Minnesota Attorney General Keith Ellison sounded a sobering note when he announced, on June 3rd, a new set of criminal charges in the death of George Floyd. (Governor Tim Walz appointed Ellison to handle the case, superseding the ordinary jurisdiction of Hennepin County prosecutors.) Ellison charged former Minneapolis police officer Derek Chauvin with second-degree murder, evidently intending to prove that Chauvin caused Floyd’s death while committing another felony, namely, simple assault on Floyd. The three officers who accompanied Chauvin were charged as accessories to what American criminal law from time out of mind has called a “felony murder.”
Ellison’s comments included ample portions of rhetoric. But he quite admirably stated that he, Ellison, “took no joy in this.” “I feel a tremendous sense of duty and responsibility. He accurately stated that “[t]rying this case will not be an easy thing. Winning a conviction will be hard.”
Indeed it will. It almost always is. Convincing any twelve unbiased jurors beyond a reasonable doubt that anyone has committed murder is a hard thing to do. In this case, moreover, there is likely to be a lively defense argument that, although Chauvin holding Floyd’s neck to the ground for nearly nine minutes was inexcusable and a crime, the autopsy results do not show that Chauvin’s acts, as opposed to some co-morbidity factor, really caused Floyd’s death. But the most daunting aspect of the case for Ellison may be what the lawyers call “state of mind.” There is no possibility that the state could prove Chauvin intended to kill George Floyd. It is even unlikely that Ellison will be able to prove that Chauvin (perhaps aided by other officers) “recklessly” killed George Floyd. This difficulty explains why Ellison decided to charge Chauvin with felony murder, for it requires only that Chauvin “caused” Floyd’s death during the course of committing another felony. No “state of mind” – “reckless” or otherwise – is needed.
One headwind that Ellison will not face, however, is the one prosecutors of police misconduct often face, which is that one or more of twelve people randomly selected from the community might implicitly translate his or her residual support for law enforcement into an extra burden of proof. (Remember that it takes only one unconvinced juror to block a conviction.) On the contrary: it surely appears from all the audible commentary that almost no one defends Chauvin’s actions.
Why then is the nation in such tumult? Because, the demonstrators say, the “system” is honeycombed with racism. They say that it is rigged so that white cops can – and do – target African-American men (mainly) with excessive and often deadly force with impunity. But in Floyd’s case of police use of excessive force, the “system” is obviously working. There was plenty of video of what happened. The city immediately fired all four cops. The government swiftly brought murder charges against the main offender, and soon charged the other three officers present. No doubt the state will spare no resource in aid of Ellison’s efforts to secure convictions. It is already apparent, too, that the “blue wall” of silence has shattered; one or more of the three accused accomplice officers will cooperate with the prosecution. We certainly have ample reason to believe that Derek Chauvin will be vigorously prosecuted.
The demonstrators say that the whole criminal justice system is infected with racism; it is an “endemic” “structural” blight that is not belied by the good faith of Tim Walz or Keith Ellison in the case of George Floyd. No doubt there have been times (all-too-recently, in many places), where charges of systemic racism in criminal justice were not only plausible, but true. But now?
Andrew McCarthy and Heather McDonald have recently written that these charges of rampant police attacks upon unarmed African-Americans are vastly overstated. When it comes to police use of lethal force, MacDonald make a very strong case that the accusation of “systemic police racism” is a “myth.” (Of course, to agree with MacDonald is not to deny that in George Floyd’s or in any other particular case, racism played a role.) The truth is that, by and large (“systemically,” if you will), police commanders across the country have at last produced patrol guides and other regulations to minimize the use of force. Prosecutors have finally succeeded in holding officers who use excessive force criminally accountable. Commanders and prosecutors should, without exception and in every case to the fullest extent of the law, hold police officers who use excessive force responsible, paying no heed whatsoever for mere human respect or headlines, or for placating the loudest voices in the community, whether they are calling for cutting cops a break or for their heads.
I could supply many anecdotes from my own experiences which support the judgment that now the “systemic” racism charge about police use of force rings hollow. I could start with my years in the Trial Division of the Manhattan District Attorney’s Office, where I saw conscientious colleagues prosecute police misconduct vigorously, with the full support of the District Attorney (Robert Morgenthau), and corresponding support all the way down through the ranks of his bureau chiefs. I could supply anecdotes, too, from my decades of teaching criminal justice and in supervising my law school’s public defender externship. But this is not a matter to be settled by anecdotes. It is rather worth the effort to look at, and to be guided by, the hard, cold data (relied upon by McCarthy and MacDonald, for instance) about police use of force in America and how race factors into it. Those facts undermine the “systemic racism” claims now serving as tinder in our cities.
Of course, the mass turmoil today owes very much to larger grievances about “The System,” the Big One, the whole political and economic set-up. As to claims that it is stacked against African-Americans, in innumerable ways large and small, some obvious and others obscured but nonetheless insidious, I offer no opinion here. Instead I offer five reasons—among many others—why destroying the reputation of the criminal justice system and of the police as “racist” is a most regrettable tactic in the larger battle over social justice. It is regrettable because branding with broad brush strokes the police and the criminal justice system courts as racist is not only unfair. It hurts the people it is meant to help. African-Americans, particularly those in poorer neighborhoods and in distressed economic straits, are the ones most seriously harmed when indiscriminately calling cops racists is the fashion.
First: the systemic-racism charge makes it much more difficult to do the one thing most likely to alleviate whatever racism there is among officers, which is to hire more black cops. Notwithstanding widespread affirmative action efforts, many police departments (including that in my city, South Bend, Indiana), find it nearly impossible to hire minority officers. In addition to the low pay and hazardous working conditions which the job perennially offers, police forces seeking black recruits now face the added burden of denying what Americans are being told is an obvious truth about the justice system. Police recruiters will have to convince candidates, in other words, that they will not be signing on to work with men and women who wear white robes on their days off. Recruiters will also have to coach candidates on how to respond to their peers who accuse them of being an Uncle Tom. Who can blame any qualified young black man or woman who opts for employment elsewhere?
Second: successful investigation and prosecution of crime often depends upon the voluntary cooperation of neighborhood residents with police and prosecutors. For most violent crimes, the willingness of civilian witnesses to give information to the police is essential to identifying and locating the criminals. Most times, these persons’ testimony is essential to securing convictions. But if the cops are “racists” and the system is, too, why should African-Americans who live in rough neighborhoods help out, especially where one might risk retaliation for doing so?
Third: many cops today will tell you that their work is becoming more unforgiving, not least because they suffer the opprobrium of being part of a “racist” cohort. Cops will tell you, more specifically, of citizens who are increasingly emboldened to lodge complaints of racially motivated misconduct, which are much easier to make than they are to refute. They will tell you of police supervisors and their political superiors who are among the first to throw the street cop under the bus of public outrage, especially where alleged racism is in the mix. These and other factors often combine to convince officers that it pays not to take risks or to engage their work vigorously or to be too active on the streets. But the people who suffer much from passive policing are not those who live in the suburbs or in gentrified city neighborhoods. They are the people who live in poorer and, often, dangerous neighborhoods. These people need energetic and effective policing more than, for example, those who are reading this short essay.
Fourth: where police officers are widely presumed to be racist, they will as a matter of fact labor under a heavy burden as witnesses, affiants, report writers, even as a public presences on the streets: can they be trusted? In cases involving a black accused and white officer testifying truthfully, for example, jurors who have unreflectively accepted the police-are-racist narrative could easily be persuaded that the cop is lying, or at least fudging the truth, to get a conviction. Where such a defendant is acquitted, an injustice is done. Many drug and illegal firearms cases depend entirely upon police officer testimony. Even where the officers testify truthfully, one or more jurors might think that the cops are framing the defendant, be he black, brown, or possessed of another complexion and ethnic or racial background. Why not? After all, that is what cops do, isn’t it? But who loses when drugs and guns rule the streets? It is surely not the fancy folks living in the suburbs.
Police credibility is wrongly undermined by charges of “endemic racism.” Where police credibility is undermined, the capacity of the system to enforce the law is compromised. Where the criminal justice system is compromised, those most in need of effective law enforcement are hurt the most.
Fifth: branding all cops as racist has a tendency to become a self-fulfilling prophecy. The ugly charge may well tend to cause precincts to become more insular, more removed from the communities that they serve, which in turn makes cops in black and brown communities become insensitive to the people whom they are sworn to protect. Many rigorous studies confirm what common sense suggests: the best antidote to racism is exposure to different races, different cultures. Indiscriminately calling cops racist will not increase the chances that any invitation to police officers to get to know the community better, will be accepted.
One stated aim of those protesting George Floyd’s death is to see that justice is done in his case. In this, they will almost certainly succeed, even though the just outcome of Chauvin’s trial might be conviction on less than the top charge lodged by Keith Ellison. The protesters larger aim is to draw attention to the racism that, they say, is a “structural” feature of our criminal justice system. The data if not the anecdotal evidence indicate that what they say is so, is not. Tragically, they seem unaware of the prospect that they could inadvertently call into being much of what they are denouncing on the streets today. I am not suggesting that the protesters are going to cause police or prosecutors to become racists. But the protesters could possibly convince many Americans that that they are right about “structural” racism, that cops really are brutal racists, and that prosecutors are little better. Then, an attributed or presumed racism would indeed become a “structural” feature of the system, with all the ill-effects described above.
This tragic outcome is nothing to wish for, especially if one is African-American.
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