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)