The murder of George Floyd has triggered an enormously positive rethinking about the problem of racial discrimination in American society.
Much of the
attention has been focused on the actions and attitudes of the police. This is
appropriate since the danger posed by racist police is the only area that has
yielded little to the progress toward equality made in American society in the
last sixty years. Whites can’t appreciate that African Americans don’t feel
secure in their everyday lives.
The problem of
the police is complex. We know it isn’t a “few bad apples.” That three others
stood and watched while the Minneapolis killing occurred illustrates this, as
does the fact that Floyd was physically restrained for such a minor allegation.
This wouldn’t have happened to a white man – and we know that the situation in
Minneapolis was by no means unusual, even in its murderous outcome.
Dealing with
police attitudes won’t be easy. Many of the most troubled jurisdictions have or
have had African-American mayors and police chiefs. In some cities, the African-American
leadership role goes back decades. From the perspective of psychology, this
suggests that police attitudes are rooted
in the way society thinks about public order, and won’t change easily because
both police and society need to change.
Changing
society’s attitudes will take time and careful thought, but there is one area
where Americans can have a quick impact: the behavior of local prosecutors. Unless
prosecutors choose to file charges, there are no legal consequences to police
action.
Most Americans
know little about what prosecutors do. I was one of them a few years ago when I
began research on a criminal case in Ohio whose outcome was tinged with
politics. In reading the documents, I quickly discovered the extreme discretion
available to prosecutors. The man in this case was charged with an array of financial
felonies, including theft and money laundering, and these were capped with a
RICO (organized crime) charge. Ultimately, this man – non-violent and by no
stretch of the imagination involved in organized crime -- was sentenced to
eighteen years in prison.
The stunning
thing about this case was that the prosecutor could just as easily have brought
no charges and allowed the financial dispute to
continue in a civil court –
something that happened in most similar cases.
Or, she could have filed minor charges that would have amounted to at
most a short sentence. But here’s the amazing bottom line: she had at her
discretion -- and with no oversight -- actions that ranged from zero to
eighteen years in prison. This unfettered power is striking when you consider
that research in psychology shows that almost everyone has biases, especially
when they’re confident they don’t.
That same range
of discretion applies in deciding whether to prosecute a police officer for
brutality as well as for how aggressively to pursue minor charges – like the
broken taillight that led to Michael Brown’s death in Ferguson, Missouri. The
potential charge against Floyd amounted to $20. Counterfeiting is a serious
crime, but a reasoned analysis suggests the probability that Floyd was himself
a victim.
Prosecutors could
deemphasize high punishment of minor crimes by refusing to file major charges. The
incentives to the police would then change. And prosecutors could bring then
give greater attention to the kinds of white collar (and mostly
white-perpetrated) crimes that sap energy from our society and promote a
culture of lawlessness.
Prosecutors act
the way they do because they have no oversight – they are nearly free actors in
the judicial system. Courts and juries can prevent convictions on bad charges,
but have no role in the discretion. In fact, citizens nearly always defer to
the system -- both grand juries and trial juries, including those in
predominantly African American communities, are rarely willing to resist
authority.
Concerns about
prosecutors aren’t partisan. There have
been major issues in blue New York and red Texas. Most problems, however, are
never visible to the public.
Providing more
accountability to prosecutors won’t be easy since they have a very long tradition
of acting with impunity. But some careful oversight, in the form of citizen’s
review councils or similar, is essential to the beginning of an end to racial
injustice and also to the foundation of a fairer society.
