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In Policing, Race Matters

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In Policing, Race Matters

National Review August 20, 2020
Urban PolicyCrime
Policing & Public SafetyAll

Black men are the principal beneficiaries of policing; they also bear its highest costs.

We can’t talk about policing in the United States without talking about race. It’s personal to me. I’m white. But I’m married to a black woman, and we’re the proud parents of a biracial son who, as he grows up and navigates American life, will face challenges that I never had in my own youth. He’s nine years old now and only barely beginning to wrestle with questions of race and identity. Yet as he matures into adulthood, he’s more likely to have encounters with police than I have been. These encounters are more likely to include some police use of force than if he were white. And that’s assuming he can resist his tendency, inherited from his father, to be somewhat of a smart aleck when confronted by authority figures.

My son’s greater likelihood of police encounters isn’t something easily fixed by legislation. There are nevertheless current efforts, in Washington and the states, as political leaders respond to the public outcry prompted by George Floyd’s inexcusable death at the knee of Minneapolis police officer Derek Chauvin.

At the federal level, alternative bills introduced by each party emphasize the intersection of race and policing, though, as one might expect, their approaches and proposed remedies differ somewhat. The Republican bill — the Just and Unifying Solutions to Invigorate Communities Everywhere (JUSTICE) Act — would enact a federal anti-lynching law, encourage police departments to recruit more minority officers, fund police-education programs, and establish a new “Commission on the Social Status of Black Men and Boys.” The Democrats’ bill — the George Floyd Justice in Policing Act — also includes anti-lynching, recruitment, and training provisions. In addition, it has an entire section dedicated to addressing “racial profiling,” which gives new enforcement powers to the federal Justice Department as well as providing for new “civil actions” — i.e., citizen lawsuits against police departments.

The GOP bill’s more modest approach here makes sense, and the Democrats’ proposed remedy is deeply flawed. Before explaining why, I want to emphasize that each bill’s focus on race as it relates to policing is appropriate — something that may seem counterintuitive to those who, like me, think we should strive for a color-blind America, at least in terms of legal rights and remedies.

Here’s why: African-American men are the principal beneficiaries of good, proactive policing in the U.S.; but black men in America also disproportionately bear policing’s cost. Black people broadly understand that. Last year Gallup surveyed African-American residents of “fragile communities” on the importance of policing; 52 percent said they “would like the police to spend more time in their area than they currently do” — a higher percentage than white respondents.

But there’s a cost to that policing, too. A black female friend recently wrote to me, “Every black man that I know, regardless of class or education, has had a negative interaction with the police.” That also rings true in my experience. If you don’t believe us, ask Tim Scott of South Carolina, one of two African-American men in the U.S. Senate and the JUSTICE Act’s Republican sponsor. In 2016, Scott told his fellow senators, “In the course of one year, I’ve been stopped seven times by law enforcement. Not four, not five, not six, but seven times in one year as an elected official.”

That policing places unique burdens on black men doesn’t mean it isn’t essential. Effective, proactive policing is a principal cause of the most remarkable public-policy success in America’s last three decades: the sizeable reduction in violent crime. Between 1993 and 2018, American violent crime fell from 747 crimes per 100,000 to 369, a drop of 51 percent. That’s more than a million fewer instances, each year, of horrible crimes such as rape, robbery, and assault. Homicides also fell by more than half from their peak (1991) to their trough (2014): from 24,808 to 12,278. That’s thousands of lives saved annually.

And most of those lives are black. It’s sad but true that even though only 13 percent of Americans self-identify as black, black Americans constitute more than 52 percent of murder victims. Among males (who are 77 percent of homicide victims), that share rises to 57 percent. That staggeringly high murder-rate burden borne by black American men suggests we should be extraordinarily cautious about a pullback in the proactive policing that reduces violent crime. Recent research by Harvard scholars has shown that reduced policing intensity in the wake of federal investigations of police departments scandalized by “viral” deadly-force incidents led to substantial upticks in the commission of homicides and other violent crimes.

But if we need policing, especially to protect black men, we also must grapple with the fact that black men are especially burdened by proactive policing practices. Police departments that do their jobs well pay particular attention to neighborhoods with higher crime patterns — which are, as the above data imply, more heavily populated by black residents. The people who live in high-crime areas thus have more interactions with police.

Moreover, we know that most crime is within-race — black-on-black, or white-on-white — whether we’re talking about murder or other violent crime. That means black men are disproportionately offenders, too, an uncomfortable fact. Yes, this uncomfortable fact may be rooted substantially in the nation’s long history of slavery and race discrimination, which social scientists such as James Q. Wilson have connected to a host of cultural and family outcomes. It’s likely a function of varying economic opportunities, which are themselves a function of disparate educational provision and a host of government actions (including but not limited to those intended as beneficent).

Regardless of the causes of the large gap in violent-crime commission, the takeaway is simple: When black men are disproportionately offenders, they’ll disproportionately be suspects — and thus disproportionately have interactions with police. That’s true to some extent regardless of neighborhood, particularly for those who work in urban business districts with ongoing crime reports that show a racial skew. If a victim identifies an offender by race, police will naturally look for suspects who match the victim identification.

That means black men are much more likely to be stopped by a police officer, statistically, based on a “false positive” identification — notwithstanding that the vast majority of black men aren’t serious criminals. (All Americans are petty criminals who unknowingly commit multiple felonies a day in our modern overcriminalized world.) That’s what happened in 2015 to Harvard-educated tennis pro James Blake, who was wrongly fingered by a witness as being a player in an identity-theft ring. I worked mere blocks away from where the plainclothes officer mistakenly arrested (and then released) Blake, but I was exceedingly unlikely to be misidentified in the same way for that cyber crime. My son, once he enters his teen and young-adult years, is unlikely to be so lucky, at least in a heavily populated urban setting where he’s not known to local cops.

We need to think carefully about this false-positive problem, and the fact that black men are probably going to face more police interactions as long as black men are disproportionately violent-crime victims and offenders. But that complex reality also suggests the failings in the House Democrats’ approach to racial profiling. I’ve already mentioned the potential safety costs of the Justice Department “pattern and practice” police-oversight investigations — the Harvard researchers found that the investigations correlate with more violent crime under certain conditions. The Democrats’ bill would ramp up such investigations, predicating them on very loose evidentiary findings of wrongdoing.

But that’s not all. The Democratic bill would also allow private plaintiffs to sue police departments. Those lawsuits would be preposterously easy to launch. To establish “racial profiling” as the bill defines it, the plaintiffs’ lawyer would merely need to show that “the routine or spontaneous investigatory activities of law enforcement agents in a jurisdiction have had a disparate impact on individuals,” based on “race, ethnicity, national origin, religion, gender, gender identity, or sexual orientation.”

That laundry list of characteristics — hardly limited to race — highlights a core problem with such a “disparate impact” test in this context. There’s not a police department in the country that doesn’t focus its “investigatory activities” more heavily on men than on women. Men commit a lot more violent crimes. As we’ve seen, there’s a broad (if smaller) racial gap when it comes to violent-crime commission, too. By its very terms, the Democrats’ police-reform bill would effectively place every police force in America under the control of social-activist plaintiffs’ lawyers filing suits before unelected federal judges.

Some such judges would doubtless dismiss the lawsuits, even if plaintiffs could make a threshold case. But it will be hard for judges — trained in law, not mathematical models — to tease apart the statistical evidence and make good determinations. Moreover, lawyers filing suits will do their best to shop for favorable judges. Sympathetic judges may try to get such cases on their dockets, too. That’s what former federal district judge Shira Scheindlin did, as she actively encouraged the litigation that led her to rule against the New York Police Department’s controversial (and overused) stop-and-frisk proactive policing program. Her actions prompted the federal appellate court to take the extraordinary step of removing her from the case. Shortly thereafter, the new mayor, Bill de Blasio, settled with the plaintiffs, ending the litigation.

Whether through judicial decisions or through “collusive settlements” like the one reached between the New York plaintiffs and the de Blasio administration, governing police departments by “consent decree” is fraught with peril. In their 2003 book Democracy by Decree: What Happens When Courts Run Government, New York Law School professors Ross Sandler and David Schoenbrod chronicle the frequent mishaps of judges using such decrees to oversee school systems, prisons, and more — experiments sometimes lasting decades. At best, it’s undemocratic for federal judges to rip authority from elected local officials and thereby allow an end run around ordinary legislative processes. At worst — in the context of policing — it will lead to more murder, rape, robbery, and assault, without any public-accountability mechanism to right the course.

That’s why the Justice in Policing Act’s racial-profiling provisions would be best left on the cutting-room floor. But that doesn’t mean a special attention to race and policing isn’t warranted. The bills’ overlapping attention to disclosure, recruitment, and training is a good place to start, as is the Republican bill’s special focus on black men and boys. One reason that police officers make more false-positive identifications than they should is that cross-racial identifications are significantly less reliable than identifications within one’s own racial group. There may be ways to train officers to become more accurate, such as practicing with photo arrays — though it’s hard to cure witness errors, as in Mr. Blake’s case. Hiring more black officers would definitionally ameliorate the problem with cross-racial identifications, too.

Beyond cutting down on false identifications, hiring more minority officers would probably also cut down on the disproportionate application of force against black men. Multiple studies have shown that, when other variables are controlled for, officers are not more likely to shoot black rather than white suspects. But police shootings aren’t the whole story. They’re rather rare. Other uses of force are significantly more common. And other uses of force can even, as in George Floyd’s case, turn deadly.

When we look at all uses of force and not just shootings, the evidence becomes more troubling. Even controlling for factors such as age, sex, area crime rate, and time of day, researchers have found that police officers are 18 percent more likely to use force against black than white suspects (and 12 percent more likely to use force against Hispanic suspects). But this use-of-force gap becomes smaller, and statistically insignificant, when the police officer is black or Hispanic rather than white. This difference in applied force may be attributable to differences in officer perceptions or attitudes (including but not limited to explicit or implicit racial bias). It may also be a function of suspect behavior — for instance, if black or Hispanic suspects behave differently when confronting a white officer than they do when interacting with one in a common racial or ethnic group. Regardless, if what we’re worried about is lowering the disproportionate burdens that policing places on black men in America, recruiting more minority cops probably matters. Training programs might make a difference here, too.

Although the evidence suggests that hiring more minority cops and better training of all police officers could make a difference, it’s doubtless not going to satisfy those who want more-systemic policing overhauls — or the abolition of the police altogether. But it’s wise not to overshoot. The Democratic bill’s reliance on sweeping command-and-control efforts from the Justice Department, and even from unelected federal judges, would destroy public accountability and jeopardize hard-won public-safety gains. Black men disproportionately benefit from proactive policing, too, as all of us who care about black lives should be careful to remember.

As my son gets older, I’ll probably have to give him some version of “the talk” that black parents give their sons about dealing with police. Even if he follows the straight and narrow, he’s more likely to have police interactions than are his white peers — much like Tim Scott, James Blake, and every black male friend with whom I’ve discussed this issue. That’s going to be true no matter what Congress and state legislatures do in the coming months and years. But here’s hoping that legislators take well-considered steps that protect black men’s lives while lowering the burdens imposed by that protection.

This piece originally appeared at the National Review


James R. Copland is a senior fellow and director of legal policy at the Manhattan Institute. He is the author of “The Unelected: How an Unaccountable Elite is Governing America,” forthcoming in September. Follow him on Twitter here.

Photo by Alex Wong/Getty Images