Lessons of the Cooper Affair

Posted in: Criminal Law

Lately, I’ve been thinking about Amy Cooper, the young woman who called the police on Christian Cooper, the birdwatcher in the Ramble, a quiet pocket of Central Park. As the whole country knows, Ms. Cooper did not have her dog on a leash, as required by park rules. Her dog was snuffling around in the bushes, which made birdwatching impossible. Mr. Cooper (no relation) asked her to leash her hound, but she refused.

He produced a bag of dog treats to lure the dog out of the bushes and, knowing that dog owners don’t usually take kindly to a stranger feeding treats to their dog, said something to the effect that he was going to do something she wouldn’t like. This set Ms. Cooper into a tizzy. As Mr. Cooper filmed her meltdown, she screamed and threatened to call the police. When Mr. Cooper calmly invited her to do just that, she did, frantically summoning them to the Ramble to rescue her and her dog from a threatening African American man. By the time the police arrived, they were both gone.

Mr. Cooper’s video eventually found its way online, and as we know, things did not end well for Ms. Cooper. She quickly lost her job and briefly lost her dog. She has apologized profusely, but that has not prevented her from being held up to widespread ridicule and calumny. The times being what they are, death threats ensued.

The entire imbroglio presents an opportunity to expand on two of my recent essays: the narrow but legitimate role of policing, and my unyielding refusal to participate in demonization.


In my last essay, I suggested there was only one thing that a cop alone can do: she can lawfully restrict another person’s freedom of movement. That is, she can force a person to move from Point A to Point B, or prevent them from moving from Point B to Point C. Though a few people balked at such a narrow conception of policing, their objections mostly reflected an uncritical attachment to the status quo rather than an observation about what is strictly necessary.

Still, while the essential role for policing is narrow, it is not insignificant, as the Cooper affair makes plain. At the time of the call, all law enforcement knew is that a woman claimed, with terror in her voice, that she and her dog were being threatened by an unknown man. We now know that was untrue, but of course the police dispatcher could not have known that at the time of the call. Faced with that situation, do we want someone empowered to restrict movement to respond?

I think so. In fact, it seems a quintessential occasion for the police. To be sure, in any given case, a woman being threatened may want to call someone in lieu of the police. For a variety of reasons, she might want to summon a friend, family member, or representative of a community group. Obviously, she should have that privilege. In fact, she already does; no one has to call the police, and many people don’t. Yet if those alternatives are not available, a woman being threatened by an unknown man should be able to call someone lawfully empowered to restrict movement.

But of course, this was not the end of the story. Last week, the Manhattan District Attorney charged Ms. Cooper with filing a false police report, a misdemeanor punishable by up to a year in jail. To his great credit, Mr. Cooper—who has been the very picture of class throughout the entire affair—refuses to cooperate with the prosecution. In an age of welcome sensitivity to longstanding racial inequity in the criminal justice system, how should we evaluate these charges?


The justification for American penal policy toggles back and forth between consequentialism and retributivism. The consequentialist believes that punishment is a harm, and therefore cannot be inflicted unless it serves some greater social good, like deterrence. When you hear someone say that a prisoner has been completely rehabilitated, and that his continued incarceration costs a fortune and imposes great burdens on him and his family, you are listening to a consequentialist. The retributivist, by contrast, maintains that wrongdoers must be punished, though they insist that the punishment cannot go beyond that which is warranted by the wrong. So a retributivist might respond to our hypothetical consequentialist with an indifferent shrug. “I don’t care about either his rehabilitation or his family; he committed a serious crime and still deserves to be in prison.”

The retributivist and the consequentialist simply speak different languages, and philosophers have argued for centuries about which is better, frequently talking past each other. Regular people, however, tend to be naturally bilingual, and often mash the two languages together, sometimes in a single sentence. A prosecutor might say, for instance, that a person needs to be sent away for a long time both because he deserves it (speaking the language of retributivism), and because his sentence will “send a signal” that conduct like this will not be tolerated (shifting into consequentialism). No one needs a philosopher to translate.

But surely the Cooper affair ought to be an occasion where the consequentialist and the retributivist can agree: enough is enough. Consequentialists ask what good will come from additional punishment. Ms. Cooper has undoubtedly learned her lesson, and her contrition is by all accounts sincere. She has been held up to scorn and ridicule, serving as an example to others who might be inclined to jump too quickly to a racist conclusion. Adding a misdemeanor conviction atop the public shaming she has endured seems unlikely to have any additional social benefit.

The retributivist should be equally satisfied. Ms. Cooper lost her job. She (temporarily) lost her dog. And she lost that most precious commodity, the true value of which is only truly appreciated when it is gone: anonymity. A misdemeanor prosecution and conviction would certainly add to her burdens, but the question is not whether we can heap more woe upon her; sadly, the criminal justice system can always find a way to increase a person’s misery. Instead, the retributivist asks whether additional punishment is warranted in light of what she deserves and has already endured. This is unavoidably subjective, but given Ms. Cooper’s history, she will not serve time if she is convicted. At most, she will be ordered to reflect on her wrong, pay a fine, and perform some type of worthy service to the community. All of that, however, could be achieved through a restorative process that did not involve the criminal justice system. Prosecution and conviction, therefore, is merely gratuitous.

But what of the racial comeuppance? Some wonder why a privileged white woman should escape prosecution. Perhaps Ms. Cooper should finally get a taste of what people of color have endured for decades, as if the criminal justice system could be used to balance the scales of racial justice. Criminal justice reformers should reject this out of hand. An unjust prosecution does not become just by putting the shoe on the other foot, and we do not fix a corrupt system by using it more.

In the end, one suspects the real function of her prosecution is not to vindicate the interests of society, which have been amply served already. Nor is it to ensure that she gets what is coming to her, since she has already gotten it, and anything more could be achieved without a prosecution. The purpose is to hold Ms. Cooper up as a symbol of racism. It is intended to cast her out, formally and officially, from the group, and in that way to humiliate her even more. This I will never support. There is no them. There is only us. I will never endorse an action whose apparent purpose is to separate an imaginary them from an idealized us.

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