could be the result of many unmeasureable factors. To jump to racism is irresponsible without evidence.

There Are No Racial Differences in Officer-Involved Shootings

In stark contrast to non-lethal uses of force, we find that, conditional on a police interaction, there are no racial differences in officer-involved shootings on either the extensive or intensive margins.

Fryer, at p. 4.

In fact, controlling for variables, Fryer found “that blacks are 27.4 percent less likely to be shot at by police relative to non-black, non-Hispanics.” (Id. at p. 5.) He cautions that the relative variability “is measured with considerable error and not statistically significant.” (Id.) In other words, it’s hard to tell how much less likely blacks are to be shot, but it is possible to tell that they are less likely to be shot. He has other caveats as well; everyone should carefully read this paper. The most important, to my mind, is that some of the conclusions are based on police reports, which may be written in such a way as to minimize bad conduct.

Who is Roland G. Fryer, Jr.?

Roland G. Fryer is a professor in the Dept. of Economics at Harvard University, a member of the National Bureau of Economics Research, and the W.E.B. Du Bois Institute. He was also “chief equality officer” for New York City’s Department of Education under Mayor Michael Bloomberg.

Fryer is black. I normally wouldn’t mention it, but I’ve been hearing a lot of rhetoric lately directing white allies to listen to black people. When he was a young man, Roland worked at a McDonald’s drive-thru. He went on to become the youngest African-American to receive tenure at Harvard. He is a recipient of the MacArthur “Genius” Fellowship.

Notes

Fryer’s conclusions were controversial. Dean Knox, a Princeton professor, criticized them in two papers. They were criticized even more in the press. Here’s an example. The Guardian screws up statistics on police shootings and fails to even mention this paper in an article on the subject. The statistics and omissions are so bad you have to wonder what the editor was thinking. Moreover, at least two other studies, both published in 2016—by Phillip Atiba Goff et al. and Ted R. Miller et al.—have since found the same conclusions using different data.

Fryer wrote an op-ed in the Wall Street Journal on this subject. He believes policing is racist, I don’t. The Attorney General thinks there is no such thing as systemic racism. For what it’s worth.

Fryer was placed on administrative leave for two years, beginning in 2019, for sexual harassment. You can read about the substance of the allegations here.

How Police are Held Accountable

In the wake of George Floyd’s death, it’s important to understand the ways that police are held accountable. There are four overlapping ways that consequences follow bad police behavior.

Administrative Discipline

Administrative discipline is imposed when a police agency writes up an officer or other employee for violating policy.  This is similar to what might happen in any workplace.  Officers can also be administratively disciplined for using excessive force, violating a suspect or witness’s rights, dishonesty in any capacity, or failing to be polite and professional

Collateral Discipline

When a police officer is disciplined by an oversight body.  For example, the the Berkeley Police Department has a Police Review Commission. The PRC is an independent, civilian oversight agency to the BPD. The PRC advises city leaders and the BPD on police policies and investigates complaints by members of the public against police officers. This type of oversight is exists in large jurisdictions like Los Angeles, San Francisco, and San Diego as well.

One important form of collateral discipline is the DA blacklist – also called the Brady list. Whenever the DA’s office believes that an officer is untruthful, they have to disclose that information any time they want to use that person as a witness. They also have to disclose it if that witness’s untruthfulness is exculpatory. And dishonesty is not the only thing that prosecutors must disclose. They must also disclose fabrication of evidence and the use of excessive force. If you are a prosecutor and your arresting officer has been fabricating evidence, your case is dead. DA’s offices keep a list of such officers. Prosecutors cannot use them as witnesses. Putting a cop on this list means that they are useless out in the field. After all, any case they touch is dead. So police agencies must move them off the street and onto a desk. The list prevents officers from testifying. The policeman himself has no say in the matter. There is no appeal. The police agency has no say in the matter, nor do judges or legislators. It’s all up to the DA, who is an independently elected position. Take a moment to think about this. The DA can take a cop off the street, even though the cop works for another agency that may disagree.

Civil lawsuits

Police can be sued if they hurt a person in any way, including violating their constitutional rights even without injury. They have to prove that they were damages by a preponderance of the evidence – meaning it was more likely than not. They do not need a unanimous jury verdict, 9 out of 12 is enough. The point is that civil suits are much easier to win than criminal prosecutions. These require proof beyond a reasonable doubt. And a unanimous jury is required for conviction.

If a person proves a case against a cop, they can get their actual damages: the money they actually spent on legal bills, lost during time off from work, and other measureable damages. They can also damages for emotional distress, which can’t be measured. And finally, the civil court can impose punitives damages on the police, which get paid to the individual. These amounts can be so high that they are effectively lottery tickets.

The law provides incentives lawsuits against the police for violating constitutional rights. For example, the law gives incentive for lawsuits regarding excessive force, overdetention, cruel and unusual punishment, and even wrongful death. The law empowers lawyers to act as private prosecutors. If they can prove a constitutional violation, the police agency must pay their attorneys fees. Even if the victim is already being awarded millions in the types of damages listed above. In fact, if the plaintiff only wins $1 in damages, the attorney must still be paid.

The practical result of all this money is that police are sued all the time for even the most minor complaints.  There is literally an army of plaintiff’s lawyers scouring every jail, booking record, and criminal courthouse for even a whiff of a meritorious lawsuit. And most plaintiff’s lawyer are not just independent, they are outright hostile to police.

The plaintiff’s lawyer hired by George Floyd’s family to sue the police

Since the pot of money is so large, the best plaintiff’s lawyers run sophisticated operations with multiple lawyers, investigators, paralegals, and other staff preparing the case. They have the subpoena power, and can compel testimony from police and other witnesses in the form of depositions. These examinations are taken under oath, with the penalty of perjury. They usually last much longer and go into more detail than witness testimony in criminal court.

Although I personally dislike these kind of lawyers, and must declare my bias, they provide me with a lot of confidence that the system is not racist. If it were, these guys would sniff it out and make a ton of money on it. When they succeed, and a cop is found liable, the other types of accountability follow. A righteous lawsuit will also mean administrative discipline, collateral discipline, and could mean criminal prosecution, if not for the underlying conduct, then for perjury during a deposition.

Criminal Prosecutions

Police are not above the law. They may be prosecuted in criminal court just like anybody else. They do not have any special privileges or defenses. They are prosecuted all the time for private offenses in their personal lives, such as domestic violence, battery, or fraud. It is less common for them to be prosecuted for their performance on the job.

Police and prosecutors often interact.  It can be tough to file on people that you work with.  Nevertheless, I’ve managed to do it several times, and it is common enough every DA will do it once or twice.  Many prosecutors offices also have a “Justice System Integrity Division” whose only job is to prosecute police.  They go anywhere in the county, and thus don’t interact with any one police agency on a daily basis.  Also, there is tremendous pressure on the DA’s office to be hard on cops, and no pressure to be soft on them.  Here’s an example. 

Finally, cops may also be prosecuted by the Attorney General’s office.  If they feel that a local DA has a conflict of interest, they are required to take the case and prosecute it themselves. The California Attorney General has a special unit for this purpose.

When Are You Allowed to Have An Opinion?

Social media has been a battlefield since the murder of George Floyd. One of the things I keep reading is that white people should keep their opinions to themselves. There is no way for them to understand what life is like for people of color, their opinions would therefore lack validity and should not be discussed. I’m trying to paraphrase as best I can. This image, found on Facebook, does a pretty good job of conveying the message:

I love the idea of different people coming together. But I don’t think that there are any rational ideas that I just can’t understand. There are emotions that I can’t understand. I’ve never been through many different kinds of trauma. But ideas are universal. You just need logic and evidence.

It seems like there is a subtext here. The subtext is “I am not entitled to an opinion, but I support yours.” That’s what worries me about this part of the discourse. Everyone is entitled to an opinion about our politics, including opinions about police brutality. Their opinions shouldn’t be shut down because of the color of their skin, obviously. The answer to society’s problems isn’t censorship. No idea is invalid; it’s true or false, useful or useless. No one should be silenced. Everyone has a right to speak. A view isn’t right or wrong just because of who is saying it. Truth doesn’t know a skin color. These seem like basic things that some are forgetting lately.

Flip it around?

Prosecutors have a lot of expertise on the criminal justice system. With the exception of other people working in the courtroom, they have more than virtually anyone else. Imagine a prosecutor speaking to a protester and saying, “You don’t know what you’re talking about. I do.” The protester responds, “I have a right to my own opinion.” Whose side should we be on? Even though I’m a prosecutor, I would be on the protester’s side here. After all, with enough facts, the protester and the prosecutor should be able to reason together. The prosecutor cannot say, “You will never understand but you must stand with me.” It’s wrong and offensive.

Notes

More people than just protesters think this way. Philosopher Patrick Stokes described the expression as problematic because it is often used to defend factually indefensible positions or to “[imply] an equal right to be heard on a matter in which only one of the two parties has the relevant expertise”. I think he’s wrong. Although it’s interesting to ask what the relevant expertise is when discussing police brutality.

The expression “check your privilege” seems to be another well-intentioned but misguided way to discuss race.

The System is Broken? There Is No System

Finally, the incremental and diffuse way the war on crime was waged made it difficult for some African American leaders to appreciate the impact of the choices they were making. Mass incarceration wasn’t created overnight; its components were assembled piecemeal over a forty-year period. And those components are many. The police make arrests, pretrial service agencies recommend bond, prosecutors make charging decisions, defense lawyers defend (sometimes), juries adjudicate (in the rare case that doesn’t plead), legislatures establish the sentence ranges, judges impose sentences within these ranges, corrections departments run prisons, probation and parole officers supervise released offenders, and so on. The result is an almost absurdly disaggregated and uncoordinated criminal justice system—or “nonsystem,” as Daniel Freed once called it.

James Forman Jr., Locking Up Our Own, pp. 13-14.

I wrote recently about the decentralized nature of the criminal justice system. It’s literally the first thing written on the first page of my law school criminal law book. It’s placement there suggests that it is the foundation of understanding criminal law. Understanding the whole edifice requires understanding this basic fact. The professor’s placement suggests they agree. By the time I read this James Forman quote, it seemed like welcome confirmation of a fact universally understood.

The protests and political discourse since the death of George Floyd came as a rude awakening. Many people believe that there is a unified criminal justice system. They believe that the people in the system share incentives, motivations, and political views. They believe that the system can act in a coordinated way to carry out controversial political goals. If this all seems a little abstract, let me be more concrete. There are people out there who believe the system is designed to kill people of color and then cover it up. Or as some say, “either the system is broken or it’s working exactly the way they planned.” You can buy that on a shirt here.

I disagree with this view because I believe I understand some basic things about our “almost absurdly disaggregated and uncoordinated criminal justice system.” The fact that it is a non-system, as Daniel Freed called it, is good news for those who believe the system is malicious. After all, an absurdly uncoordinated system could hardly organize a police murder and cover it up. It would take the collusion of agencies with different missions, different elected leaders, and different motives. Or, if you believe that police murder and cover happen organically, by accident, it would require the failure of multiple layers of oversight by people in and out of uniform.

I kind of assumed that people were aware that the police were themselves policed by several layers of oversight. Any one of them could speak up and foil a murder conspiracy and coverup. It would take a massive, multi-agency failure to something like that to happen, not to mention a failure of investigative journalism.

Nevertheless, there are people out there who believe the system is designed to kill people of color and then cover it up. I hope those people would be receptive to this argument. It’s not political. It doesn’t rely on a rosy view of police or of human nature. The view is simply based on the premise that it’s hard to get different agencies to cooperate, and the more agencies you need to cooperate, the less likely cooperation will happen. This view doesn’t even take into account the fact that committing murder and covering it up is morally outrageous and offensive to the normal people that work in these institutions. In other words, even if you could get a bunch of different agencies to work with each other, you’d be asking them to cooperate on the most heinous crime in the law. The criminal justice system barely gets its act together to stop crime!

Notes

Here’s another shirt from the same site:

At least this shirt calls it the “judicial system.”

Prison Was For Punishment. Until 2017

California Penal Code section 1170 used to read as follows: “[t]he Legislature finds and declares that the purpose of imprisonment for crime is punishment.” The clarity of this finding is breathtaking. There are no references to incapacitation, rehabilitation, or anything else. In California, the reason for prison is punishment. Until 2017.

Former section 1170 stood in stark contrast with the Model Penal Code, the New York Penal law, and the prevailing ideas about criminal justice in American politics. These sources shy away from the idea of punishment. It’s almost a dirty word. Instead, they focus on ideas that are more palatable to the public, like rehabilitation. Even if there is overwhelming evidence that rehabilitation is a mirage, a concept that sounds good but doesn’t actually work. Restorative justice is equally vague and crowd-pleasing phrase, that I would describe as pablum if the stakes weren’t so high. No one can seem to agree on what it is: the Wikipedia article alone has at least three competing definitions. But most importantly (and unfortunately), there is no empirical evidence that it reduces crime or recidivism. Incapacitation is a concept that is commonly included in the purposes of punishment, but was also missing from section 1170. Up until 2017, punishment stood alone as the function of prison.

Assemblymember Shirley Weber

Penal Code section 1170 was amended on January 1, 2017 by AB2590. Assemblymember Shirley Weber sponsored the bill. She called it the “Restorative Justice Act.” Weber is a former professor of African-American Studies at San Diego State University. Chased out of Hope, Arkansas, her family moved to Los Angeles when she was child. She went to UCLA, where she earned a doctorate in communication in 1975. She is the widow of judge Daniel Weber and a mother of two.

That bill changed the legislative findings and declarations so that “the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice.” It also directed the California Department of Corrections to change its mission statement to conform to the new purpose of sentencing. The new section reads, “[t]he Legislature finds and declares that the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice.” (Pen. Code section 1170(a)(1).)

I think it’s worth noting that AB2590 did not actually change anything about how the criminal justice system works. Even though the bill is named after the concept of restorative justice, the bill didn’t actually implement any ideas associated with that concept. All AB2590 did was change the legislature’s mission statement and CDCR’s mission statement. It looks like a political gesture, not actual law-making, but then again, the legislature is a political place.

Before 2017, Penal Code section 1170 could’ve solved a lot of arguments. Especially arguments about mass incarceration, recidivism, and the purpose of prison. In California, before 2017, the purpose was brutally clear. Now, like many things in our justice system, this issue is up in the air.