Have You Seen the Tape?

Posted in: Criminal Law

In my last column, I described the determination by prominent criminal justice reformers to avoid any discussion of race in their narratives. I think this a mistake and promised to use this column to chat about the groups that were pushing back against this practice. They are trying to develop a reform narrative that does not ignore race, but instead incorporates it into a productive conversation that transcends black versus white.

Then we learned about Walter Scott, whose death made plain—in ways that words cannot—that we ignore race at our peril and shame.

Though few people defend Officer Slager, not everyone draws the same lesson from his contemptible behavior. Like the dress that was either white and gold or blue and black, people who have seen the footage of Scott’s surreptitiously recorded murder have tended to see two different things.

For many black viewers, Officer Slager’s staggering brazenness—shooting an unarmed black man in the back as he fled from a traffic stop, in public and broad daylight, while at least one witness stood close by—is simply the apotheosis of an attitude they see and experience scores of times every day, which all too often begins with harassment and ends in violence. And the fact that most of these encounters do not end with gunshots does not make them different in kind from those that do.

On the other hand, for most whites who watch the video, Slager’s inexcusable callousness is so shocking and so at odds with the behavior they have come to expect from law enforcement, that they naturally categorize it as anomalous. After all, police shootings of unarmed black men, while far too frequent, are thankfully quite rare, given the millions of daily interactions between police and black citizens nationwide.

And there you have it: Is the shooting of Walter Scott merely a point along a spectrum, or an inexplicable leap beyond the pale from an otherwise acceptable norm? Like the dress, it depends on whom you ask.

But unlike with the dress, can’t they both be right? Can the murder of Walter Scott be both representative and exceptional at the same time? Yes. And unless we understand how and why this is so, we cannot hope for meaningful criminal justice reform.


As I have described in another column, we can imagine two very different criminal justice systems. In one, the members of society are presumptively innocent and equal, free to go about their affairs unmolested by the government to the maximum extent possible. In the other, the citizenry is composed of “us” and “them,” and it is imperative that someone be empowered to protect the former from the latter.

If we lived in the first world, we would design a system that, as a rule, restrained the constable so as to liberate the people. We would be parsimonious with the government’s power to search, seize, prosecute, and punish. As importantly, we would condition the officer to view all people as genuinely equal, in fact and law. We would admonish him to ignore incidental or irrelevant differences, and encourage him to treat everyone with the same respect he would give to a member of his own family. Mistakes would inevitably happen, but we would tolerate them as the acceptable cost of our particular orientation.

But if we lived in the second world, we would design a system that unleashed the constable so as to empower him to protect some of us from the rest. We would be profligate with the government’s power to control perceived threats. As importantly, we would condition officers to view some people as suspicious in order to incapacitate wrongdoers before mayhem struck, and encourage the police to devote extra resources to ensnare as many of “them” as possible. Mistakes would once again be inevitable, but we would tolerate them as the price we pay for order.

For the past fifty years, we have lived in the second world. Since at least the late 1960s, Democrats and Republicans in all three branches of the federal government and all fifty states have steadily reshaped every step in the criminal justice system—from policing, prosecution, and the rights of the accused to sentencing, corrections, and post-prison collateral consequences. No stage in the system has gone untouched, and at each step, policymakers have been animated by one goal: to enlarge the government’s power to monitor, search, stop, arrest, prosecute, imprison, and impose continuing burdens on those believed to fall outside the magic circle that separates “us” from “them.”

Observers often make the mistake of examining only part of the process, and suppose that it can be repaired independent of the rest. But this is like trying to patch only one hole in a sinking ship. It is vitally important to see the system as a whole, since each part affects the others, and all have acquired their current shape as a result of demands placed upon them over the course of five long decades. We call it the criminal justice system for a reason.

And in this system, law enforcement has been forced into an impossible situation. We ask it to deliver what no society has ever achieved—complete safety—and rebuke it unfairly when it fails. Yet at the same time, we launch ideological wars against mythical demons that do not so much prowl the streets as haunt the imagination, wars that continue long after their ostensible justification has been forgotten.

So that law enforcement may “win” these wars, we have bestowed upon it a very particular set of weapons, which we dignify as “law.” Thus, any person who flees from the police is for that reason alone a suspect, but no suspect is protected by the Constitution until he is caught. If you make what an officer might later describe as a “furtive movement,” he may stop you, without probable cause to believe you have committed a crime. The police may ask to search you, your car, your parcels, and your home, but need not tell you that you may decline. Any violation of the law, no matter how trivial, can be the subject of a full custodial arrest.

This list can be expanded for as long as it takes to recount nearly 50 years of doctrine. And long before we have finished the list, we will have noticed that law enforcement trains its weapons overwhelmingly against people of color, without regard to rapidly falling crime rates. To this, the law yawns with indifference—that is, unless we can make the practically impossible showing that the individual officer acted with racist intent, even though the problem typically originates not with the officer but with the system itself.

Far worse, we have extended these weapons to law enforcement at the same time we have altered its character. We have steadily militarized law enforcement, not just in its equipment but in its training and attitude. We have glorified a warrior mentality that makes disobedience to authority an invitation to extra-judicial punishment, of which violence is merely the most extreme form. In many departments, a militarized culture pairs with the mandate to win unwinnable wars to make law enforcement seem like an invading army and the community as conquered territory.

And then we express shock when we encounter an Officer Slager, who, by a lethal combination of personal shortcomings and situational stress, takes a step too far.

Of course it is true that most officers do not shoot unarmed civilians in the back as they flee from the scene of a traffic stop. In that respect, Officer Slager is indeed an exception. But it is no less true that Slager—like every officer in the United States and every participant in the criminal justice system—came of age, attended school, and has worked for their entire career in a culture hell-bent on deploying the power of the government to separate “us” from “them.”

To believe that Officer Slager is an exception, therefore, rather than a product of the system we have created, you have to ignore what we have done to law enforcement over the past five decades. You have to turn a blind eye to the demands we have made and the power we have bestowed. You have to pretend we have not distorted its operation with perverse incentives. In short, you have to convince yourself that criminal justice is unlike any other system in American life and that its parts operate untouched by each other and the world around it.

Or, you can work to change the system.

  • ingeborg oppenheimer

    the title of this article should be “racial profiling”. that would provide the message using fewer words. articles like this bring to mind an experience i had eons ago while waiting on a line at an nyc agency to apply for a promotional exam. two young guys behind me were enthusing about joining the police force [the exam they were evidently on line for] and having guns in their possession; they sounded like 8-year-olds playing cops and robbers. the chill i had listening to their chatter has not left me in the years since then. i wonder how many cops-and-robbers players are among our nation’s law enforcement personnel.

  • dg

    We are becoming an occupied nation, occupied not by a foreign military but our own militarized police force.

  • tuckerfan

    Well said, and an a cogent argument. I’d love to see your article get much wider circulation.

  • Race has nothing to do with the Scott shooting. Scott was running off with the drugs that Slager had just given him the money for (or with the money that Slager had just given him the drugs for).

    Slager would have been in trouble big time (and also out a lot of money) if Scott had gotten away. This is the BEST explanation of why Slager shot him down with all the rounds in his pistol.

  • usedtobeconservative

    “American” law is a mode of racist, colonialist oppression imposed on Africans in the West. Quite simply, “the law” cannot be applied to Blacks in a non-racist, non-hegemonic manner. Africans in America are beyond the law, beyond good and evil. Anyone who says otherwise is complicit with genocide-by-police.