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Saturday, June 6, 2020

Why the policing problem isn’t about “a few bad apples”

Police shoot pepper bullets into a crowd of people demonstrating against police violence in Los Angeles on June 1. | Robert Gauthier/Los Angeles Times via Getty Images

“The system was designed this way”: A former prosecutor on the fundamental problem with law enforcement.

Every time a cop is caught brutalizing a black or brown person, I hear the same argument: “It’s just a few bad apples.”

I’m hearing this again in the wake of George Floyd’s murder. On Sunday, to take one example, National Security Adviser Robert C. O’Brien said, “We have got great law enforcement officers, not — not the few bad apples, like the officer [Derek Chauvin] that killed George Floyd. But we got a few bad apples that have given — given law enforcement a bad name.”

When asked by CNN’s Jake Tapper if he thought systemic racism was a problem for law enforcement, O’Brien replied: “No, I don’t think there’s systemic racism.”

Curiously, the people who recite this trope rarely reflect on the second half of the expression: “A few bad apples spoil the bunch.” But let’s set that aside.

No matter how you look at it, the American criminal justice system is riddled with biases. As the Washington Post’s Radley Balko cataloged, we know that black people are nearly twice as likely to be pulled over and more likely to be searched once they’re stopped even though they’re less likely to have contraband; and that unarmed black people are more than three times as likely to be shot by police as unarmed whites.

So how do we explain this reality?

Paul Butler is a law professor at Georgetown, a former federal prosecutor, and the author of the 2017 book Chokehold: Policing Black Men. His work has long focused on the fundamentals of America’s criminal justice system and why they keep reproducing the same outcomes for black Americans. I talked to him about how we got here, why he thinks the criminal justice system is working exactly as designed, and why the “few bad apples” argument is complete bullshit.

A lightly edited transcript of our conversation follows.

Sean Illing

I’d like this conversation to speak as much as possible to people like me — a white guy who grew up in a small town in the South — who has no experience with any of this, whose life is untouched by this kind of threat, who may not understand why anyone would treat cops like an occupying force and is therefore skeptical of the sort of arguments you’re making.

What do you say to that person?

Paul Butler

I’m glad you started there. I saw a compelling example of this on live TV last Saturday that helps to make the point. MSNBC’s Ali Velshi was reporting live from the protest in Minneapolis, and as he was reporting, he said, “They’re starting to shoot.” The cops were starting to fire rubber bullets. And the protesters were totally nonviolent. They weren’t doing anything provocative, and the police just opened fire. And we see it all live on TV.

As he’s running away, Velshi’s shot in the leg, but he just keeps reporting. Later, after he’s retreated, he sees the cops advancing again and he looks terrified in a way he hadn’t before. That’s the impact of violent policing on African Americans — and black men disproportionately bear the cost of that.

The point of policing the hood is to demonstrate that the police officer dominates. That he’s the man, regardless of gender, that the officer is the boss, and that everybody else is subordinate. The way that that message is communicated is with fear. Fear for your physical safety. I called this “torture lite” in my book Chokehold, and some people thought that that was extreme. But I was actually thinking about a specific thing in international human rights law, and a specific evolution of torture, from the horrible pulling out of your fingernails to the way it works now — which is to make people feel both humiliated and terrified that anything could happen to them at any moment.

Sean Illing

A kind of psychological warfare —

Paul Butler

Exactly. This attitude is present in a lot of police officers who work in communities of color, and it defines the dynamic between them and the people they’re supposed to be serving. It impacts all of us. I went to a fancy college and law school; I have a good job and drive a nice car. But every time there’s a police car behind me, my heart starts beating quickly. Every black man I know has the same story. Because you just never know.

Sean Illing

That is such a wildly different dynamic than most white people have experienced. And for those people, many of them at least, there’s a reflexive dismissal of it. They’ll read this as hyperbole or anecdotal and in that sense refuse to grapple with the fundamental claim about the role law enforcement plays in black communities.

Paul Butler

Let’s think about the Floyd case. Before we get to the killing, let’s think about the arrest. The store owner called the police and said that someone had tried to pass a fake $20 bill. The police respond, and what they do is virtually impossible to imagine happening to a white person. What they do is to approach Mr. Floyd’s car like he’s a violent thug. They order Mr. Floyd and the passengers to exit the car. One officer has his hand on his gun. They put Mr. Floyd in handcuffs. When he falls to the ground, they leave him on the ground in handcuffs, and then, as the whole world knows, they hold him down by his back and knee and legs for 10 minutes until he dies. I just can’t imagine that happening to a white person over a $20 bill.

Black and brown people experience very different treatment from the police than white people do, and it’s so endemic that the police just can’t help themselves. I thought the most compelling example of that was how differently the CNN reporters were treated in Minneapolis. A white CNN reporter is basically on the same ground, doing the same thing — while cops roll up on the black reporter and arrest him, cops go to the white reporter and say, “We’d like you to move, please,” and he says, “Okay.” But he doesn’t move as far as they would like and they say, “Could you please move some more?” And he says, “Sure.”

The thing that’s so revealing about that is that it all happens on national television, at a rally about excessive force and racist policing. I could just imagine, at the roll call that morning for the officers, when they’re getting their instructions from the sergeant, the sergeant says, “Okay, guys, we know that we’re guarding this rally about police brutality and discriminatory enforcement; let’s not be racist, don’t be racist, it’s really important that we not be racist today.” And they still can’t help themselves.

Sean Illing

You say we don’t merely have two systems of justice, one for white people and one for black and brown people, but instead we have “opposite” systems of justice. And the system for black and brown people isn’t broken — it’s working exactly as designed. What does that mean?

Paul Butler

Part of the evidence that the system was designed this way, and one of the reasons it recurs over and over again, is because a lot of the conduct that people of color complain about is totally legal. So I don’t think the case against the officers in the Floyd case is a slam-dunk by any means. The defense will be that their use of force was reasonable. And they have a case to make. They don’t have a great case, given that Mr. Floyd was handcuffed, but what they will say is that he was resisting arrest and they used reasonable force to subdue him. And obviously there comes a point where the reasonableness of that force is extinguished by the fact that his body is lying limp and motionless on the ground. But up until then, I think they have an argument that what they were doing was legal.

Outside of that case, in theory, the power that police have is unreal. I have a police officer buddy who comes and visits my criminal law class, and to demonstrate how much power he has, he invites my students to go on a ride-along in his car, to see what it’s like to patrol the streets of DC. He plays a game with them called Pick That Car. He tells the student, “Pick any car that you want, and I’ll stop it.” So the student will say, “How about that white Camry over there.”

He’s a good cop. He waits until he has a legal reason. But he says that he could follow any car, and after five minutes or three blocks, the driver will commit some traffic infraction, and then under the law he has the power to stop the car, to order the driver and the passengers to get out of the car. If he has reasonable suspicion that they might be armed or dangerous, he could touch their bodies, he can frisk them, he can ask to search their car. And it’s totally legal. That’s an example of the extraordinary power that police have.

And that extraordinary power, that constitutional power, is used more aggressively against black and brown men than against white soccer moms.

Sean Illing

In a way, that gets to the heart of this. Because the difference here is how the same laws are applied differently to different people. We’re not talking about different rules for different people formally codified into law. We’re talking about the enormous discretion cops have and how, for too many reasons to count, they apply it unevenly.

Paul Butler

That’s exactly right. I know it sounds kind of conspiratorial when I say it’s designed that way, but one reason I think that is because it happens so often and it’s so predictable. And in these kinds of cases, advocates tell the Supreme Court that if you give the police this kind of power, they’re going to use it unfairly against people of color. And we have tons of data backing that up. And the Court either discounts that concern or says, “There’s nothing that we can do about it.”

So everybody knows how the police will use this power, and true enough, they do. That’s why I think that the Ferguson report, which is the report that the US Department of Justice wrote after the uprising in Ferguson, and after Michael Brown was killed, I think that’s one of the defining artifacts of our time.

Sean Illing


Paul Butler

A hundred years from now, when people want to know what it was like to be alive in 2020, the Ferguson report is one of the things they’ll look at. It’s this amazing synthesis of data and stories. The data includes the fact that every single time the police used a dog in Ferguson, they used it against a black person.

Can I give you just one quick story from the report to show you why I think it’s so revealing?

Sean Illing


Paul Butler

So there’s one story in there in which a woman calls the police because her boyfriend’s beating her up. By the time the police get there, he’s gone. The police look around the apartment and they say, “Does he live here?” And she says, “Yes, he does.” The police say, “You’re under arrest for occupancy permit violation, because his name isn’t on the lease.” When that happened to another woman in Ferguson, she said she would never call the police again, she didn’t care if she was being killed. Again, this is how the police do black people and brown people. They don’t treat white people like this, certainly not as systematically as they do black and brown people.

Sean Illing

I want to ask you about this argument that the policing problem can be reduced to “a few bad apples.” Your book is largely about this, and I’d like to know why you think it’s bullshit.

Paul Butler

For one, it’s insulting to police officers. I don’t think police officers are any more racist than law professors or doctors or anybody else. In fact, I think that some people go into that work because they want to be warriors, and that’s not constructive, so when we think about change, we need to think about guardianship as a model, not war.

But I think a lot of people go into the work because they really want to help communities, and they really want to make a difference, and this belief is based on my experience as a prosecutor working with police officers of all backgrounds and of all races. So I don’t think that police officers are especially racist. But I do think we give them tools and authority in a context that leads them to deploy it unjustly against people of color.

Sean Illing

The real question we need to answer isn’t, “Why are racist cops doing racist things?” (that question answers itself) but rather how is it that non-racist cops, or cops who set out with good intentions, succumb to perverse incentives and end up enforcing inequalities they themselves would probably reject in the abstract.

Paul Butler

Right, and I think it’s about the workplace culture. I tell the story that after I graduated from law school, I worked for a law firm for a couple of years, and then I decided I wanted to be a prosecutor. So I was lucky enough to get a job with the Department of Justice, where they have drug tests. I had been smoking weed recreationally before I joined the Justice Department. When I joined the Justice Department, because I didn’t have any trial experience, they sent me to the local prosecutor’s office in DC to learn how to try a case. You start out doing low-level cases, including, at that time, marijuana possession and marijuana distribution. I stopped smoking weed just because I knew that there were drug tests, and I didn’t want to lose my job. But I prosecuted people for smoking weed. So I understand workplace incentives, and none of us are immune to it.

The culture of law enforcement is very much a paramilitary culture. You’re part of a team and you have to have each other’s back. Part of the reason your question is so important is that we’re not just talking about white cops, we’re also talking about black cops. Police officers of color get caught up in the same loops. In hip-hop, there’s a lot of interest in black police officers, and the message you often hear is that black officers are actually worse than white officers, because they want to show off for the white cops.

So the problem is about culture, and it runs much deeper than a few racists here and there.

Sean Illing

If the problem were merely racist cops, the solution would be easy: screen for racists and remove them. But if the real problem isn’t bad cops or bad policing so much as a culture built on a racial hierarchy that law enforcement has historically protected and reinforced, then it’s hard to see a path forward.

Paul Butler

It’s a huge problem and I don’t know how to solve it, but what I do know is how to make a difference in individual cases in a way that will prevent people from getting killed or beat up, or having the law selectively applied to them. I know that there are reforms that can save lives, and even if they’re not going to crush white supremacy, if Sandra Bland and George Floyd can live rather than die, I’m cool with that on the way to transformation.

Sean Illing

What sort of reforms?

Paul Butler

In Chokehold, I argue that people tend to see the problems between black people and police in four different ways. So really quickly, the first way is that the problem is black men. It’s the way that we perform masculinity. If we would just pull up our pants, we wouldn’t have to worry about being stopped and frisked. There are quite a lot of people who think that.

The second framing is that the problem is under-enforcement of law, not over-enforcement. That what the black community needs even more than other communities is law and order. So when police selectively enforce the law in those communities, it’s actually a kind of reparations, it’s a payback for the time when 911 was a joke. And my friends who are prosecutors and police officers of color, that’s what they say. They say, “Hell yeah, I’m tougher in the hood than I am in the suburbs, because that’s my community.” That’s how they think.

Then there’s what I’d call a more liberal framing, which focuses on the relationship between black people and cops, like the problem is that they’re in a bad marriage and they just need to understand each other. This was very much the approach of the Obama administration, emphasizing the need to bring people together alongside tangible reforms like more body cameras and better training.

The fourth way of thinking about the problem is the focus on white supremacy. This is the new Jim Crow idea. Here, what people suggest is that if you only work on the police, that’s treating the symptom. But the disease will metastasize. So in this telling, it started with slavery, went to the old Jim Crow, and now it’s the new Jim Crow, enforced via a racially biased criminal justice system. And so the only way things will truly get better is to crush white supremacy.

I’m sympathetic to the new Jim Crow point of view, but at the same time, we can save lives in other ways before we crush white supremacy. That’s why I think the third framing through a liberal lens remains very useful, even if at the end of the day it’s not going to create the transformation we need, it’s worth it if it will save lives.

So in the meantime, we can make a difference by teaching cops to intervene when their peers are crossing the line, by teaching them how to deescalate, by changing our entire approach to nonviolent criminal arrests. These things are not going to bring the revolution, but they can save lives.

Sean Illing

Do you think it’s possible for us to break this cycle?

Paul Butler

To me, that’s almost a question about faith. About your belief in humanity. Martin Luther King says the arc of the moral universe bends toward justice. I hope that’s right. One of the most poignant moments of that horrific video [of Floyd’s death] is there’s a bystander who says to the cop, “Bro, he’s human.” The truth is that I don’t think those police officers saw Mr. Floyd as human. And I’m not sure that’s a problem that can be solved by a reform.

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