Throughout the past week, my alma mater (UC Berkeley) has been embroiled in protests and riots over the refusal of grand juries in Missouri and New York to indict police officers accused of killing unarmed black men.
The grand jury system was originally a tool in the defense of the public, much like trial juries. The idea was that the State would have to demonstrate to a jury that it had a plausible case before a suspect could be brought to trial, thereby insulating the public from officials who would use the power of government to harass or punish. However, in recent years, the system has become perverted, to the point where the indictment rate at the Federal level exceeds 99.99% – fewer than 10 per hundred thousand escape indictment. (The State indictment rates are somewhat lower, but not much.) According to law professor Andrew Leipold, “If the prosecutor wants an indictment and doesn’t get one, something has gone horribly wrong.”
Grand juries are usually tightly controlled by prosecutors, to the point where some have wryly noted that they could indict a ham sandwich. Prosecutors need not introduce exculpatory evidence, and while the defense can testify, doing so generally only introduces evidence that can be later used to secure a conviction. In this light, it’s odd at best that prosecutors in each case called the defense (that is, the police), instructed the jury that they “must” not indict if certain facts were presented, and then proceeded to undermine their own cases, even when one of the killings, which included video evidence clearly showing police using an illegal chokehold on a man who could be heard saying “I can’t breathe”, was ruled a homicide by medical examiners.
The important thing is that a grand jury indictment is not a conviction: it is the first step toward a trial to assess the guilt of the accused. Given the evidence available to the public, and the ease of securing an indictment, the fact that the police were spared even the possibility of any legal repercussions strikes many (myself included) as an obvious miscarriage of justice, whether or not the police would have ultimately been convicted. The fact that the victims were unarmed and black compounds the tension. (However, a great review of criminological literature by Scott Alexander indicates that “there seems to be little or no racial bias in arrests for serious violent crime, police shootings in most jurisdictions, prosecutions, or convictions.”)
The cases have thus become focal points for protests that the justice system persistently abuses its authority, terrorizes minorities, and protects itself above the public. In Berkeley, thousands of demonstrators have taken to the streets for days, leading to the closure of the I-80 freeway while some began looting and vandalizing downtown. When asked to defend the protests, supporters generally argue something along the lines of (local legend) Mario Savio’s Free Speech Movement address:
“There’s a time when the operation of the machine becomes so odious—makes you so sick at heart—that you can’t take part. You can’t even passively take part. And you’ve got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus, and you’ve got to make it stop. And you’ve got to indicate to the people who run it, to the people who own it that unless you’re free, the machine will be prevented from working at all.”
By this logic, the goal of the protest is simply to disrupt, ostensibly to force “those in power” to take notice and address the cause of the protest to return to something resembling the status quo. Moreover, freeway closures, looting, and the rest are justified on the grounds that, in the words of one representative protestor, “Some people are content with living outside of this conflict. By blocking the freeway, or other public roads, buildings, parks, etc., you bring the issue to those people. You can not ignore it when hundreds of people are in front of you…”
Asked about the objectives of the protest, the same protestor said “I disagree with the idea that there has to be a coherent platform for the protest to be effective. The point of the protest is to make it clear that the status quo is not acceptable, and once that is established, a proper conversation about how to fix it will begin.”
In other words, the protestors’ goal is explicitly to victimize the public and generate chaos…to produce public sympathy and bring forward clear-headed proposals aimed at solving (or at least alleviating) “systemic racism”. Right.
This all brings me to a few observations about the nature of proper (i.e. justified and effective) protest:
1) Agitation against “those in power” only works when they’re actually in power. The particular people at the center of the controversy are in New York and Missouri. There is nothing that the Berkeley Police Department, or even the State of California, can do toward these particular harms.
2) A protest is a prosecution in the court of public opinion; much like a civil trial, the claimants must have standing, including a demonstrable, remediable harm. In the case of the Berkeley riots, there are some big problems in this respect. For one, the harms (police misconduct and miscarriage of justice), not being suffered by Californians, are therefore not demonstrable. Additionally, because they rely on fixing broken systems in New York and Missouri, they are not effectively remediable in the chosen forum (California’s streets). The States that do have that capacity appear to be making a good faith effort: New York’s Attorney General Eric Schneiderman requested authority to investigate and prosecute the case, rather than a New York District Attorney who might have conflicts of interest that would undermine public confidence in the legitimacy of the justice system.
3) To the extent the protests are directed toward an abstraction (e.g. “civil rights”, “ending police brutality”, etc.), the location and nature ought to be tailored to that end. Indiscriminately victimizing innocent bystanders is not likely to curry public favor. How much better, and more sensible, if instead the protestors rallied around City Hall, or police stations, or courthouses, where the object of the protest is more readily apparent? The symbolism could be quite clear: a closed courthouse is an ideal metaphor for the idea that the criminal justice system is not delivering justice.
4) One cannot protest against “systemic racism” any more than one can fight a “war on terror”. It’s just not actionable. And when pressed, the protestors do not indicate that they have any particular objectives. If all one has to say is “the system is broken”, one is not contributing to a solution. Causing disruptions and waiting for someone else to figure out how to clean up the mess is abdicating the responsibility to create workable social arrangements. Moreover, as Scott Alexander ably notes, “systemic racism” cuts critical links out of causal chains. Quoting at length:
Consider a town with 1000 black people and 1000 white people. 750 black people are poor, and 250 are rich. 750 white people are rich, and 250 are poor. Everyone commits crimes at the same rate – let’s say 10% per year. Rich people have lots of connections and can bribe their way out of trouble in a pinch, so only 50% of rich criminals get arrested. Poor people don’t have any strings they can pull, so 100% of poor criminals get arrested.
We can do the calculations and determine that the black arrest rate will be 8.75% and the white arrest rate 6.25%, a pretty significant difference. The people in the town can do the calculations as well. They correctly observe that in their town, everyone commits crimes at the same rate, so there must be some bias in their system. Using Klein’s definition, they determine that since the system in their town disproportionately affects blacks, their criminal justice system is racist.
The problem is, upon learning that your criminal justice system is racist, what solutions come to mind? The ones I think of include things like increasing the diversity of the officer pool, sending police to diversity training, ferreting out racist attitudes and comments among members of the force, urging officers to consume media that is more positive towards black people, et cetera.
But all of these are unrelated to the problem and will accomplish nothing. We specified the decision algorithm these officers use, and we know it has nothing to do with race and everything to do with class. The townspeople should be attacking the culture of bribery, nepotism, and corruption, not throwing away resources on curing racist attitudes that don’t affect police behavior in the slightest.
Note that this is true even if the poverty is caused by racism. Suppose the town college unfairly admits whites and turns down blacks, which is why the white people in this town are so much richer. I have no problem with saying “the town college is racist”. This suggests the appropriate solutions – educating and/or punishing the people at the college. I have a lot of problems with saying “the town police are racist” as a shortcut for “the town police take bribes, and due to racism somewhere else the people with the cash are all white” because this obfuscates the correct solution.
5) Effective social change is about more than just stopping the machine when you don’t get your way. One also has to know when to put down the pitchforks and use other methods. That’s why it’s so important to know what the victory condition is, when the protests are designed to end. The March On Washington in the 60’s didn’t say “we want to end all racism forever, and we’re not going away until then!” They said, “we demand the right to vote and the ability to access public services.” They did their protest, they achieved their objectives, and then they continued working in other areas, without mass protest. Or look at Iraq: the US government decided they wanted “freedom and democracy” in the Middle East without having a clear idea of what that would mean in practical terms, and what we got was an ongoing, decade-plus long occupation of a country in civil war and the seeding of new threats in organizations like ISIS. Knowing one’s objective clearly doesn’t mean ceasing to advocate for improvements, but it does mean recognizing that simply agitating for “change” isn’t going to get the change one wants to see.
6) If there’s no clear objective, and there’s no clear victory condition, there’s no way for officials to demonstrate good faith. In other words, the protests/riots will continue only as long as people (protesters and bystanders both) are willing to tolerate them. That either means protests will lose momentum, or generate enough bad will that nothing useful comes out of them. “The movement” doesn’t necessarily need to have a particular objective; there are all kinds of movements (e.g. socialism, libertarianism) that are bound by some central ideas and internal disagreement about the best way to achieve those values. But individuals within that movement do need to have intelligible goals, and they need to be presenting and advocating those ideas in coherent and respectable ways simultaneously with protests.
7) Most of the solutions are at a high level, having to do with things like admissibility, internal affairs, judicial procedure, etc. Most people have no control over these things. Harm to innocents is not justified by the fact that they’re staying out of the issue, whether their reasons for doing so are good or not. The “lash out until people agree there’s a problem” approach will not work because there’s no test to verify that people think it’s a problem, and the people who do have the capacity for such changes can’t effectively do so when roads are blocked, nor are police inclined to de-escalate in the face of riots, looting, etc.
8) If the right response was “shut it all down” in the face of any seeming injustice that didn’t perfectly conform to our own vision, we’d still be in the Stone Age. (And when our own vision is as nebulous as “feeling respected”, I doubt we’d even get that far!) There are lots of things we could be protesting. We could be protesting about how accused rapists don’t get due process. We could be protesting how religious folks have their values denigrated publicly while the legal system compels them to act against their beliefs. We could be protesting how minimum wage laws and badly designed means-testing on welfare programs trap the poor in poverty. We could be protesting how public employee unions are bankrupting States. Or we could be protesting that rape victims get sidelined by the legal system, that gay people can’t buy wedding cakes, that single mothers with limited skills can’t support their kids even working two jobs, and that teachers are underpaid. Every policy is going to have something in it that someone finds unfair and objectionable. Civilization depends on people broadly accepting imperfections even while working to correct them.
In sum, protests need to address a few critical questions to be effective:
1) What is being protested?
2) Is the venue appropriate to the problem?
3) What specific solutions are being advocated?
4) Who is the person the protest is directed toward, and is that person capable of offering a desired remedy?
5) What actions must that person take to demonstrate sufficient good faith for the protests to end?
Here are my answers for an effective protest in Berkeley:
1) What’s being protested is a criminal justice system that perpetually harasses innocents, routinely uses excessive force, and protects its own before the public.
2) The appropriate venue is City Hall or a Courthouse, where the object is clear and collateral damage is minimized.
3) The proposed solutions (in part) are:
A) Prosecutors for Grand Juries should be required to furnish exculpatory evidence, under penalties of contempt, perjury, and disbarment.
B) Police should have to wear cameras/mics any time they’re on duty. All footage must be backed up to a secure location, but no footage may be “mined” using (e.g.) facial recognition software, so as to prevent individual targeting by authorities.
C) Any police testimony not supported by audio/video of the encounter should be deemed inadmissible, to compensate for police officers’ unique status as professional witnesses and respected figures.
D) Police misconduct should be tried by an independent prosecutor to avoid the obvious conflict of interest posed by the collegial working relationships shared by District Attorneys and police.
E) A concerted effort should be made to reduce the breadth and depth of criminal statutes. In particular, the War on Drugs should be concluded immediately.
F) SWAT Teams should be deployed only for active shooters, and other immediate threats to public safety, not non-violent offenses or serving warrants.
G) Police unions should cover wage/hours negotiations only, and should have no role in reinstating officers suspended or fired for misconduct.
4) The protests should be directed toward municipal, State, and Federal governments, as appropriate to the particular remedies sought.
5) A sufficient show of good faith would consist of the formation of a special committee to assess the merits of the proposed solutions.
I can only wonder about the differential impact of this method to the one currently being employed.
(Update: It appears that violence and looting was instigated, at least in part, by plainclothes California Highway Patrol officers. Obviously, this compounds and confirms the perception that the criminal “justice” system is deliberately and systematically obstructing justice in a bid to shield itself from public scrutiny and accountability.)
(Update II: Meanwhile, reports from Massachusetts reveal a chronic problem of police officers protecting colleagues who drive drunk. Needless to say, the continual, blatant abuse of power and public trust is likely to cast a dark shadow over police/citizen relations.)