Richard Epstein: Hasty Judgment On “Institutional Racism”

Over the past few dizzying days, the nation has been shaken by the killings of Alton Sterling in Baton Rouge, Louisiana, Philando Castile in St. Paul, Minnesota, and the five police officers mercilessly gunned down in Dallas, Texas. These events have intensified a bitter debate about whether institutional racism is endemic in police forces across the nation. 

Sterling and Castile, some say, were murdered in cold blood simply because they were black. But individual cases are unique, and often are notoriously difficult to judge, even with the benefit of hindsight.

Take the case of Sterling. He was surely resisting arrest, but the video shows him being subdued by two police officers when one pulled out a gun from his holster and shot him several times in the head. It is hard to imagine any earlier events that could have justified this action. To be sure, we should hear from the officers before making a final judgment, but the public outrage in this case seems well justified.

But the situation with Castile is draped in obscurity. The video taken by Castile’s girlfriend Diamond Reynolds only picked up the action after Castile was shot four times by Officer Jeronimo Yanez. According to Reynolds, Castile had already told the police he carried a licensed concealed weapon as he was reaching for his license. By her account, he was doing everything possible to avoid engaging in confrontation with his girlfriend at his side and a four-year child sitting in the back seat. Those facts paint a picture of excessive force used by a police officer in an incident with clear racial overtones. Indeed, just that judgment was reached by Minnesota Governor Mark Drayton who, obviously shell-shocked by the event, mused out loud: "Would this have happened if those passengers, the driver and the passengers, were white? I don't think it would have. So I'm forced to confront, and I think all of us in Minnesota are forced to confront, that this kind of racism exists."

This verdict, though, may not be entirely fair. The facts are still coming in and at least one recent account insists that Castile’s automobile was not stopped for a broken tail light, but because Castile matched the picture of a suspect involved in a recent robbery in a nearby convenience store, meaning the stop was connected to a past felony. There is also some evidence that a handgun that matched the kind used in the convenience store was found near Castile’s hand, leaving the question of why, if Castile were reaching for his license, the gun was at his side. The audio also reveals the officers telling Reynolds to keep her hands up, which makes good sense if in fact the gun was in easy reach for her. Indeed, it is far from clear whether she knew that the gun was there when she made her commentary.

There will doubtless be more iterations in the evidence before the case winds down. But the lesson is clear. Everyone should be very careful about making judgments about individual homicides before the evidence is fully in.

We have been here before. Today, the narrative about Ferguson, Missouri, is that Officer Darren Wilson gunned down Michael Brown, an unarmed black man. But that indictment misses the true story. An exhaustive Department of Justice investigation exonerated Wilson of any wrongful conduct, only to be buried when DOJ simultaneously released a report that blasted Ferguson for its “racist” practices in issuing traffic tickets for revenue purposes. As a result, there is a great deal of confusion about the case, and Ferguson continues to fuel massive protests, often violent, against police brutality. A similar thing happened in the case of Trayvon Martin. At trial, his killing was found to be done in self-defense, notwithstanding the rush to judgment the other way. The moral: we need to hear both sides.

In my initial reaction to last week’s news, I ignored this key rule. Instead, I sought to explain that Drayton’s key error was his uncritical willingness to infer some level of institutional racism from the sad facts of an individual case. In other words, if, in fact, the account that Reynolds offered were correct in all its particulars, the inference that the case itself represented a form of institutional racism would still be a mistake. It is difficult to imagine that anyone, in any position of power, condones racially motivated killings. The situation, therefore, is worlds apart from the institutional racism of Jim Crow, where horrific practices were approved at the highest levels of state, county, and local governments throughout the South, and other places as well.

The more likely explanation for these tragic killings is more sophisticated, and seeks to undercut any connection between individual tragedy and institutional racism. These homicides likely stem from the fear that officers have about their own perceived risks given the so-called “Ferguson effect,” or the higher level of resistance by black citizens to police arrests, especially those conducted by white officers. There is also the background statistics that are driving individual police behaviors. The rate of criminal conduct by blacks is higher than that for whites, especially in the area of homicides. And with the rise of the Black Lives Matter movement, there is an organized resentment against police that is race-based, leading to higher levels of hostility toward white police officers, especially those making arrests of young black males.

None of this is lost on the cops who face these realities every day. The police are intuitive Bayesians, as it were, meaning they believe that the crime statistics give some indication of potential danger in their confrontations with citizens. So white police officers are more likely to regard interactions with black people as involving relatively higher risks of injury. Jumpy and scared, they think they are acting in self-defense when they confront a black man, when it turns out that they are just jumping to conclusions. Black officers are less likely to take extreme measures against black men because they may not, at least not to the same extent, regard themselves as subject to the same level of hostility that white officers are. These are rational police adjustments to perceived risks, which in some cases lead to tragic overreactions.

The key point here is that no matter what happened in the Castile case, large claims about institutional racism are hard to connect with the facts on the ground. There is no one in a high position who condones the shootings. There are countless programs in place to teach the police how they ought to behave in potentially risky settings. Training on racial sensitivity is at an all time high. There is an increasing use of police cameras to document police movements on a continuous basis. The ubiquity of private mobile devices makes it a virtual certainty that someone will record these events, in ways that eliminate much of the factual uncertainty surrounding individual incidents. Affirmative action programs are firmly in place across the land. There have been an increasing number of black and brown officers appointed to high positions in major settings, including in Dallas, where Police Chief David Brown is well known for his commendable initiatives to improve community policing. It is easy to understand Brown’s reaction to the horrific events in Dallas: “All I know is that this must stop—this divisiveness between our police and our citizens.” It is hard to know what to do next.

Sadly, Brown’s focus is misplaced. Public perceptions, largely influenced by the media’s coverage of such events, overlook the simple point that police homicides, whether or not justified in individual cases, are outlier events. It is not the general public that is the problem. Let 99.99 percent of all races and ages agree with every word Brown spoke. Yet we still have a major crisis. As Thomas Hobbes understood a long time ago, when the question turns to the use of force, what matters is the outlier, not the average citizen. A single outlaw has the capacity to disrupt and destroy many innocent lives. Preaching peace and cooperation to the multitudes that are appalled by violence does nothing to control the tiny tail, whose hatred could be perversely magnified by public expressions of love, cooperation, and peace.

Alas, there is a real risk that the harsh rhetoric denouncing racism only makes matters worse. The distribution of low frequency events is always hard to predict. Sometimes they cluster, sometimes they don’t. Here, what really matters is what happens when outraged individuals who are driven by incendiary anti-police rhetoric take the law into their own hands. Micah Johnson, the Dallas shooter, was an outlier and loner who took to heart the message of the New Black Panther Party that advocates violence against whites in general and Jews in particular. There are reports of similarly inspired violence against police in Tennessee, Missouri, and Georgia—but again these events have to be thoroughly investigated.

But the larger lesson is clear. Just one person, with military training no less, can send the entire system into turmoil by killing five police officers and wounding seven other officers and two civilians. It is impossible to regard Johnson’s actions as anything other than horrific individual racism. But unlike the police who have killed black men, he was motivated by divisive mainstream rhetoric.

The question of whether anything can be done, given the law of large numbers, is yes. If a large population becomes more resentful, the extreme tail moves as well—closer to violence. So here again the message is clear: it is necessary to tamp down on inflammatory claims.
But how? On these issues, leadership starts at the top. Many have praised President Barack Obama for what they regard as his measured remarks on the killings in Louisiana and Minnesota, just hours before Johnson’s senseless killings in Dallas. But the President’s carefully crafted message may well have prejudged the situation in Minnesota, as it did with Trayvon Martin and Michael Brown.

To be sure, he ends his speeches by saying some version of: “We have extraordinary appreciation and respect for the vast majority of police officers who put their lives on the line every day.” But the words ring hollow when they follow his indictment of police for institutional racism. The killings in Louisiana and Minnesota, he said, were not “isolated incidents,” but were “symptomatic of a broader set of racial disparities in our criminal justice system.”  But that linkage has just not been established in these two most recent cases.

No one should be foolish enough to say that the criminal justice system is beyond improvement. It has improved and should continue to improve. But the matter has to be kept in perspective. We are not living in the age of Jim Crow. The first thing that the President should do is acknowledge the enormous progress that has been made. Instead, he lists a dubious set of statistical claims: blacks are pulled over more frequently for traffic stops, and they are subject to higher arrest rates for homicides. Obama has rightly been criticized on this front by the ever-alert John Lott for ignoring the underlying rate of violations, especially in connection with arrest rates for homicide, which are twice as high for blacks even though they are six times as likely than whites to commit homicide. Underenforcement looks like the more serious charge.

It is good that the President declared the actions of Micah Johnson despicable. But he, and everyone else, should be more cautious about claims of institutional racism based on a few disconnected homicides. The rush to judgment can have, and has had, fatal consequences. 

Professor Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago.