Grappling with Bias in the Criminal Justice System

Criminal defender Joseph Doyle had mixed feelings about the talk he gave at the Law School last week.

On one hand, he was honored to speak at the University of Chicago and grateful to be helping continue a nationwide dialog about race, the use of police force, and the impact of systemic bias in the criminal justice system. But that was tempered by the knowledge that these conversations were sparked, in part, by the death of his client Eric Garner during a confrontation with New York City police last summer.

“There’s really only one reason that I’m here to talk,” said Doyle, a staff attorney in the criminal defense practice at the Legal Aid Society in New York. “And it’s because a client of mine got killed.”

Doyle’s presentation was one of two Law School events last week that sought to bring insight, perspective, and analysis to issues highlighted late last year by the decisions of grand juries in New York and Ferguson, Missouri, not to indict white police officers in two unrelated deaths of unarmed black men, Eric Garner and Michael Brown.

“The day of these events marked a pivotal moment in my time at the Law School,” said Ruby Garrett, ’16, president of the Black Law Students Association, which joined with the Dean of Students Office and other student groups in sponsoring the events. A few hours before Doyle’s talk, five Law School professors participated in a panel discussion, “Ferguson and Beyond: Criminal Procedure and Police Killings,” that offered perspectives on the applicable law, available data, systemic nature of the problem, and approaches taken in other countries. “It is one thing to program as BLSA about the perpetual marginalization of communities of color,” Garrett said. “But the Law School actively supported this programming, and prominent professors extensively researched the issue and unabashedly vocalized their thoughts. That made a powerful statement.”  

Doyle, who described Garner as a reliable and “always respectful” client plagued by chronic police harassment, offered his candid assessment of the role race and bias play in the criminal justice system. He expressed frustration as he described a deeply ingrained problem that lacks easy solutions.

“If you, the white district attorney, look at the white cop defendant, you see someone you know — someone who’s from where you’re from,” Doyle said. “You see the good in him, you see what’s worth saving. You see all the stuff in him that I, the public defender, am trying to get you to see about my client. But you don’t look like my client, and you’re not from where he’s from. And so, when you look at my client, you don’t see all the things worth saving — you see the things he’s done wrong, and the things you think he’s done wrong.”

This perspective, he added, isn’t necessarily overt or intentional, and it isn’t limited to prosecutors. “Everybody’s got to watch for these biases, because we all have them,” he said. “If we don’t grapple with these, and if we don’t find a way to see past the differences, we’re not going to have justice in the system — we’re just going to have more Eric Garners.”

Garner, 43, an African-American father of six, died after a white New York City police officer used a chokehold to arrest him for selling untaxed cigarettes. Video of Garner’s death sparked nationwide outrage, and that anger intensified after a grand jury decided not to indict the police officer — a decision announced less than two weeks after the Ferguson decision was announced.

“I’m appalled by some of the recent non-indictments,” Richard H. McAdams, Bernard D. Meltzer Professor of Law, told students at the lunch event earlier that day.

McAdams opened the panel discussion — which was moderated by Professor Alison Siegler, founder and director of the Federal Criminal Justice Clinic — by discussing defenses that police may assert to justify the use of deadly force, including their authority to use force to arrest a fleeing felon. He focused in part on a 1985 U.S. Supreme Court case, Tennessee v. Garner, which held that, under the Fourth Amendment, a police officer who is pursuing a fleeing suspect may not use deadly force to prevent escape unless the officer has probable cause to believe that the suspect poses a physical danger.

But, he said, he isn’t sure that the case compels states to make it a crime for police to use deadly force outside of these circumstances. “They should make it a crime, but in general, states don’t have a have an obligation to criminalize violations of the federal Constitution,” he said.

Afterward, the other faculty panelists offered perspectives and data for thinking about the issues raised by the cases in Ferguson and New York.

Professor Randolph N. Stone, who directs the Criminal & Juvenile Justice Project Clinic, addressed the systemic problems contributing to these issues; Professor Aziz Huq, Herbert and Marjorie Fried Teaching Scholar, presented some of the scant data available to describe the problems; and Deputy Dean Tom Ginsburg, Leo Spitz Professor of International Law, discussed solutions tested in other countries.

Stone began by briefly pointing to a string of similar examples from the past several decades: the 2001 Cincinnati riots that followed the shooting of a black teenager by police; the 1992 Los Angeles uprising that followed the acquittals of the four white police officers who had been videotaped beating Rodney King; the 1980 Miami riots that erupted after four Miami-Dade police officers were acquitted in the death of black man; and the 1971 Attica prison riots in Upstate New York, which were rooted in racial injustice and unrest.

“It’s not just about Michael Brown and Eric Garner,” Stone said. “It’s about a chronic, historic, nationwide, systemic disregard and disrespect for life in marginalized communities and, in particular, for black life.”

He pointed to trends in the prison population, noting that the lifetime likelihood of imprisonment was 1 in 3 for black males, 1 in 6 for Latino males, and 1 in 17 for white males.

He also talked briefly about possible solutions that merit continued discussion, including body cameras on police, better use of civilian review boards, policies designed to combat a “no snitch” culture within police ranks, and the use of special prosecutors.

Huq discussed excessive use of police force and began by referencing the scale of the problem: “We have no idea,” he said. “There is no national data that is maintained on the rates of police force that results in the deaths of civilians.” The FBI tracks justifiable police homicides – there are about 400 a year – but not unjustifiable police killings, Huq said.

He did point to a post on Nate Silver’s popular number-crunching FiveThirtyEight blog that discussed an online aggregation of news stories about police-related killings that put the informal tally at 1,450 since May 2013 — or roughly three per day.

Huq suggested that police departments need to look at deeper institutional fixes for excessive force rather than addressing these occurrences as issues of “bad apples.” But for a variety of legal and practical reasons – including that it is difficult to prove what was going on inside an officer’s head during an incident – remedies aren’t simple, he said.

Ginsburg offered the comparative perspective, pointing to solutions sought by a variety of jurisdictions, including an innovative program in Brazil in which police were essentially paid not to kill.

“If your unit doesn’t kill someone, it gets a bonus,” he said. “It’s not that complicated, actually. You do that, and you provide non-lethal ways of dealing with force, and you go a long way.”

He also talked about the benefits of private prosecution, as well as a study in Argentina that showed that the probability of a conviction in a police brutality case goes up from 15 percent to 45 percent if there are protests and media coverage.

“What we have in a democracy is that we can mobilize, and that seems to have a very dramatic impact,” Ginsburg said. “But the big point is that we ought to be thinking creatively.”