Every time an agent is caught assaulting a black or brown person, I hear the same argument, “It’s just a few bad apples.”
I hear this again after the murder of George Floyd. Sunday, to take an example, the national security adviser Robert C. O’Brien Said, “We have great law enforcement officers, not – not the few bad apples, like the officer [Derek Chauvin] that killed George Floyd. But we have some bad apples that have given the police a bad name. ‘
When asked by CNN’s Jake Tapper if he thought systemic racism was a problem for law enforcement, O’Brien replied, “No, I don’t think there is systemic racism.”
Strangely enough, the people reciting this trope rarely think about the second half of the phrase, “Some bad apples spoil the couple.“But let’s just put that aside.
However you look at it, the American criminal justice system is full of prejudice. As the Radley Balko of Washington Post cataloged, we know that black people are run over nearly twice as often and are searched more often once they have stopped, even though they are less likely to be smuggled; and that unarmed black people are shot by police more than three times as often as unarmed whites.
So how do we explain this reality?
Paul Butler is a professor of law in Georgetown, former federal prosecutor and author of the 2017 book Chokehold: Policing Black Men. His work has long focused on the fundamentals of the U.S. criminal justice system and why they continue to reproduce the same results for black Americans. I’ve talked to him about how we got here, why he thinks the criminal justice system works exactly as designed, and why the “few bad apples” argument is complete nonsense.
A slightly edited transcription of our conversation follows.
I would like this conversation to speak as much as possible to people like me – a white person who grew up in a small town in the south – who has no experience of this, whose life has been untouched by threats like this, who may not understand why someone would treat police as occupier and is therefore skeptical about the type of arguments you make.
What do you say to that person?
I’m glad you started there. I saw a convincing example of this on live TV last Saturday that helps to make the point. Ali Velshi of MSNBC reported live from the protest in Minneapolis, and while reporting, he said, “They’re starting to shoot.” Police started firing rubber bullets. And the protesters were completely non-violent. They did nothing provocative and the police just opened fire. And we all see it live on TV.
As he runs away, Velshi shoots in the leg, but keeps reporting. Later, after withdrawing, he sees the police advance again and looks terrified in a way he hadn’t done before. That is the impact of violent police work on African Americans – and black men disproportionately contribute to it.
The purpose of guarding the hood is to prove that the police officer is dominating. That he is the man, regardless of gender, that the officer is in charge, and that everyone else is subordinate. The way that message is conveyed is with fear. Fear of your physical safety. In my book I called this “folterlite” Chokehold, and some people thought it was extreme. But I was actually thinking about a specific thing in international human rights law and a specific evolution of torture, from the terrible pulling of your fingernails to the way it works now – that is to make people feel humiliated and terrified that anything could happen at any time.
A kind of psychological warfare –
Exactly. This attitude is present in many police officers working in color communities and it determines the dynamics between them and the people they should serve. It affects us all. I went to a nice university and law degree; I have a good job and I drive a nice car. But every time a police car is behind me, my heart starts to beat fast. Every black man I know has the same story. Because you just never know.
That’s such a vastly different dynamic than most whites have experienced. And for those people, at least many of them, there is a reflexive discharge from it. They will read this as hyperbole or anecdotal, refusing to grapple, in that sense, with the fundamental claim about the role law enforcement plays in black communities.
Let’s think about the Floyd case. Before we get to the murder, let’s think about the arrest. The store owner called the police and said someone had tried to pass on a fake $ 20 bill. The police are responding, and what they do is virtually impossible to imagine this happening to a white person. What they do is approach Mr. Floyd’s car as if he were a violent criminal. They recommend Mr. Floyd and the passengers to leave the car. An officer has his hand on his gun. They have Mr. Floyd put in handcuffs. When he falls to the ground, they leave him on the ground in handcuffs, and then, as the whole world knows, they hold him by the back and knee and legs for 10 minutes until he dies. I just can’t imagine this happening to a white person over a $ 20 bill.
Black and brown people are treated very differently by the police than white people, and it is so endemic that the police cannot help themselves. I thought the most compelling example of that was how differently the CNN reporters in Minneapolis were treated. A white CNN reporter is actually on the same ground and doing the same thing – while the police roll up the black reporter and arrest him, the police go to the white reporter and say, “We want you to move, please,” and he says: ‘Okay.’ But he doesn’t move as far as they would like and they say, “Can you please move something?” And he says, “Certainly.”
What is so revealing about it is that it all happens on national television, at a meeting about excessive violence and racist police work. I could imagine the sergeant getting instructions from the sergeant for the officers during the morning appeal, “Okay, guys, we know we’re guarding this meeting over police brutality and discriminatory enforcement; let’s not be racist, not racist, it is really important that we are not racist today. “And they still can’t help themselves.
You say that we not only have two legal systems, one for whites and one for black and brown people, but we have “opposing” legal systems instead. And the system for black and brown people is not broken – it works exactly as designed. What does that mean?
Part of the evidence that the system was designed this way, and one of the reasons it keeps coming back time and time again, is because much of the behavior that people of color complain about is completely legal. So I don’t think the case against the officers in the Floyd case is a slam-dunk anyway. The defense will be that their use of force was reasonable. And they have to make a case. They are not a good thing since Mr. Floyd was captivated, but what they will say is that he resisted arrest and used reasonable force to subdue him. And of course there comes a time when the reasonableness of that force is quenched by the fact that his body lies limp and immobile on the ground. But until then I think they have an argument that what they were doing was legal.
Otherwise, the power of the police is theoretically unreal. I have a buddy from a police officer who comes to visit my class in criminal justice, and to show how much power he has, he invites my students to drive his car to see what it’s like to drive through the streets of DC patrol. . He plays a game with them called Pick That Car. He tells the student, “Choose a car you want, and I’ll stop it.” So the student will say, “What about that white Camry over there.”
He’s a good cop. He is waiting for a legal reason. But he says he can track any car, and after five minutes or three blocks, the driver will commit some traffic offense, and then by law he has the power to stop the car, to order the driver and passengers to get out of the car. If he has a reasonable suspicion that they may be armed or dangerous, he can touch their bodies, search them, and ask them to search their car. And it is completely legal. That is an example of the extraordinary power that the police have.
And that extraordinary power, that constitutional power, is used more aggressively against black and brown men than against white football mothers.
In a way, that gets to the heart of this. Because the difference here is how the same laws are applied differently to different people. We are not talking about different rules for different people formally enshrined in law. We are talking about the enormous discretion the police have and how, for too many reasons to count, they are applying it unevenly.
That’s exactly right. I know it sounds a bit conspiratorial when I say it’s designed that way, but one of the reasons I think is because it’s so common and so predictable. And in cases like this, lawyers tell the Supreme Court that if you give the police this kind of power, they will use it unfairly against colored people. And we have tons of data that support that. And the court gives discounts that are concerned or say, “We can’t help it.”
So everyone knows how the police will use this power, and indeed they do. That’s why I think so the Ferguson reportwhich is the report that the United States Department of Justice wrote after the Ferguson uprising, and after Michael Brown was murdered, I think this is one of the defining artifacts of our time.
In a hundred years, when people want to know what it was like to live in 2020, the Ferguson report will be one of the things they will look at. It is this great synthesis of data and stories. The records include the fact that every time he used a dog in Ferguson, the police used it against a black person.
Can I give you a short story from the report to show you why I think it is so revealing?
So there is one story in which a woman calls the police because her boyfriend beats her up. By the time the police arrive, he’s gone. The police look around the apartment and say, “Does he live here?” And she says, “Yes, he does.” The police say, “You are under arrest for violation of the occupancy permit because his name is not on the lease.” When that happened to another woman in Ferguson, she said she would never call the police again, she didn’t care if she was killed. Again, this is how the police do black people and brown people. They don’t treat white people like that, certainly not as systematically as black and brown people.
I would like to ask you about this argument that the police problem can be reduced to ‘a few bad apples’. Your book is largely about this and I would like to know why you think it is nonsense.
First, it is insulting to police officers. I don’t think police officers are more racist than professors, doctors or anyone else. In fact, I think some people do that work because they want to be warriors, and that’s not constructive, so when we think about change, we think of guardianship as a model, not war.
But I think a lot of people go to work because they really want to help communities, and they really want to make a difference, and this belief is based on my experience as a prosecutor working with police officers of all backgrounds and all races. So I don’t think police officers are particularly racist. But I do think we give them tools and authority in a context that leads them to use it illegally against people of color.
The real question we need to answer is not, “Why do racist agents do racist things?” (that question answers itself), but why is it that non-racist police officers, or policemen who went out with good intentions, succumb to perverse incentives and eventually enforce inequalities that they themselves would likely reject in the abstract.
Right, and I think it’s about work culture. I tell the story that after I graduated from law school, I worked for a law firm for a few years, then I decided I wanted to become a prosecutor. So I was lucky enough to get a job at the Justice Department where they have drug tests. I smelled recreational weed before I got to the Justice Department. When I got to the Justice Department, because I had no trial experience, they sent me to the local public prosecutor’s office in DC to learn how to try a case. You start doing low-level cases, including marijuana possession and distribution of marijuana at the time. I quit smoking weed because I knew there were drug tests and I didn’t want to lose my job. But I sued people for smoking weed. So I understand incentives in the workplace and none of us are immune to it.
The law enforcement culture is a paramilitary culture. You are part of a team and you have to have each other’s back. Part of the reason your question is so important is that we are not just talking about white police officers, but also black police officers. Police officers of color get caught in the same loops. In hip hop, there is a lot of interest in black police officers, and the message you often hear is that black agents are actually worse than white agents because they want to show off the white police.
So the problem is about culture, and it’s much deeper than a few racists here and there.
If the problem were mere racist police, the solution would be simple: screen for and remove racists. But if the real problem is not so much bad police or bad police, but a culture built on a racial hierarchy that historically protected and strengthened law enforcement, it’s hard to see a path forward.
It’s a huge problem and I don’t know how to fix it, but what I do know is how I can make a difference in individual cases in a way that prevents people from being killed or beaten up, or that the law is selective is applied to them. I know there are reforms that can save lives, and even if they won’t crush white supremacy, if Sandra Bland and George Floyd can live instead of die, I’m cool with that on the road to transformation.
What kind of reforms?
In Chokehold, I argue that people see the problems between black people and the police in four different ways. So very quickly, the first way is that the problem is black men. It is the way we perform masculinity. If we just take off our pants, we don’t have to worry about being stopped and searched. Quite a few people think that.
The second framing is that the problem is the enforcement of the law, not the enforcement. What the black community needs even more than other communities is public order. So when the police in those communities selectively enforce the law, it’s actually kind of a reparation, it’s a payback for the time when 911 was a joke. And my friends who are accusers and police officers of color, that’s what they say. They say, “Hell yeah, I’m harder in the hood than in the suburbs, because that’s my community.” That’s how they think.
Then there is what I would call a more liberal framing, which focuses on the relationship between black people and police, like the problem is that they have a bad marriage and they just have to understand each other. This was very much the Obama administration’s approach and emphasized the need to bring people together alongside tangible reforms such as more body cameras and better training.
The fourth way of thinking about the problem is the focus on white supremacy. This is Jim Crow’s new idea. Here, people suggest that if you work alone with the police, that will treat the symptom. But the disease will spread. So in this story it started with slavery, it went to the old Jim Crow, and now it’s the new Jim Crow, enforced through a racially biased criminal justice system. And so the only way it really gets better is to beat the white supremacy.
I welcome Jim Crow’s new stance, but at the same time, we can save lives in other ways before crushing white supremacy. Therefore, I think the third framing through a liberal lens remains very useful, even though it won’t ultimately create the transformation we need, it’s worth saving lives.
So in the meantime, we can make a difference by teaching police officers to intervene when their peers cross the border, by teaching them to descale, by changing our entire approach to nonviolent criminal arrests. These things will not bring the revolution, but they can save lives.
Do you think we can break this cycle?
For me, that is almost a question about faith. About your belief in humanity. According to Martin Luther King, the arc of the moral universe curves into justice. I hope that’s right. One of the most poignant moments of that horrifying video [of Floyd’s death] there is a bystander who says to the officer, “Bro, he’s human.” The truth is, I don’t think those police officers are Mr. Seeing Floyd as a human. And I am not sure if that is a problem that can be solved by a reform.