27 Black Men Were Killed By Police In 2019

The shooting death of Daunte Wright has put police shootings back in the news, at the same time as the public awaits a verdict on the killing of George Floyd.

One frequent observation in law enforcement circles is that media coverage of these tragedies has led people to overestimate the number of black men killed by police. Even one is too many. But exactly how bad does the public think the problem is?

Police Brutality Against Black People Happens Much Less Than the Public Thinks

According to Mapping Police Violence, 27 black men were killed by police in 2019. But a study by the Skeptic Research Center investigated how knowledgeable people were when it comes to fatal police shootings. The results are depressing; the public massively overestimates the number of police killings of black men.

The available data on police shootings of unarmed Black men is incomplete; however, existing data indicate that somewhere between 13-27 unarmed black men were killed by police in 2019. Adjusted for the number of law enforcement agencies that have yet to provide data, this number may be higher, perhaps between 60-100. Yet, over half (53.5%) of those reporting “very liberal” political views estimated that 1,000 or more unarmed Black men were killed, a likely error of at least an order of magnitude.

The researchers put it dryly. “Our overall findings indicate that people are uninformed regarding the available data on fatal police shootings in the US.”

Why Is This Happening?

The New York Post has a theory about why this is happening:

The media has the power to shape perceptions — and when they consistently prejudge, distort and exclusively focus on high-profile cases involving white police officers and black suspects (such as Jacob Blake most recently), it creates an illusion of pervasive police violence perpetrated toward African Americans. Meanwhile, unarmed white people killed by cops […] are ignored by the media. Consequently, the public likely perceives this problem to be almost nonexistent. 

Political science doctoral candidate Zach Goldberg has shown in his research, unarmed black victims of fatal police shootings generate staggeringly nine times as many news search results compared to white victims. 

People who get their news from Twitter might also read something like this:

It is inaccurate to say that there is an endless list of black lives lost to police violence. But according the the research, many people believe it.

There is No Evidence That White Officers Routinely Kill Black People Out of Racist Animus

As John McWhorter points out in an excellent article, police violence is not a white-on-black problem. People of every race are killed by police, sometimes for good reasons and sometimes for bad reasons.

Despite these facts, the Skeptic Research Center Report finds that everyone overestimates the percentage of people killed by police that were black. This effect is particularly pronounced amount political liberals, but it is not exclusive to them.

Particularly striking is the finding that very liberal respondents believe that 60.4% of people killed by police were black. The actual percentage is 24%. This may be explained by benign reasons, such as a greater concern about racism or differential media consumption. But clearly, people believe that the problem of police violence against blacks is worse than it actually is.

McWhorter then tackles the following oft-quoted thesis: black people make up just 12% of the population but account for a quarter of police killings. Therefore, there is systemic racism in policing. McWhorter says, “these figures are not necessarily evidence of police racism.” His answer is worth quoting in full:

The socioeconomic gap between blacks and whites is doubtless an important contributing factor. Police are called to poor neighborhoods more often, so poverty makes someone more likely to encounter law enforcement. From the 1970s through the 1990s, many conservatives argued that too many black people were on welfare. Liberals and progressives replied that, firstly, more white people were on welfare and that, secondly and more importantly, a greater proportion of the black population is on welfare because a greater proportion of black people are mired in poverty. In this context, former Washington Post journalist Wesley Lowery observed that black people are about two-and-a-half times more likely to be killed by cops than their representation in the population would predict. Today, the percentage of black people living in poverty is about two-and-a-half times that of whites (22 percent and nine percent, respectively, in 2018).

He concludes: ” Entrenched socioeconomic disparities should concern us all, and are as intolerable as cop murders. But the idea that the police murder out of racist animus is much less clear than we are often led to suppose.”

Notes

Twitter is an awful place to look for facts about current events. Here are a couple of examples regarding police use of force.

Chris Darden on Race and Prosecution

Race is a controversial topic, especially today, but those of us in criminal prosecution cannot ignore it. I began reading Christopher Darden’s In Contempt, to get a look at how he conducted the OJ Simpson trial. Although I haven’t finished it yet, or even got to the portion of the book discussing the trial, I was struck by Darden’s thoughts about race and prosecution.

Darden’s Early Radicalism

As a young man, Darden admired Malcolm X and the Black Panthers. He described himself as a “baby panther,” a “young militant.”

Sadly, by the time Dr. King was killed, I – like many other young blacks – had already given up on nonviolence as a solution to the problems of race and poverty. If we needed another indication that nonviolence wasn’t working, Martin’s murder was it. I’d watched the news coverage of protests that quickly dissolved into fire hoses, dogs, and cracker police officers with nightsticks. Nonviolence was an admirable, right-minded idea, but it didn’t work fast enough for young people like me, people excited by the word “revolution.”

He says, “my stands then were simple. The white man was a racist oppressor. The government conspired to jail and kill the brothers who stood up to it.”

Darden Joins the DA’s Office

As Darden grew up, he fell in love, had a child, and went to law school. Given his youthful views, his next step is jarring. He was working as a lawyer at the National Labor Relations Board. “I didn’t enjoy the work and still wasn’t making enough money to help Pathenia very much with our daughter. So I applied for a job with the Los Angeles County District Attorney’s Office and got it.”

Several things jump out at me about this statement. First, Darden does not explain why he applied to the DA. Indeed, he previously described prosecutors as conspiring to jail and kill black people. After becoming a DA, he writes, “It was my job to add to the list of prison inmates.” At some point, his views must have changed radically. But he does not describe how his views changed, even though it must have been an interesting transitional period. He would even go so far as to write, “I believed I had a calling and that here, there was work I could do that would actually help people.”

Second, Darden could have just as easily applied to the public defender’s office, which is the sister office to the district attorney. Or the County Counsel, the Attorney General, the US Attorney, or any one of a dozen other government jobs that involve trial work. Did he apply to these places and not get offers? Or did he pick the DA for a reason? All of this is glossed over in one lonely sentence.

Third, Darden couches the decision as a financial one. The DA does not pay that well. And all the other jobs mentioned above have similar pay. It makes the reader wonder whether it was really about money. And if it was about something else, what was it?

Maybe his description of Los Angeles gives us a clue about how his views changed:

But the young brothers who were terrorizing Los Angeles in the 1980s and their younger brothers who are terrorizing the country today felt no kinship, no solidarity with anyone. They saw a young black man, they pulled a Glock 9-mm pistol from their sagging waistband and they shot him for the unforgivable offense of standing on the wrong corner. If they had eve heard of a time when black people stood together and tried to raise not just themselves, but everyone around them, these gangsters had long since forgotten it. More likely, no one had ever taught them.

An abandoned building in Los Angeles at the intersection of La Brea and Romaine

Darden as Prosecutor

Once Darden settled into his role as a deputy district attorney, his views seemed to mirror those of many prosecutors. “I was determined to stop as much of the violence as I could, one asshole at a time if necessary.” But race still hung over him.

Even then, people sometimes asked me how I could work so hard to put other brothers in jail. I was always amazed and sometimes angered by that question. This wasn’t an issue of solidarity or brotherhood! This was the murder of the weakest in our society by bullies, the terrorizing of entire neighborhoods and communities. The victims in these cases were usually black, and they were often old people or children. How could I put other brothers in jail? How could I not? As long as they were victimizing old people and making orphans of black children, how could I not?

Even though these views are typical of many prosecutors, Darden still had an insight into the effect of criminal justice on people of color.

You can’t just toss out the kind of anti-crime rhetoric that was fashionable in the 1980s (“This is a war on crime!”) without expecting some casualties. In this case, the casualty was Africa Americans’ trust in the police and the judicial system, which was frail enough anyway. […] In some small way, the police were to blame for that irrationality. There were simply too few black people in L.A. who didn’t have a story about being hassled, or a story about their son or husband or nephew being hassled. There were few African Americans who didn’t know someone arrested in Operation Hammer or pulled over for a phantom blinker. In some parts of L.A., people smiled and were relieved to see a police car. In others, they tensed up and were afraid.

Darden was deeply frustrated by the riots.

Korean businesses were looted and black-owned businesses were torched. For days after the riots, black people couldn’t buy a bag of groceries because they’d burned down the ten supermarkets that would do business in the ‘hood.

Darden and OJ

Darden spoke to his father after getting assigned to the prosecution of OJ Simpson. Sitting on the porch of his house, his father told him, “Black folks want to kinds of justice, like everyone else […] one for them and one for the other guy.”

I disagreed, silently. This was a strong case and black people are fair. We are repulsed at injustice. Historically, what segment of the American population is more fair than blacks? Fairness is a fundamental part of our nature. A black jury would convict if the evidence was there. I was on the outside, and just the evidence I’d heard about appeared to be more than in any of the murder cases I’d ever prosecuted. It was more than in any case I’d ever seen.

We all know how the story ends. Even though I haven’t finished the book, I’m fascinated to find out how Darden sees the outcome.

Holly Mitchell Thinks Police and Prosecutors’ Unions are “White Supremacist Organizations”

Here’s LA County Supervisor Holly Mitchell saying that police and prosecutor’s unions are “clearly such white supremacist organizations.”

She made the comments at a forum titled, “Stop LA Sheriff Attacks: Family Forum” hosted by Black Lives Matter Los Angeles. She then claimed that law enforcement was retaliating against the public for legislative defeats in Sacramento. “They know that they’ve lost more than they’ve won [in terms of getting legislation passed],” she said. “And I think that’s what then amplified their behavior, their behavior against you at the community level.”

Who is Holly Mitchell?

Holly J. Mitchell is a politician currently serving as a member of the Los Angeles County Board of Supervisors. She holds the seat previously held by Mark Ridley-Thomas. Before that, she served in the state assembly and senate since 2010. Her most notable accomplishment is prohibiting discrimination against black hairstyles in the workplace. The LA Times calls her the “queenmaker” of black politics in California.

When Mitchell ran for the seat, she criticized her opponent’s support of law enforcement. “His historic support of law enforcement, his endorsement by police unions, his crafting of Measure C several years ago, which rolled back police accountability gains that we had earned since the Rodney King experience, kind of flies in the face of what people are asking for now.”

Mitchell is also notorious for an incident in the State Senate. Another senator, Susan Rubio from Baldwin Park, adjourned the Senate in honor of Sgt. Ernie Barbossa, a 30-year LASD veteran who had recently passed away. When Mitchell heard that her colleague was honoring Sgt. Barbossa, she scowled, shook her head, and got up. She left before the senate was adjourned, while her colleague was still talking about Sgt. Barbossa’s work with at-risk youth. Although Senator Rubio only spoke for 80 seconds, Senator Mitchell left after 36 seconds before she was done. You can watch the whole thing below:

Why This is Bad

First, and most obviously, these comments are false. Police agencies in Los Angeles, including the largest, LASD, are majority-minority organizations. In other words, they are mostly people of color, with a white minority. Holly Mitchell is claiming that all of these people of color are acting against their own self-interest. She’s claiming that all these people of color are being racist against their own communities and races. It’s preposterous. People of color are not just overrepresented in these groups, they are often the majority.

Did Mitchell intend to call the 52.5% of the force that is Hispanic a bunch of racists?

And it’s not just the street cops. Inglewood, a city in Mitchell’s jurisdiction, has a black police chief, a black mayor, a black supervisor, and a majority black population. Until a few months ago, the DA was also black. Literally every leader in that town’s criminal justice organizations was black. Does Mitchell believe that all of these people are running a white supremacist system?

Calling someone a racist is a very serious allegation. Being a racist is among the worst, most hated, and most shameful things a person can be. We should not throw this allegation around. Especially because those unfairly accused of racism, in this case, cops and prosecutors, often respond with outrage and hostility.

Comments like this widen the racial divide instead of closing it. Harmful, baseless name-calling belongs in the schoolyard, not on the board of supervisors.

What Law Enforcement is Saying

Police officers are not happy to be called white supremacists. Retired LASD Chief Jim Hellmold said, “these commends are so dismissive & disrespectful to the service & sacrifice of so many honorable men and women! My late father served with his partners since the early 1960s, I served for 33 years, my sons are serving. We’re not white supremacists!” Retired LASD Commander Michael Parker said, “She is wrong. I would never be in a white supremacist organization and detest racist ideology. Also, LASD & LAPD have been majority – minority police agencies for 10+ yrs. Each have about 37% white officers, abt 46% Hispanic officers, and abt 13% Black officers.” LASD Chief Patrick Jordan said, “Can one of her staffers give her a demographics report regarding the LASD & LAPD!”

George Gascon’s History of Racist Remarks

George Gascon was recently elected to be Los Angeles County District Attorney. In part, he won by accusing police of racism and vowing to end it. But a long-overlooked declaration calls into question his sincerity.

Back in 2016, Gascon set out to investigate allegations of racism among police officers in San Francisco. He set up a “Blue Ribbon Panel on Transparency, Accountability, and Fairness.” He had apparently forgotten about his own behavior at a dinner in Massachusetts, but others had not. A retired San Francisco police officer named Gary Delagnes was there. He submitted a declaration, under oath, in which he recounted the evening. The relevant portion is worth quoting in full:

One evening in April 2010, Chief Gascon [and others] had dinner in Cambridge, Massachusetts, where we were attending a Police Union Leadership Forum organized by Harvard Law School. I had the forum organizer invite Chief Gascon to speak to the attendees. During that dinner, Chief Gascon, who was drinking heavily, began reminiscing on his time with the Los Angeles Police Department, including his involvement in the Ramparts Unit scandal. He made multiple statements that disparaged minorities. He became so loud and animated that an African-American patron approached Chief Gascon and asked him to restrain himself because his behavior was offending his family.

You can read the declaration for yourself:

Although Delagnes gave this declaration under oath, Gascon has never denied it under oath. His spokesman said, “What [Delagnes] lacks in credibility, he makes up for in imagination.” The San Francisco Chronicle followed up with Delagnes. He said that “If called as a witness by Gascon’s blue-ribbon panel, I will testify in more detail about those statements.” Unsurprisingly, Gascon’s panel does not appear to have called Delagnes as a witness. Martin O’Halloran, another former police officer, was also present and did not deny the allegations.

Although Gascon’s remarks have been overlooked during the tumultuous period that followed his election in Los Angeles, they raise many troubling questions, not the least about his hypocrisy. Can someone really lead a racial justice movement who is so open about his racial prejudices that he must be asked by a person of color to quiet down? If the allegations are false, why hasn’t Gascon, under oath, told the public what really happened? Is he claiming that the retired officer committed perjury, risking prosecution by Gascon’s office, just to get at him? These formal allegations seem to be serious enough on their own to require more from Gascon than a throw-away line by his spokesman.

Officer Characteristics and Fatal Shootings

The Study

If the police are racist, you would expect to see white officers shooting more black suspects than white suspects. Racial animosity, the theory goes, would lead white officers to take black lives at a greater rate. Indeed, this is the reason that the Black Lives Matter movement chose their name: the widespread belief that black lives don’t matter to white police.

If, on the other hand, police are not racist, you would not expect to see any differences here. Officers would be shooting only those suspects who presented a threat, and they wouldn’t consider race.

Researchers from the University of Maryland and Michigan State University looked into this question. They wrote that high profile police shootings of black people raised questions about whether the shootings were the result of racism. The shootings captured public attention, “leading in part to the Black Lives Matter movement.” So the researches trawled through data from the FBI, the Guardian, and the Washington Post and created a database. They analyzed fatal officer-involved shootings to see if there was evidence of racism. After all, “[c]oncerns that White officers might disproportionately fatally shoot racial minorities can have powerful effects on police legitimacy.” Their results:

We find no evidence of anti-Black or anti-Hispanic disparities across shootings, and White officers are not more likely to shoot minority civilians than non-White officers. Instead, race-specific crimes strongly predicts civilian race.

They note that the only other national study of this issue found the same result. (See C. E. Menifield, G. Shin, L. Strother, Do white law enforcement officers target minority suspects? Public Adm. Rev. 79, 56–68 (2019).) The authors noted that the results “bolster claims to take into account violent crime rates when examining fatal police shootings.” In other words, more people of color are killed by police because people of color commit crime at a higher rate. It’s a delicate issue, and I understand why the others used academic jargon to soften their finding. They continue:

We did not find evidence for ant-Black or anti-Hispanic disparity in police use of force across all shootings, and, if anything, found anti-White disparities when controlling for race-specific crime.

These results mirror those of Roland Fryer Jr., who found that police were more likely to use deadly force on white suspects.

The authors conclude that their study shows that hiring more diverse police officers will not reduce the amount of shootings, nor will it reduce the racial disparities in fatal officer involved shootings: these disparities are not the result of racism. Another result was that “violent crime rates strongly predict the race of a person fatally shot. The authors recommend “reducing race-specific violent crime” as “an effective way to reduce fatal shootings of Black and Hispanic adults.” Seriously. Reducing violent crime will reduce the amount of people killed by police. That conclusion should refocus our protests and effort not on police violence, but on violent crime. All this requires is “identifying and changing the socio-historical factors that lead civilians to commit violent crime.

They authors speculate about why there is no evidence of racism in fatal shootings, except evidence that whites are actually more likely to be shot. They give three possible explanations. First, officers may be concerned about being sued for shooting a black person. They reject this explanation because “it does not explain the disparity observed when comparing White and Hispanic civilians.” Second, white civilians may react differently towards police than racial minorities in crime-related situations. Perhaps whites are more aggressive, and therefore shot more often. The authors didn’t rule this out, but they believe more research is necessary. Third, “the lack of anti-Black or anti-Hispanic disparity and the impact of race-specific crime are consistent with an exposure argument, whereby per capita racial disparity in fatal shootings is explained by non-Whites’ greater exposure to the police through crime.”

The authors conclude with some caveats. This study does not conclusively prove that the police aren’t racially biased, because “racial disparities are a necessary, but not sufficient, requirement for the existence of racial biases, as there are many reasons why fatal shootings might vary across racial groups that are unrelated to bias on the behalf of police officers.”

The Retraction

The study was published on July 22, 2019. On April 13, 2020, a correction was issued. Then, on July 10, 2020, the article was retracted. What happened?

On January 21, 2020, Dean Knox and Jonathan Mummolo wrote a letter to the Proceedings of the National Academy of Sciences, who published the original study. They said the study’s approach “is mathematically incapable of supporting its central claims.” Knox and Mummolo take issue with the study’s findings that there is no evidence of anti-black or anti-Hispanic disparity, and that hiring diverse officers would not reduce shooting disparities. They criticize the authors for saying that there is no disparity in “shootings” versus “fatal shootings.” They seem to be bothered by the fact that this claim was “cited by major news outlets and in U.S. Congressional testimony.” They concluded:

Johnson et al.’s study describes attributes of fatal police shootings. While a contribution, these facts alone cannot inform the relative likelihood of White and non-White officers shooting racial minorities. Readers and policymakers should keep this important limitation in mind when considering this work.

The study was also criticized by researchers from Canada and Sweden who assume that police exposure will be the same as population proportion. This assumption is not true, since violent crime rates are vastly different for different racial groups.

The studies authors defended themselves in a reply letter. They acknowledge that fatal shootings are a different category than all shootings. But they pointed out that readers were capable of gleaning this from their article. They rebutted the rest of the criticisms leveled against them.

Then, on April 13, 2020, the study’s authors tried to head off the criticism. They issued a correction for one sentence in their article. In essence, they changed “shoot” to “fatally shoot” for the reasons outlined above. They let the rest of the article and its conclusions stand.

Several months went by. The death of George Floyd shocked the nation and the climate turned against the police. Meanwhile, defenders of the police were relying on this study to show that police were not racist. Finally, on July 10, 2020, the authors issued a retraction. They discussed their correction, but continued:

Despite this correction, our work has continued to be cited as providing support for the idea that there are no racial biases in fatal shootings, or policing in general. To be clear, our work does not speak to these issues and should not be used to support such statements. We take full responsibility for not being careful enough with the inferences made in our original report, as this directly led to the misunderstanding of our research.

While our data and statistical approach were appropriate for investigating whether officer characteristics are related to the race of civilians fatally shot by police, they are inadequate to address racial disparities in the probability of being shot.

Given these issues and the continued use of our work in the public debate on this topic, we have decided to retract the article.”

The authors originally cited to the work of Heather Mac Donald to explain their retraction. She had written about the study, in an article titled, “The Myth of Systemic Police Racism.” The authors said that Mac Donald had unfairly co-opted the paper to argue against the existence of racial bias in police shootings. Then politically conservative news outlets, such as the National Review, The Blaze, and others started to discover what had happened. They accused the authors of capitulating to an intellectually intolerant left. Here’s Heather Mac Donald herself:

Then, the authors amended their retraction statement to remove the references to Mac Donald. They said that “people were incorrectly concluding that we retracted due to either political pressure or the political views of those citing the paper. Neither is correct and so this version makes the reason more clear.”

Notes

NPR has a segment on the study. They translated the academic jargon much better than I did.

Here’s the full amended statement.

Here’s a detailed look at what happened from the Proceedings of the National Academy of Sciences itself.

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.

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.

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.

Offer Sheets Prevent Racism

The vast majority of crimes committed in California are misdemeanors, as in other states. Misdemeanors are punished by a term in county jail, but probation is much much more likely. Felonies, by contrast, are punished by state prison, although probation is sometimes available as well.

Prosecutors in misdemeanor courtrooms may have over 100 cases on calendar in a single day. People who missed their previous court dates may simply show up on any given day, further increasing the number. And misdemeanants may also be arrested on warrants and brought to court. These in custody defendants may show up at any time during the court day, and their cases are often called without a prosecutor reviewing the file at all. The point is, there’s a lot of work in a misdemeanor courtroom.

Most cases are resolved by plea bargain. Off the top of my head, I believe the number is something like 95%. For a plea bargain to happen, the prosecutor must make an offer to resolve the case to a defense lawyer. The defense lawyer is almost always a public defender. In other words, the same prosecutor and public defender bargain over hundreds of cases a week.

In this situation, many prosecutors use offer guidelines. There are lots of good reasons. First, this helps prosecutors avoid having to reinvent the wheel every time they see the same crime with a similarly-situated defendant. For example, many people with no record get arrested for driving with a suspended drivers license. It makes sense to have a standard offer for people in this situation. This offer is written in the guidelines. Second, this ensures that the punishment received for a crime is uniform in a community, and doesn’t depend on the personality of the prosecutor and the defense lawyer. Punishment should fit the crime. It should not be more severe or more lenient depending on the courtroom actors. Third, offer guidelines encourage efficiency. A defense lawyer can meet with his client and tell them what to expect without even talking to the prosecutor, much less having a protracted negotiation.

There is one final benefit to offer guidelines. They are color-blind. Offer guidelines are a protection against implicit bias on the part of the prosecutor, defense lawyer, or judge. They don’t cure implicit bias, but they are a powerful tool for those who want to evenhandedly enforce the law.

Since most prosecutors’ offices use offer sheets, and since they are colorblind, it is hard to argue that prosecutorial discretion is being applied in a racially discriminatory way. After all, the vast majority of crimes are misdemeanors, and the punishment for those crimes is right there in the guidelines. Everybody gets the same punishment for a second-time DUI, for example, regardless of race, age, sex, or anything else. Low term, mid term, and high term guidelines for felonies are the same sort of safeguard. Do these protections make it impossible for bad people to discriminate? No. But they are strong evidence that there is no “systemic racism” lurking in the field of criminal justice.

Seth Stevenson Doesn’t Understand Jury Duty

In 1998, a young Slate reporter serving jury duty followed the law. He listened to what the judge told him about accomplice liability, and even though he didn’t like it, he correctly applied it to the facts and returned a conviction. Now that reporter, Seth Stevenson, feels bad for the defendant he convicted and wrote a long piece about it.

Stevenson Doesn’t Understand How Juries Work

Throughout the story, Stevenson tries to tell himself that he is not responsible for the lengthy sentence the accomplice is serving. He says that he was boxed in by the judge’s instruction, pressured along by the other jurors, etc. In his heart, however, Stevenson feels that he is responsible, because he voted to convict. Stevenson is right to think that he is responsible, he just doesn’t understand why. Stevenson should not misunderstand anything because, as he points out, he is a veteran reporter who has covered many trials. But he never seems to have learned the role of the jury. Nor does he understand basic facts about the way our government works and how they apply to his situation. Let me explain.

The role of the prosecutor is to present evidence proving a defendant’s guilt beyond a reasonable doubt. The role of the jury is to decide what the facts are. In other words, the jury must decide if the prosecutor proved that the crime happened. The legislature decides what the law is. The role of the judge is to determine what law applies to the case. The judge explains the law to the jurors, who take an oath to follow the law. When a defendant is convicted, the judge must decide what sentence the law requires.

Stevenson is responsible for the sentence given to his defendant, but not in the way that he thinks. He thinks that he is responsible as a juror who voted to convict. As anyone with even a passing familiarity with the courts should know, this is not the case. Juries are specifically instructed not to consider punishment. That’s because, as noted above, their role is only to decide what happened. The judge then gets to decide the sentence. Defendants should not be acquitted because jurors don’t want them to face stiff consequences. Nor should they be convicted because jurors don’t like them, and want them to pay for being a bad person. Yet Stevenson continually falls into this trap. He says he was “searching for some way to grant him [the defendant] mercy.” Another juror said Stevenson “wanted to give [defendant] a break.” This is not a juror’s job, it’s the judge’s job. And ultimately, the legislature must decide what kind of breaks are available and to whom.

That’s where responsibility lies. Stevenson, and all other DC residents, voted on the laws that applied on the night of the crime. Stevenson’s representatives approved the sentence range that the defendant faced. Crucially, the legislature approved the accomplice liability laws that Stevenson disagrees with. The judge applied them. Stevenson, as well as the rest of us, are therefore responsible for the application of laws that we approve.  

You Can’t Pick and Choose the Laws to Follow

Stevenson does not agree with the laws regarding accomplice liability. He’s not alone. Appellate courts also disagree with the doctrine of natural and probable consequences. That’s led to some big changes here in California. Nevertheless, it was the state of the law at the time of Stevenson’s trial. His disagreement with the law doesn’t mean he can ignore it. This may sound basic, but in a democracy we agree to follow laws that we disagree with. A senator can vote to legalize bazookas, but until the law changes, he cannot own one. Similarly, jurors may disagree with laws regarding accomplice liability, but they must apply those laws until they are changed.

This is something that Stevenson, and many others, don’t seem to agree with. I’ve met jurors who voice similar opinions. They think that they should only have to follow laws that they agree with, because their conscience is the ultimate law. This has the patina of reasonableness, but anyone who thinks seriously about it must reject this idea as unworkable. After all, the shooter in Stevenson case could just as easily say that he believes he should be allowed to kill over parking disputes (which he did), and he must be free to follow his conscience. We agree to constraints on our freedom to do things like this because we recognize the benefits that come with constraining the freedom of others to do things like this to us.

Sympathy for the Devil

It always shocks me that it’s the defendant that people feel sympathy for. The victim in this case, an off-duty police officer, had a wife and two children that he was caring for. The children were 3 and 4 months old at the time of the officer’s death. The defendant, who was 17, had a son that he was not caring for. Immediately before the murder, he was sitting on a stoop getting high with a gun. The contrast between these two men could not be more sharp. Yet part of me wonders whether Stevenson would feel as guilty for the victim after an acquittal as he does for the defendant after a conviction.  

Stevenson needs a civics lesson, that much seems pretty clear, but that doesn’t mean he is bad person. It is natural to feel sympathy for others, crucial even. And he had to sit and see the defendant, face to face, in court for days. He had to discuss the defendants fate, think about his life, imagine the consequences for the defendant. These are things Stevenson did not have to do for the victim. The murder victim’s chair is empty. He doesn’t have to sit and look at the widow, the infant child, the four year old that were left behind. He doesn’t have to debate what is fair for them. So Stevenson, and too many others, let the victim remain in the grave, and direct all their sympathy to defendants. That’s what bothers me.

What Actually Happened

Judge for yourself whether the defendant did something wrong. The accomplice was hanging out, drinking, and smoking weed on a porch. It was 10 p.m. on a Saturday night. The accomplice was not with his infant child, even though he himself was only 17. The principal got into an argument with two men who had double-parked. The principal told the accomplice that he wanted to “‘smash’ the dudes.” The accomplice took his gun. A third man waited in the car as a getaway driver. The principal and accomplice stood at the top of a road and fired down at two men. We don’t know who shot, but Stevenson assumes the accomplice did not. After the shooting, all the men returned to the car together and drove off. No one reported the crime to the police. The accomplice and the driver eventually fled the state to avoid apprehension. Stevenson does not specifically say, but it appears that the accomplice ditched his gun. Another key fact that Stevenson will not say, but does allude to, is that the accomplice was heavily involved in prison violence after his incarceration. He was so dangerous that a succession of wardens at different institutions deemed the accomplice to dangerous to meet Stevenson face to face, and the accomplice was stabbed 10 times in custody, for reasons that Stevenson never shares.

The System Isn’t Racist

Stevenson also casually mentions that the system is racist. He describes the criminal justice system “as an enormous machine – one designed to convey young black men into prisons and keep them there.” His defendant was “another shit-out-of-luck black kid from Northeast who’d made some bad decisions.” Who designed the system? Some mysterious cabal of racists in a dark room with a flowchart and a plan to discriminate against black people? The mayor at the time of the crime, Marion Berry, was black, like every mayor of DC since the creation of the office. The police chief in 1998 was black. The US attorney (the prosecutor’s boss) was black. African Americans have been the city’s largest ethnic group since the 1950s. The defendants were both black and so were both victims. Stevenson casually charges these people with a massive conspiracy against their own self-interest. There is no such conspiracy. The system isn’t racist.

What Jurors Like Seth Stevenson Should Know

You have to follow the law. For two reasons. First, that’s the way democracy works: we follow the law even when we disagree with it. Second, you take an oath to follow the law at the beginning of jury duty. Failing to follow the law is also breaking your solemn promise.

Leave sentencing to the judge. That’s their most important duty, after ensuring that the trial process is legally correct. Leave the setting of punishments to the legislature. Stevenson’s main problem seems to be that his defendant got a harsh sentence. Instead of putting the blame on the jury, who just did their job, he should blame the legislature. They made the decision, not him, about how long to incarcerate a cop-killing accomplice.