The Chauvin Verdict: A Good Start…Or Not

Derek Chauvin was found guilty on all charges in the heinous murder of George Floyd. It has taken me a couple days to fully process this; although the verdict was correct, it would have been no surprise to me had he been exonerated. I have had friends contact me with exclamations of joy and exultation, but I find that I have not been so moved. Part of me believes this should feel cathartic, as justice that is all too uncommon has been served. The other part of me wants this to feel banal, because justice should be the common outcome. In truth, I feel neither. The Chauvin verdict was the correct verdict, but it was also an outlier that likely changes little or less.

In any given year, there are roughly 1000 fatal shootings by police. Of course, George Floyd was not shot, but his death was a function of excessive force utilized by the restraining officers, so the overarching concept is the same. According to the  Henry A. Wallace Police Crime Database maintained by Bowling Green criminal justice professor Phillip Stinson, only 121 officers have been charged with homicide or manslaughter since 2015, with 44 (now 45) of such cases resulting in conviction. Naturally, some of this has to do with the fact that a large number of police-related shootings are justified, but the fact that only 1.6% of police fatalities are treated as possible homicides (and this number is even lower when cases such as Floyd’s, where excessive force not involving a gun was used) belies the fact that there is a reticence among prosecutors to look at police-related deaths as possible crimes.

In many cases, this is because the offending officer has actually committed no crime. The majority of state-level statutes governing the use of deadly force by law enforcement permit its use if the officer considers himself to be in imminent danger. The ostensible standard is that the perception must be reasonable, but due to the deference society generally affords the police, what is a reasonable perception to them is not necessarily the same as a reasonable perception for you and I. Doubtless, Bastiat would scoff at such an unseemly notion, but he is not responsible for writing statutory law. We often hear morbid jokes about how an officer in little to no danger feared for his life, but in a very real sense, this defense is as effective against criminal prosecution as qualified immunity is against civil. Conceptually, they are part of the same societal paradigm.

Even in states such as Minnesota, where statutes are clear regarding what constitutes imminent danger, prosecutors are not necessarily wild about the idea of bringing charges against errant officers. For one thing, their jobs rely on the work of the police, and vice versa. The two institutions are inextricably, symbiotically linked. On a related note, district attorneys are often elected officials who rely, in part, on the support of police unions, whose endorsement or lack thereof can turn the next election[i]. Voters want their prosecutors to be tough on crime, and the perception of turning on their partners in the interest of public safety can be a career-altering turn.

This last brings up a very uncomfortable truth regarding our criminal justice system; victims of police force are often members of groups the majority finds undesirable in some manner. As such, there is a presumed lack of innocence on the part of the victim in the eyes of their peers, providing perfect opportunities for the whims of officers acting in bad faith[ii]. In this sort of vicious circle, there is no incentive for prosecutors to bring charges, as the pool of potential jurors considers the actions of police justified. Moreover, a losing verdict is often the means by which suspended or terminated officers force reinstatement; if they are guilty of no crime, then they cannot be punished by their department for one.

Vicious circles are self-feeding beasts that distort the formation of equilibria, and can only be negated by virtuous circles. Some have proposed that police officers should never be tried by prosecutors from their own districts, which has some merit, but the competition between municipalities opens its own set of perverse incentives. Others posit that the prosecution of police should be a Federal matter, but this creates problems of its own. For one, murder and manslaughter, the most common charges levied against police, are matters of state law. This would blur the separation of power between Federal and state governments. Additionally, criminal violations of civil rights, which are the purview of the Justice department, are notoriously difficult cases to bring, and generally drag on for years. Thus, there is a problem of inefficiency in this proposed solution.

The root issue, however, is not the vagaries of statutory law, nor is it in which party is responsible for prosecuting offending officer. Economic sociology tells us that for all our pretense at being a society of law, and not men, the enforcement of law is society centric. Majority attitudes about the role of law enforcement in an ostensibly free society and the rights of suspected criminals – especially of those belonging to marginalized population subgroups – determine the path of law enforcement, and the rate at which bad actors are punished. If attitudes such as “he shouldn’t have resisted,” or “if he had nothing to hide, he would have complied” prevail, this conversation is entirely academic.

The very first article I wrote for EconLog was a statement on why we needed to continue discussing incidents such as George Floyd no matter how uncomfortable they might make us, and despite our fears of what they might say about our society. In a truly free, liberal, cosmopolitan society, officers of the law cannot be above the law. In a general sense, this is true of all government officials. Ethically, even if not necessarily legally, they have a fiduciary duty to safeguard the natural rights and freedoms of those under their care, especially from violation by the government they represent. This is a critical necessity for law enforcement officers, who are quite literally the hired guns responsible for enforcing government mandates.

Until the majority is willing to hold government responsible for fidelity to these principles, no amount of statutory reform will matter. No number of protests, peaceful or otherwise, will make any difference in the grand scheme of things. Unjustified police violence will continue, as bad officers will continue to have no incentive to stop. Charges will continue to be rare, and convictions even more so. Tragically, there will continue to be George Floyds to talk about.

 

[i] Human Rights Watch. (1998). Shielded from Justice: Police Brutality and Accountability in the United States. New York: Human Rights Watch.

[ii] Asit S. Panwala, The Failure of Local and Federal Prosecutors to Curb Police Brutality, 30 Fordham Urb. L.J. 639 (2002)

 


Tarnell Brown is an Atlanta based economist and public policy analyst.

Categories: Economics of Crime Incentives

READER COMMENTS

Mark Brophy
Apr 27 2021 at 6:03pm

I don’t live in Minnesota so this isn’t in my jurisdiction nor is it in the jurisdiction of most of the people who discuss it.

 

KevinDC
Apr 27 2021 at 7:39pm

I do live in Minnesota, and I think my geographical proximity to this event gives me no special qualifications to comment on it, nor would I downgrade the comments of someone else because they happened to live further away from it than me. I see no reason why legal cases and their implications ought only be discussed, analyzed, commented upon, etc, by people who live within the jurisdiction in which they occur.

Tarnell Brown
Apr 27 2021 at 8:04pm

Deflection be like that sometimes, Kevin. Nevertheless, his comment belies the larger point regarding a need for change in social attitudes.

zeke5123
Apr 28 2021 at 11:37am

The local problem is not the global problem. Making local problems global problems is the road to madness.

Your point is perfectly valid in the sense that local people should demand accountability (this presupposes there is an accountability problem). But we shouldn’t turn every local story into a national one or global story — it runs a bit into the Chinese Robber Fallacy.

KevinDC
Apr 28 2021 at 12:09pm

I don’t think he was taking a local problem and making it global. Rather, I think he was talking about a global problem and illustrating it with a local example. The global problem here is that the only people who can hold cops and prosecutors accountable for their misdeeds are…other cops and prosecutors. Of course, cops and prosecutors are hesitant (at best) to turn on one of their own, which allows the abuse of power to occur with near total impunity and near zero risk of consequences. That’s not just some quirk of the Minneapolis police department – it’s pretty much build into the legal system everywhere, and authority systems generally.

Mike Huemer made a similar argument, illustrating it at first with how sometimes students will protest grades their professor gave them, and if they protest enough the chair of a department will ask a different professor to re-grade the paper. Forgive the lengthy quote, but I think the general point is worth reiterating:

The chair tells me the paper received a C, and then asks me what grade I think it deserves. Unless this paper is a work of f—ing genius, I’m probably going to say C or lower.

Why? I don’t know this kid from Adam. I’ve never interacted with him before, and I’ll never deal with him again in my life. The other professor, on the other hand, I’ve probably known for years, perhaps gone out to dinner with, and I’ll be interacting with for perhaps another 20 years. Plus, I am fully sensitive to the challenges faced by a professor trying to deal with demanding but less-than-diligent students, and I can fully empathize with the professor’s plight. So if you think I’m going to side with the random student over the professor, you’re dreaming. Everyone except the student would know this from the start.

Now, that is why authority figures get away with almost anything. Because the only people to punish them are usually other authority figures from the same organization. Their friends that they’ve been working with for the last decade. People who can fully and vividly empathize with their plight. People who can expect a favor returned if they themselves are in a similar spot in the future.

Thus: if a police officer is suspected of using excessive force against a suspect, he’s going to be investigated by other police. The investigators might know the cop in question personally. They can probably fully empathize with the plight of a cop. Unless this cop just murdered a baby to feast on its tender flesh, they’re probably going to be a lot more sympathetic to the cop than to some ‘scumbag’ crime suspect.

There is a similar case when, e.g., university administrators are investigated for misconduct, as in this case: http://www.denverpost.com/2017/06/12/cu-punishments-after-handling-joe-tumpkin-case/

They’re then punished by . . . other administrators. People whom they’ve known personally for years, they may have gone to each other’s houses for dinner, and they’re expecting to interact with each other for many years to come. You don’t hurt your friends. Or, if you’re forced to do so, you give them the lightest slap on the wrist that you can possibly get away with.

Tarnell Brown
Apr 28 2021 at 12:12pm

Chinese robber fallacy: Some police officers engage in unjustified violence, including murder. All cops are abusive murderers.

Good faith explicacation: Decades of studies show that police misonduct, not limited to but including violence, is fairly common act that particular population. Moreover, incentives to reform such bad behaviors are largely absent. This is a society-wide problem that requires further study in search of viable solutions.

Just because a thing did not happen in your neighborhood does not mean it is a strictly local issue.

zeke5123
Apr 28 2021 at 2:53pm

I think you go a bit too far.

Many states have many different procedures for investigating police killings (e.g., different departments, different DA, etc.). How big of a problem police accountability is also differs based on location.

You can make an abstract point (i.e., entity A should not investigate entity A for alleged wrong doings). But the practicality of how this matters, in what way this matters, in how to implement it, etc. are all a local issue. The post seems to confuse this point by specifically stating the law enforcement is a societal issue influenced by attitudes of society. The author is bringing this all up in the example of Floyd — a mega global story and seemingly is arguing for a global change. I think that is entirely wrong headed.

Phil H
Apr 27 2021 at 9:22pm

I completely disagree with this as a matter of institutional and civic design.

TB says: “Majority attitudes…determine the path of law enforcement…Until the majority is willing to [X] no amount of statutory reform will matter.”

If that is truly the case, then we’re all stuffed. For a few reasons: (1) Jurisprudence is hard – even if there are “correct” answers, it’s impractical to expect anyone but judges to know them; (2) jurisprudence is controversial – in many areas, there may be no correct answers; (3) I myself have little faith in the ability or willingness of the average Jo to think these issues through.

The whole reason that laws and the edifice of law enforcement exists is precisely to get us out of the trap where “Majority attitudes…determine the path of law enforcement.” That’s just mob rule. Institutional design can build in stable expectations, which is what enables people to plan and live their lives in some freedom from fear and uncertainty. You might think that the current system is a bad place to start, and want to start from scratch (e.g. defund the police); but whatever you want, you’re going to need a system. Because the utopia of a society full of perfect people isn’t going happen.

(It may be possible to practically eliminate racism; but even then, average people aren’t going to be better legal scholars.)

Tarnell Brown
Apr 27 2021 at 9:48pm

Even in the wake of this verdict, just the other day, a man sitting in a car with his hands on the steering wheel was killed by police. For certain marginalized segments of society, institutional design has not built in stable expectations, providing freedom from uncertainty and fear. Therefore, the design is flawed and hardly worth defending.

People don’t need to understand the intricacies of jurisprudence in order for meaningful change in the way policing is done to occur. Pretending as if edifice of law negates the authority of majority approval in generating institutional incentives is ostrich with head in sand analysis.

All “the people” need to understand is that police have a specific role, and that role is not to operate as spot judges, juries and executioners. As such, and officer that fails this standard has abused the power of his public trust, and as an officer of government, must be held to a higher standard.

This is a simple enough concept for the “average Joe” to comprehend. Personally, I think most do and don’t care, but that is again a personal opinion.

 

Nothing in this piece is suggestive of a belief in Utopia or the lack of some systematic structure. I do not understand why so many individuals default to such observations when the current, obviously flawed system is critiqued.

Phil H
Apr 29 2021 at 12:08am

“All “the people” need to understand is that police have a specific role, and that role is not to operate as spot judges, juries and executioners.”

I think this is an error. I don’t think the police officers involved in those incidents did those things because they hold that kind of erroneous belief. You’re misdiagnosing the problem. It’s an even bigger misdiagnosis if you think that all those crowds who protested against BLM hold the erroneous belief that “police should be judges, juries and executioners.”

“Nothing in this piece is suggestive of a belief in Utopia…”

No, but you do call for a higher level of public understanding of the correct role of the police. I’m saying, I think that’s a *much harder task* than just reforming the police. Institutional reform can be carried out fairly effectively by small groups of determined people. That seems to me to be a reasonable, achievable goal, and should be one of the main focuses of political effort. (General consciousness-raising is also good, but I don’t think it’s going to be the thing that makes the difference.)

TMC
Apr 29 2021 at 4:55pm

“a man sitting in a car with his hands on the steering wheel was killed by police.”

Andrew Brown was trying to run over the cops.

https://townhall.com/tipsheet/mattvespa/2021/04/28/breaking-nc-district-attorney-says-bodycam-footage-shows-andrew-brown-trying-to-run-over-deputies-n2588673

 

 

Tarnell Brown
May 3 2021 at 1:25am

Contrary to Townhall’s sensationalistic and irresponsible clickbait headline, no bodycam footage has been released whereby we can make that determination. What we have is two sets of attorneys who have been privy to footage saying two different things,

Maniel
Apr 27 2021 at 10:05pm

Mr. Brown,

My take is that the trial and the verdict represent a good start in a difficult realm. Policing is dangerous work, however given the resources, a well-trained police force ideally raises the level of safety in the communities they serve. From a legal perspective, to convict anyone of a felony, requires conclusive evidence. In the case at hand, a young lady with poise and awareness demonstrated the power of today’s ubiquitous digital cameras to gather such evidence. That and the prosecutor’s ability to use that evidence yielded unanimous verdicts of officer Chauvin’s guilt with respect to the charges.

You have posted to an economics website, so it is fair to examine the implications from an economic perspective. Safety is not the only measure of community well-being. If I never leave my home, I appear to be relatively safe, but there are quality-of-life costs to “house arrest.” Another measure is cost: how many law-enforcement officers do we need and how much must we pay for their time, equipment, training, and care (in the event of injury or death)? And how much will any damage our officers do cost us in legal expenses and degraded safety?

Clearly, as has been known forever, our police must be very well trained to minimize such damage and to maximize the probability of resolving dangerous situations successfully. In that regard, the use of force must be subject to rigorous protocols and processes. So far so good, but we can’t expect young ladies with digital cameras to be present at every police/public encounter to document that all protocols were followed according to best practices.

However, and it is here that I see reason for optimism, we now have irrefutable proof of the value of requiring police to wear body cameras before and during such encounters and to make their photo evidence available afterwards. Just as police seldom forget their sidearms or badges, it is essential that they enter each confrontation with camera fully charged and operational. In my opinion, once such videos are routinely shared within and among police departments and with state and local governments, we are likely to see more effective policing protocols, more trust between police and the communities they serve, lower risks to police, and fewer officer crimes. One more note: in competitive sports teams and in business, we rise or fall as teams. In the Chauvin/Floyd case, the Chauvin team failed.

David Henderson
Apr 28 2021 at 1:40pm

To put that in perspective, though, policing is less dangerous than farming.

zeke5123
Apr 28 2021 at 2:56pm

Police safety is dynamic to public pressure in ways that farming is not. That is, if police UoF rules change, then (i) either their safety levels change or (ii) police respond to lower levels of safety by pulling back (i.e.., so called Ferguson effect) thereby permitting more crime.

This stuff is hard to figure out (perhaps it does make sense to go back to just first principles), but TINSTAAFL

Shane L
Apr 28 2021 at 4:46am

This is slightly tangential to Tarnell’s interesting post, but the reform of Northern Ireland’s police force in the 1990s-2000s may be of interest to Americans concerned with police reform.

The original Royal Ulster Constabulary was dominated by the Protestant majority and colluded in some cases with Loyalist (British nationalist) attacks on Catholics. As such, it was distrusted by many Catholics. The civil rights movement undertaken by Catholics in the 1960s was inspired by the black civil rights movement of the US, and was met with violent repression from the RUC.

The Good Friday Agreement that brought an end to the Provisional IRA’s violent campaign included provisions for the reform of the RUC. The new police service undertook a deliberate campaign of recruitment from Catholics, increasing the number of Catholic officers from 8% in 1998 to “nearly one third” in 2020.

The name was changed from Royal Ulster Constabulary to the Police Service of Northern Ireland (PSNI). The emblem changed; the original was a harp topped by a crown, seeming to represent Northern Ireland’s domination by the British crown. The new emblem carries “the scales of justice (representing equality and justice), an olive branch (representing peace), a torch (representing enlightenment and new beginning), the crown (representing British sovereignty), the harp (the traditional Irish symbol), and the shamrock (a traditional Irish symbol with associations to St. Patrick)”.

There is a brief 2020 article here and a substantial 2017 report
from the Naval Postgraduate School arguing that Northern Irish policing reform “provides a model for policy makers in the United States”.

Tarnell S Brown
Apr 28 2021 at 7:45am

Thank you, Shane, for this particularly excellent tangent. I will look further into the Northern Ireland example.

Thomas Lee Hutcheson
Apr 28 2021 at 5:40am

True enough, but prosecution or not for incidents of excessive (?) force are not the main point. A much larger part of the problem is having armed officers in unnecessary interactions with the public.

john hare
Apr 28 2021 at 4:51pm

I have been on both sides of the situation at different times. Helped hold an idiot that attacked an off duty  cop in front of several witnesses. Had a friend do 38 days in jail before getting a bail hearing. (he was innocent) In the early 70s one was arrested after a theft when it was known that someone else did it, news reports included “suspect in custody”.  Two black and one white.

 

Floccina
Apr 29 2021 at 11:40am

Police in the USA kill far more people than is necessary. The evidence looks like they could reduce killing to only 100 per year without there being a significant increase in danger to police or the public. I like Robin Hanson’s idea of legal liability insurance which is an attempt to address problems created by the reticence among prosecutors to look at police-related deaths as possible crimes. I also think we should legalize all victimless crime.

But to me these 2 points seem in conflict:

his death was a function of excessive force utilized by the restraining officers,

and

Derek Chauvin was found guilty on all charges in the heinous murder of George Floyd. It has taken me a couple days to fully process this; although the verdict was correct

Use of excessive force seems quite different than heinous murder.

Also it seems to me that seeing that, the Minneapolis Police Department approved of the technique used by Chauvin, and he had used it before without being reprimanded, that the police chief should have been on trial. The higher up the person charged the more likely you’ll get the change that we want.

It might be argued that it was above Chauvin’s pay grade to know that someone might die from the maneuver. Maybe involuntary manslaughter but to contend Chauvin intentional killed Floyd seems a stretch.

I’d have liked Chauvin to show more mercy to Floyd but I’d also like the system to show more mercy to Chauvin.

Also before the 1970’s, black neighborhoods were lightly policed and I am not convinced that there was more violence back then, so perhaps we should back off.

AMT
Apr 29 2021 at 3:32pm

They are not mutually exclusive. A murder committed by a police officer would be, by definition, the most excessive force that could be used…

Chauvin failed to follow training, used ‘excessive’ force during Floyd arrest, experts testify – The Washington Post

Several experts said with certainty that Chauvin’s neck restraint of Floyd was against guidance. “We tell officers to stay away from the neck when possible,” said Minneapolis Police Lt. Johnny Mercil, the use-of-force coordinator for the department. He called the restraint unauthorized and described it as “active aggression.”

TMC
Apr 29 2021 at 4:46pm

During the trial, the prosecutor’s witness, Minn’s top expert on training, testified that they use this method, and he’s used it himself.

Floccina
Apr 30 2021 at 1:29pm

Second-degree murder is an intentional killing, but is less serious than first-degree murder because some malicious factors aren’t present. Both first- and second-degree murder in Minnesota have aspects of the “felony murder rule.” Felony murder is when you kill a person during the commission of another felony, such as rape or burglary.

So the jury was saying that there was no reasonable doubt that Chauvin was trying to kill Floyd. That seems a stretch. Something good may come out of this, fewer police killing but I think Chauvin should have only been convicted of manslaughter and the Police chief, the mayor, and maybe even the voters weaseled out of just punishment. Too much punching down, could be classist.

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