Systemic Racism and the Guilty Defendant

I stumbled across this question on Reddit. There were a bunch of interesting answers. Most of them are very practical. But something different occurred to me. Why is this lawyer helping this defendant at all?

Maybe this person is a public defender who has to represent the client whether they like it or not; they have no choice in the matter. That’s the most likely answer. But I’d like to make two assumptions. First, assume the client is guilty. Otherwise, why would the lawyer mention that no matter what she does in court they will lose? Second, assume that the lawyer has a choice. She can represent this defendant or dump him. Does she have an ethical duty not to help a guilty client get away with something?

I think that regular people intuitively understand that we should not do bad things ourselves nor should we help others do bad things. People also understand that the job of criminal defense attorney involves helping people get away with bad things.

Criminal defense lawyers often respond that their job is to make sure the system treats their client fairly. Or they will say that their job is to protect the constitutional rights of their clients against the government. And those are fine slogans, but this Reddit post illustrates an uncomfortable truth about the job. Most of the time, in fact, virtually all of the time, the client is guilty and is receiving fair treatment. In those situations, what is the role of the criminal defense lawyer?

If you ask the criminal defendant, the role of the lawyer is to get the defendant off, or at least get him the lightest possible punishment. When plea bargaining fails, and a case goes to trial, the role of the defense lawyer is to win the trial. And that means secure a verdict of not guilty, or at least a hung jury. Here’s an example from the Reddit comments:

There are a lot of interesting lines to parse in this candid post. Two lines really struck me. First, the “whole idea is to get the best outcome that is possible in the situation.” This is different than “defend the constitution” or “act as a check on the government.” And although it’s not as noble, I think it is a more accurate description of the “whole idea” of criminal defense. Second, the commenter says, “if he wants to go to trial, you’re ready to do so and will fight hard for him.” Here again we have straight talk about how the system works. The lawyer will try hard to get the client off if that’s what the client wants him to do. Notice that he didn’t say, “I will withdraw if you insist on a trial because I cannot represent a guilty defendant.” He didn’t say, “you should admit what you did and take responsibility for it, including whatever punishment the legislature has prescribed.” I know this will sound naive to some readers. But it’s the tension between the client and the lawyer’s ethics that I find interesting.

There may be a rare defense attorney who never represents a guilty client. But that person is one in a million. I have never, in my entire career, charged someone with a crime when I’m not sure that they did it, and that I can prove it. Neither has anyone I know. The court system today is full of guilty people either trying to get a low offer or trying to trick a jury. Here’s another candid comment from the same post:

Maybe it’s naive, but I don’t think it’s right to go to trial, launch a hail mary, and play for a mistrial. This dynamic is well illustrated by the Reddit post. It seems like the person posting is a defense lawyer. It seems like the defendant is guilty. I’m guessing the defendant is asking the lawyer if he can get the charges dropped or reduced because of systemic racism, or something. It seems like the lawyer is saying no. The lawyer is recommending that the defendant take a 10 year offer. This makes sense because of the defendant’s record and because of the People’s ability to prove the case. Nevertheless, the defendant won’t go for it. He wants to have a trial. And to put a fine point on it, in that trial, he wants his lawyer to get him off. Even though he is guilty.

What about systemic racism?

No one can really agree what system racism is. Nevertheless, many loud voices have recently claimed that there is system racism in our justice system.

If we keep telling people that systemic racism exists, they will continue to blame it, rather than themselves, for their criminal conduct. This undermines the whole point of the system, which is to educate criminal defendants. Specifically, it is to teach them that criminal conduct will not benefit them. How can they learn this lesson if they believe that systemic racism, rather than their own choices, are responsible for crime? Here’s another comment from the same post:

That’s the sinister undertone to the Reddit post. Whether systemic racism exists or not – I think it doesn’t – it works as an excuse. It undermines the fundamental role of the justice system: holding someone accountable. Because everyone understands what this Reddit defendant understands. If systemic racism is to blame, you aren’t to blame.

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.

The System is Broken? There Is No System

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

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

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

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

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

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

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

Notes

Here’s another shirt from the same site:

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