Why We Tolerate Biased Policing
January 22, 2015
Jan 22, 2015
8 Min read time
Tragically, it may be unrealistic to expect Americans—including police—to ignore race.
Image: Justin Norman
The recent police killings in Staten Island and Ferguson, Missouri are hardly unprecedented. Sadly, they are not even surprising: such abuses are a recurrent theme of American law enforcement, a toxic byproduct of a society saturated with subtle racism and military-style policing underwritten by a tacit mandate to quarantine potentially disruptive poor people. Demands to root out and punish biased officers are understandable, but real improvement will require comprehensive institutional reform.
Every racially charged incident may not involve bias, but the frequency with which police brutality involves black victims suggests that many of them do. And in some cases there is additional evidence of prejudice. For instance, Ferguson police officer Darren Wilson described his victim, Michael Brown, as a “demon” who seemed unfazed by mere bullets. This sort of dehumanization is a consistent theme: in 1991 Los Angeles police officer Powell described Rodney King as a monster with super strength who made animal noises after being struck repeatedly with police batons. Shortly before participating the King beating, Officer Lawrence Powell described a black family as “right out of Gorillas in the Mist”; at trial he said King acted like an animal.
The conventional response after instances of police brutality is a call for individual accountability: civil rights protests demand that the officers involved be disciplined and in the worst cases, prosecuted. But accountability is rare. The same pervasive racism underlying the abuses also leads grand juries to sympathize with the officers. Meanwhile close and co-dependent relationships among police and prosecutors often ensure that the strongest case for punishment is not presented. And even when officers are held responsible by civil lawsuits, police departments and unions almost invariably indemnify them.
Those who sympathize with police accused of misconduct insist that policing is a difficult and dangerous job, in which a split-second judgment can save or end an officer’s life. The subtext is that under such pressure cooker conditions, it is unfair to expect anyone to ignore race or control their racial biases. The law is ambiguous in such cases, and the impediments to proving discriminatory motivation often insurmountable. It is not clear to what extent the law prohibits the ad hoc and possibly inadvertent consideration of race in decisions where subjective individual discretion is unavoidable. Constitutional equality mandates barring “racial classification” presuppose a degree of reflection and deliberation that these heat-of-the-moment judgments lack. In short, the legal framework is not well equipped to evaluate the claim of racial bias that underlies the outrage surrounding these cases. Most police brutality cases are prosecuted—if at all—as race-neutral claims of false arrest or use of excessive force.
Thus cases of police violence are frequently adjudicated less by the courts than by the public. When police—to whom we delegate the state’s monopoly on legitimate violence—fail to act with good judgment, many people, observing these present and historic trends, conclude that they are sadistic racists. But most officers—including most of those responsible for unjustified killings and beatings—are probably neither the selfless heroes evoked by the Patrolmen’s Benevolent Association and primetime television dramas, nor the villains that haunt the nightmares of civil rights activists. No doubt some are racists, and worse yet, racial bias is inherent in their activity; it is a product of the racially divided society in which they work.
• • •
Let’s imagine four police officers: Hercules, Harry, Herbert, and Hateful.
Hercules is the kind of cop featured in simplistic TV shows. Dedicated to protection and service, he faces danger with calm and steely resolve. He sees the worst of humanity, but assumes the best of every citizen, regardless of race, wealth, or creed. He can tell the difference between a hardened criminal and a kid who has lost his way. He’s an expert marksman but draws his firearm only as a last resort. He can still see the face of everyone he has had to kill in the line of duty. He reads every suspect his Miranda warning and does everything by the book.
Harry is a zealot who is fed up with bureaucrats and politicians who don’t understand the mean streets he walks every day. He sees himself as a lone bulwark against disorder and vice. He gets the job done, bringing down the baddies one way or another, and he doesn’t have much use or respect for rules. He will conduct a warrantless search based on a hunch and beat a confession out of a suspect he knows is guilty, He won’t hesitate to shoot a punk who has it coming. He is not a racist, but he is a realist: he knows that because black criminals usually victimize law-abiding black people, blacks will suffer most from a soft approach to law enforcement.
Tragically, it may be unrealistic to expect Americans—including police—to ignore race.
Herbert is a career officer who has never drawn his gun in twenty years of service. He long ago lost any sense of his job as a mission. He has occasional moments of heroism and insight, but, for the most part, he is an ordinary civil servant doing a job. He is counting the months until he can retire with a full pension. He usually tries to do a good job, but his primary concern is his own safety. He avoids conflict because conflict is dangerous and strenuous. But he would shoot first if he thought he was in real danger: after all, better tried by twelve than carried by six.
Hateful is a bully, a sadist, and a racist. He was drawn to law enforcement because he likes the power that comes with a badge and gun and because he enjoys pushing racial minorities around. He demands not just respect but deference. He has a violent temper. His fellow officers consider him a loose cannon but circle the wagons to protect him when he is accused of misconduct. As a consequence he has been exonerated in each of several internal affairs investigations.
Given the authority and power we delegate to them, it is natural to demand that all police be like Hercules. When an officer shoots or bludgeons an unarmed black man, it is reasonable to worry that he is Hateful. But the juries charged with evaluating these incidents might imagine police accused of misconduct are like Harry: misunderstood guardians of the peace doing tough jobs. Movies and television lionizing maverick police can influence even seasoned jurists. For instance, when asked to opine on the legality of torturing a suspect to reveal the location of a ticking bomb, Supreme Court Justice Antonin Scalia evoked 24’s Jack Bauer, who routinely saves Los Angeles from dire threats by using unauthorized policing methods. “Are you going to convict Jack Bauer?” Scalia asked. “Is any jury going to convict Jack Bauer? I don’t think so.”
In fact, most officers are probably not Hercules, Hateful or Harry. They are probably like Herbert—people of modest talents and typical prejudices doing a job that occasionally requires a level of judgment, skill, and cool-headedness that is simply beyond them. Recall that officer Powell failed basic baton training before clubbing Rodney King. Bay Area Rapid Transit officer Johannes Mehserle had less than two years of experience when, according to his testimony, he mistook his service revolver for a taser and shot and killed Oscar Grant during what should have been a routine arrest.
While individual prejudice and ineptitude play a role, the main reason so many victims of police abuses are black is that police patrols are concentrated in minority neighborhoods. That is not the responsibly of individual police officers—it is the responsibility of the public officials who set policy for law enforcement and, ultimately, of the citizens who endorse that policy. It shouldn’t be surprising that citizens who endorse a policy of racial quarantine also sympathize with police who enforce that policy, refusing to charge or convict them in brutality cases.
Tragically, it may be unrealistic to expect Americans—including police—to ignore race, especially when forced to make quick assessments with high stakes. If there is one undeniable theme in the voluminous literature on implicit and unconscious bias, it is that bias is extremely widespread, even among people of good will. And it is not only unconscious bias at work. There is little doubt that many people are aware of their racial biases and believe them to be justified. Police who work in poor, high-crime neighborhoods of color have countless experiences that reinforce racial prejudice. Forced into an antagonistic relationship with the residents of minority communities, police must confront a largely justified resentment, but one for which they, as individuals, are not primarily to blame and which they can do little to relieve. As James Baldwin wrote of a policeman in the Harlem of 1960, “He is facing, daily and nightly, people who would gladly see him dead, and he knows it. . . . there are few things under heaven more unnerving than the silent, accumulating contempt and hatred of a people.” Compounding the problem, the many police who live in racially exclusive suburbs outside the cities where they work have few if any positive experiences with non-whites to allay their prejudices.
All this is a consequence of the most severe of injustices: the isolation of racial minorities in our society—the most durable legacy of Jim Crow era discrimination. But that is no more the fault of the individual cop on the beat than it is of concerned citizens who take comfort in his actions—until something goes wrong. What Baldwin wrote of police brutality almost sixty years ago is as true today: “It is hard . . . to blame the policeman . . . for being such a perfect representative of the people he serves.”
Given that many police officers will consider race when approaching people suspected of wrongdoing—maybe the best we can hope for is to limit the injury that these encounters cause. Here perhaps we can learn from the conservative attack on public unions—of which police unions are among the most powerful—and demand reforms that will make it easier to fire undisciplined or incompetent officers before they kill or maim. After all, the arguments against the inordinate power of police unions are mostly identical to those against the conservative’s bête noir, teacher’s unions. The difference is that incompetent or bigoted teachers leave citizens ignorant while incompetent or bigoted cops leave them dead. Regular monitoring can help to identify police facing an excessive number of complaints, and institutional reform can allow us to deny such officers a warrant to do violence in the name of the state.
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January 22, 2015
8 Min read time