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.

Frances Choy Was Not Exonerated

Frances Choy confessed at least three times to murdering her parents. An accomplice also told the police that she was guilty. Forensic evidence tied her to the crime. Yet the New York Times published a story painting her as a victim of a wrongful conviction. Buzzfeed News wrote that Frances Choy was “exonerated.” So does Boston.com. The Boston College Chronicle described her as “cleared.” The Milford Daily news headline is “The Truth Has Been Revealed.” What happened?

The Facts

In April of 2003, the Frances Choy was a high school senior living with her parents and her nephew, Kenneth Choy. (Choy v. Com. (2010) 456 Mass. 146.) Early one morning she called 911 to report a fire in her home. Firefighters arrived and rescued Frances and Kenneth Choy. Frances did not appear upset and displayed no visible signs of injury. Firefighters went back in the house to rescue Frances Choy’s parents. They were hospitalized and each died that day as a result of smoke inhalation and burns. Expert testimony from Sergeant Jeanne Stewart, a State police fire investigator, indicated that the fire was set intentionally and appeared to be designed to spread toward the parent’s bedroom. Additionally, fire investigators found gasoline throughout the house and on the defendant’s sweatpants.

Frances Choy confessed to the crime to several different people. A State police sergeant testified that Choy told him that she resented her parents because they prevented her from spending time with her boy friend, assigned her extensive chores, and planned to force her to live at home when she entered college. Additionally, she told the officer that she believed she was the beneficiary of a life insurance policy purchased by her parents. Another police officer testified that on two occasions the defendant admitted that she planned the fire and placed containers of gasoline throughout the house, but on both occasions she immediately retracted her statement.

Kenneth Choy also admitted that Frances was guilty. Police found handwritten notes by Kenneth Choy in his bedroom after the fire. They contained a step-by-step checklist on how to set the house of fire. He spoke to the police as well. He told police that he made the notes at the defendant’s request as part of a joint plan to set fire to their home.

The Conviction and Appeals

Frances Choy was tried twice; both trials ended in hung juries. She was tried a third time an convicted of murder and arson charges in 2011. Kenneth Choi was tried in 2008 and found not guilty. At trial, he claimed that the fire was Frances Choy’s idea.

Ms. Choy continued to appeal her conviction. She hired new lawyers. They hired an expert to testify that there was actually no gasoline on Ms. Choy’s sweatpants, in contrast to a police expert who testified that there was. They found a friend of Kenneth Choy’s who they claimed would testify that Kenneth Choy was more involved than he claimed. In September 2020, a judge vacated the 2011 convictions.

The appeal was vacated on two grounds. First, Frances Choy’s lawyers “uncovered” evidence that Kenneth Choy had worked alone and then blamed Frances Choy. Second, the lawyers uncovered evidence of emails by prosecutors that were racially offensive. They contained pictures of Asian people accompanied by pejorative comments. They also contained jokes about Asian stereotypes. For example, one of the emails compared Kenneth Choy to a character from the movie “Sixteen Candles.”

During her appeal, the prosecutor’s office filed a motion saying he would not prosecute the case further. The New York Times described that decision in this way: “With that motion, Ms. Choy was officially exonerated and freed after 17 years in detention, according to her lawyers” from the Boston College Innocence Program. Incredibly, Ms. Choy, 34, thanked her lawyers, her family and her friends “for always believing in my innocence.”

Police have no other suspects. No was has explained who set the fire, if Frances and Kenneth did not.

Having Your Case Dropped is Not “Exoneration”

When a jury acquits you, they are not finding that you are innocent. The jury simply finds that the evidence did not prove you guilty beyond a reasonable doubt. That’s why the verdict is called a “not guilty” verdict, not an “innocent” verdict. You may still be guilty by clear and convincing evidence even if you are not guilty beyond a reasonable doubt. Acquitted defendants are not innocent.

In this case, the prosecutor’s office declined to try Ms. Choy a fourth time. This is also not a court finding that Ms. Choy is innocent. Prosecutor’s decline to prosecute for many reasons, such as a lack of evidence, the fact that the defendant is serving a long term on another case, or even the fact that staff are not available to prosecute the case. None of these are an innocence finding.

This is Criminal Law 101, but many news outlets consistently make this mistake. It’s much worse when lawyers do this. Ms. Choy’s lawyers, who are law professors, know the difference between “not guilty” and “innocent.” Yet they still went around the national media puffing themselves up by claiming that this was an exoneration. It wasn’t.

Misconduct Unrelated to a Case Should Not Be Grounds For Overturning the Case

Prosecutors should not send racist emails about their cases. There’s no excuse for that. The prosecutors who did that in Frances Choy’s case were out of line and should have faced consequences. Those consequences can and should include reprimands at work and even from the Massachusetts State Bar. We should stand by our principles that the fair administration of justice means that people in the justice system should be accountable for their misconduct.

But we need to remember an important fact. None of the misconduct by prosecutors in this case had any bearing on whether or not Frances Choy was guilty. A racist email is not the same thing as framing someone for murder. A racist joke is not right, but it does not change the strength of the evidence in court. In this case, a judge took what should be a personnel issue, got herself involved, and used it to overturn a jury’s decision. The judge did this even though there was no showing that the emails in this case affected the trial at all. As far as I can tell, no one explained how the emails translated into an unfair trial for Frances Choy. Why would you overturn a jury conviction because of misconduct that didn’t affect the fairness of the trial?

Imagine that you were a relative of Frances Choy’s parents. Imagine that you were someone that loved Frances Choy’s parents. Their names were Anne and Jimmy. They burned to death. You would want justice. You would want the person that burned them to be held accountable. You learn that the two teenagers are the only suspects, that one has confessed several times, and that the other had notes with arson instructions written on them. You watch as the prosecutors work hard, over the course of three trials, and eventually secure a conviction.

Then, a judge comes along, 17 years after the crimes, and decides to punish the prosecutor’s office for their racist emails, by robbing you of the justice you waited for. How is that fair to you? How is that fair to any one of us that want Anne and Jimmy’s death to mean something?

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.

Michelle Alexander’s Thesis

On page 4 of The New Jim Crow, Michelle Alexander argues that “mass incarceration in the United States had, in fact, emerged as a stunningly comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow.”  She “argues that mass incarceration is, metaphorically, the New Jim Crow.”  (Id. at p. 11.)  She describes “mass incarceration as a ‘racial caste system'” consisting of “the larger web of laws, rules, policies, and customs that control those labeled criminals both in and out of prison.”  (Id. at p. 12-13.) Here’s the way people took it:

Bad Statistics About Bad Things

Critics of policing and mass incarceration make a basic statistical mistake.  Men represent less than half the population of the country but over 90% of those incarcerated.  But no one says the system is sexist.  That is because men commit more crime.  Comparing population numbers to incarceration rates gives a false picture.  Crime rates should be compared to incarceration rates.

Why are groups imprisoned at higher rates than their representation in the population?  The first question must be whether these groups are doing things that get you imprisoned at higher rates than their representation in the population.  Similarly situated groups can be compared. Groups that are not similarly situated cannot be compared. In America today, ethnic and racial groups are not similarly situated. There are many reasons for this, including the systemic racism of the recent past. The Jim Crow laws did not predestine anyone for a life of crime, but they didn’t help either. And there are many more reasons for ethnic and racial difference that are worth knowing. The rich and the poor are not similarly situated. I’ve read that the most predictive factor for criminality is age, then sex. Social scientists try to control for variables like relative crime rates. We should do the same, even though it is a difficult conversation to have.

Unfortunately, for many, the analysis goes something like this: look at the percentage of the population that belongs to the group, look at that group’s representation in prison, and draw a conclusion. Social scientists know better. The media should know better, and so should we.

Here’s how Crime and Consequences describes the problem:

One thing we do not need is the exaggeration of the prejudice problem created by all the bleating about “disparities” in statistics based on the Fallacy of the Irrelevant Denominator. Comparisons of the demographics of Statistic X with the general population are irrelevant if offending rates are not uniform across the demographic groups in question, which they rarely are. Do the police ticket more men than women for speeding? Of course they do, because a greater percentage of men speed. That statistic does not establish or even indicate discriminatory enforcement unless one establishes that speeding men are more likely to be ticketed than speeding women. The general population is an irrelevant denominator. The people who commit the offense in question make up the relevant denominator. And so it is for criminal justice statistics generally.