Is there “systemic racism” among police and in the criminal justice system?

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.

New York City police officers embrace demonstrators during a protest June 2, 2020, following the death of George Floyd, an unarmed African American man whose neck was pinned to the ground by police for more than eight minutes before he was taken to the hospital. (CNS photo/Jeenah Moon, Reuters)

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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About Gerard V. Bradley 1 Article
Gerard V. Bradley is a native of Brooklyn New York who graduated Summa cum laude from Cornell Law School. He has been Professor of Law at Notre Dame since 1992, where for 24 years he edited, with John Finnis, The American Journal of Jurisprudence. Bradley was for many years President of the Fellowship of Catholic Scholars.

17 Comments

  1. I have never read a more informative and truthful piece on police and community interactions. Thank you Mr. Bradley.

  2. “Sytemic racism” only exists in regimes with deliberately racial policies such as Nazi Germant, Apartheid South Africa, Iran and Saudi Arabia (the latter of whom consign all non-Muslims and non-males to second class citizenship).

  3. This was the Fox News headline “Women handcuffed, cited while praying outside NYC Planned Parenthood the same week of George Floyd protests.”

    You get the deranged even in Church hierarchy, the mayor and governor and their political ideology, sets the climate that law enforcement follow.

    One would think there are no souls to save, priest need to work at their vocation serving the King of kings and His people, not their personal liberal interests or photo media opportunities.

  4. If you expect something to happen—if someone or something suggests to you a specific outcome—your expectations of that outcome play a major role in its occurrence. The expectation or suggestion alone often unconsciously changes your behavior and your responses to help bring into reality the outcome you are expecting (Polly Campbell Self Fulfilling Prophecies in Psychology Today). Political orators the great ones Adolf Benito FDR knew this well. MN AG Keith Ellison likely self convinced there is an underlying effusive racism in America [if not inherently in Man] is propagating exactly what Law Prof Gerard Bradley skillfully delineates. An endemic structural blight the phraseology adopted by Bradley is synonymous to what is currently coined as systemic. Structural, built into the system as a feature. Bradley attacks that premise citing facts, different opinions. The critical issue becomes, if it’s endemic many believing differently holding just opinions then the frightful reality is they’re unaware of their racism. Again I refer to the Matrix analogy. “If one is in a systematically deceiving world, how does one attain the ability to make reference to that world” (Carolyn Korsmeyer Seeing Believing Touching Truth in The Matrix and Philosophy). What Korsmeyer’s insight strongly suggests is that there are persons like AG Ellison perhaps Gov Walz who somehow are not racist – and who are illogically self convinced virtually all [they must presume there are other if not rare elitist cognoscenti like themselves] are racist even if only unwittingly. It’s consistent with sweeping suggestions of collective ‘White’ guilt for the plight of minorities and all injustice perceived or real. That is a most dangerous and immoral political premise that will lead to the worst imaginable injustice and persecution. Certainly it’s a contradiction to the Gospel of Christ in reference to judgment and responsibility.

  5. I might add a 6th point to Mr. Bradley’s well argued points. There is no credible evidence that Flyod’s death was motivated by racism. The claims otherwise are founded on a racist ideology. Yes, there is racism but it should not be such a broad brush as to include all cases of black victims.

    • How true, especially in light of the new evidence coming out that sheds light on a troubled past between these two men.

      • The person who said that there was a troubled past between them has now withdrawn the claim, saying he had confused two people.

  6. “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.”

    I have a hard time believing this. The restraint had to have been a necessary, if not sufficient, cause of 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.””

    Without “mens rea” (guilty mind) there can’t be a crime. This is a big problem in our criminal INJUSTICE system. There can be no murder (felony or otherwise) without the proper immoral intention.

    As far as I understand it, recklessly means that a person acts with uncertain knowledge that their action may be criminal. For instance, shooting someone in public in “self-defense” as he reaches in his coat to pull something that the person couldn’t see, yet, out.

    In this case assuming that the officer could clearly hear George Floyd, then he would have known that his actions were causing this legally innocent person to have problems breathing, which, of course, can eventually lead to death. What reason outside of murder would there be to hold someone in such a position for such a time?

    • “In this case assuming that the officer could clearly hear George Floyd, then he would have known that his actions were causing this legally innocent person to have problems breathing, which, of course, can eventually lead to death. What reason outside of murder would there be to hold someone in such a position for such a time?”

      The breathing difficulty will be discussed at the trial. Afaik, he was being restrained outside the vehicle while they were waiting for paramedics, after being taken out of the vehicle, supposedly resisting staying in the vehicle. If he is a flight risk or a physical threat, how would you have restrained him in place until the paramedics arrived?

      • Handcuffs and physical restraint works just fine. Two officers should be plenty. We are talking about four police officers in this situation.

        I checked out what actually was alleged to have happen. They should have either done as I have mentioned above, or forced him into the car.

        I have problems taking all of this at face value with no (hopefully not rash) suspicions. The suspect complains of not being able to breath BEFORE (while standing) he VOLUNTARILY gets to the ground. The police officer on his back refuses to get up, after Floyd mentions breathing problems in this position.

  7. I’m Hispanic. I went to the emergency room for what turned out to be Chronic Pancreatitis. The Doctor denied me medical attention and refused to call my own Doctor, on the grounds it was the 4th of July and my Doctor was enjoying the day with his family. The Doctor instead called 911 claiming her life was in danger, that I was trying to kill her. The Police came and for no reason gave me a severe beating that caused many injuries. I was arrested with false charges and dragged thru our Court System. It was a fixed court. Everything was being and was planned. I was given a trick plea bargain. I took it in order to end the whole traumatic experience. The judge wanted to give me 4 years in prison. I got 1 year probation and a 100.00 fine. The post traumatic experience continues. When I see a Police Officer I become destroyed within my self. Tell me there is no racism! I’ve heard it time and again. If there is no racism, can someone explain why this happens only to Hispanics in my area.

  8. So the charging of Chauvin is ‘proof’ that the system is not racist?

    All it took was a video record.

    Chauvin knew he was being recorded, and still stayed on the man’s neck. That’s how confident he was that police can do whatever they want, without any risk of being held accountable. If he did this while being recorded, imagine what happens at other times.

    Him being charged no more disproves the charge of ‘systemic racism’ than a counterfeit note proves that all notes are counterfeit. If you want to form an opinion on the basis of all the data instead of cherry-picking, just look at the statistics on deaths caused by police or otherwise in custody, and see if the percentage of black deaths compares to their percentage in the general population.

    Oh? You say those stats are not readily available? I wonder why? Perhaps someone might like to do the research, but that would only mark him out as a ‘left-leaning political activist masquerading as an academic’. There are some things which conservatives just will not concede, and the truth about systemic racism is one of them.

    • “Chauvin knew he was being recorded, and still stayed on the man’s neck. That’s how confident he was that police can do whatever they want, without any risk of being held accountable.”

      Possibly. But that isn’t a matter of race.

      “If you want to form an opinion on the basis of all the data instead of cherry-picking, just look at the statistics on deaths caused by police or otherwise in custody,and see if the percentage of black deaths compares to their percentage in the general population.”

      Actually, the way to form an opinion on the basis of all data would be to see if the percentage of black deaths compares to their percentage in the number of people taken into police custody.

      ” There are some things which conservatives just will not concede, and the truth about systemic racism is one of them.”

      There are some things which left-wingers just will not concede, and the truth that there is no systemic racism is one of them.

  9. This essay is from an apologist and spinmeister of the police blinded by white privilege, not from victims of police brutality and the systemic injustice of which it is a part of.

  10. Handcuffs and physical restraint works just fine. Two officers should be plenty. We are talking about four police officers in this situation.

    I checked out what actually was alleged to have happen. They should have either done as I have mentioned above, or forced him into the car.

    I have problems taking all of this at face value with no (hopefully not rash) suspicions. The suspect complains of not being able to breath BEFORE (while standing) he VOLUNTARILY gets to the ground. The police officer on his back refuses to get up, after Floyd mentions breathing problems in this position.

  11. When police can illegally bust into the wrong person’s home, shoot them up because of a ‘struggle’ (ie, screaming because armed men burst into your home at night), and then not face prosecution, I am amazed that ‘lovers of liberty’ can write, and appreciate propaganda garbage like this, especially on a catholic website.
    “Oh no, who will want to join the police if we keep on bringing up how they can literally get away with murder? Think of those poor, highly-paid with great benefits, cops!”
    This site always peddles in this white victimhood crap and it gets so stale and tired.

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