Aggressively Defending My Clients Since 1990


On Behalf of | Aug 12, 2018 | Firm News

The mind is a curious instrument.  It is by the workings of our mind that we assign things value or certainty.  For instance, we all know that 2+2=4, right?  René Descartes the French philosopher, mathematician, and scientist who has been dubbed the father of modern Western philosophy might disagree with you.  In his work entitled Meditations on First Philosophy, Descartes explains that realm of pure ideas considers that self-evident idea such as two plus two equals four may, in fact, have no reality outside the mind. According to the First Meditation (1641), the standard of truth is self-evidence of clear and distinct ideas. However, Descartes questions the correspondence of these ideas to reality.  This is illustrated by Honoré de Balzac’s novel Séraphîta (1834) which contains the following passage:

Thus, you will never find in all nature two identical objects; in the natural order, therefore, two and two can never make four, for, to attain that result, we must combine units that are exactly alike, and you know that it is impossible to find two leaves alike on the same tree, or two identical individuals in the same species of tree.
That axiom of your numeration, false in visible nature, is false likewise in the invisible universe of your abstractions, where the same variety is found in your ideas, which are the objects of the visible world extended by their interrelations; indeed, the differences are more striking there than elsewhere.

How a government can play with numbers to have them mean whatever they need at the moment is clearly illustrated in George Orwell, Nineteen Eighty-Four.  In the novel, the equation 2+2 =5 is used as an example of an obviously false dogma that one may be required to believe, similar to other obviously false slogans promoted by the government in the novel.  Orwell’s protagonist, Winston Smith, uses the phrase to wonder if the State might declare “two plus two equals five” as a fact; he ponders whether, if everybody believes it, that makes it true. The Inner Party interrogator of thought-criminals, O’Brien, says of the mathematically false statement that control over physical reality is unimportant; so long as one controls one’s own perceptions to what the Party wills, then any corporeal act is possible, in accordance with the principles of doublethink (“Sometimes they are five. Sometimes they are three. Sometimes they are all of them at once”).

The point of this mental exercise is to show that numbers are not the absolute truths we believe them to be.  All too often, numbers used in the real world are but window dressing to some moral or social conclusion we have already drawn.

Take for instance Florida Volusia County Sheriff Bob Vogel who denied that race played any role in his deputies’ decisions on whom to stop, suggesting instead that whites are simply less likely than African‑Americans or Hispanics to be transporting drug money.  See, Steve Berry & Jeff Brazil, “Blacks, Hispanics Big Losers in Cash Seizures: A Review of Volusia Sheriff’s Records Shows that Minorities are the Targets in 90 Percent of Cash Seizures Without Arrests, Orlando Sentinel, June 15, 1992, at A1.

Police Chief Flynn commits the Milwaukee Police Department to an unconscious bias when doing stop and frisks.  “People that live in disadvantaged communities plagued by crime expect the cops to do something about it. And what we do is intervene. We stop cars. We stop individuals. We stop suspects and we attempt to lower the amounts of violence,” Flynn said  Racial data of Milwaukee police stops released; Department continues to collect data despite overturned law (WISN May 10, 2012).  In fact, Police Chief Flynn has gone on record to encourage his police officers[1] to stop innocent people to maintain law and order under his “targeted crime-fighting approach.”  Police Chief Flynn has said: “Yes, of course we are going to stop lots of innocent people.”

Much like Vogel, officers who are accused of disproportionately targeting African‑Americans or other minorities typically defend their conduct by citing statistics that show higher rates of crime and arrests among minorities. See, “Developments in the Law‑‑Race and the Criminal Process, Racial Discrimination on the Beat: Extending the Racial Critique to Police Conduct,” 101 HARV. L. REV. 1494, 1496 (1988) (“[P]olice defend the use of race as a basis for forming suspicion precisely because of racially disparate arrest patterns: because members of racial minorities commit more crimes, police argue, it is not invidious discrimination to treat minorities differently.”).
The questionable tendency to seek justification in disproportionate arrest statistics has had the unfortunate effect of perpetuating a fallacy, generating more unbalanced arrest patterns that consequently provide a basis for continued selective enforcement.  101 HARV. L. REV. at 1508-09.  This creates a “separate but equal” criminal code- one for blacks and one for whites.  Thus a Presidential Council recently concluded:

Discriminatory behavior on the part of police and elsewhere in the criminal justice system may contribute to blacks’ high representation in arrests, convictions, and prison admissions. Changing America: Indicators of Social and Economic Well-Being by Race and Hispanic Origin (Council of Economic Advisors For the President’s Initiative on Race, September, 1998) 57

The problem of the self-fulfilling prophecy and profiling was addressed by the Attorney General of the State of New Jersey.  Attorney General Peter Verniero, Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling(April 20, 1999)(Verniero Report).  After first explaining that racial profiling is a national problem, the report demonstrated the tautological nature of using proactive arrest numbers:

[S]ome law enforcement executives have argued that it is appropriate for police officers on patrol to rely upon racial characteristics provided that objective crime trend analysis validates the use of these characteristics as risk factors in predicting and responding to criminal activity…Many of the facts that are relied upon to support the relevance of race and ethnicity in crime trend analysis, however, only demonstrate the flawed logic of racial profiling, which largely reflects a priori stereotypes that minority citizens are more likely than whites to be engaged in certain forms of criminal activity.  This form of scientific analysis, in other words, is hardly objective… some of the numbers they rely upon are self-selected and thus inherently misleading.  Verniero Report at 65, 66.
The Verniero report proceeds to explain that the fact that a disproportionate percentage of drug arrests are minorities does not mean that any particular minority citizen is more likely than a non-minority citizen to be committing a drug offense. Verniero Report at 67-70.  The report than states:

To the extent that [] police and other law enforcement agencies arrest minority motorists more frequently based on stereotypes, these events, in turn, generate statistics that confirm higher crime rates among minorities, which in turn, reinforces the underpinnings of the very stereotypes that gave rise to the initial stops.  In short, police officers may be subjecting minority citizens to heightened scrutiny and more probing investigative tactics that lead to more arrests that are then used to justify those same tactics.  This insidious cycle has served to create an ever-widing gap in the perception of fairness that persons of color and whites have about law enforcement and the criminal justice system…[U]sing profiles that rely on racial or ethnic stereotypes is no better, and in many respects is far worse, than allowing individual officers to rely on inchoate and unparticularized suspicions or hunches. Verniero Report at 70-72.

Ah hah! You may say.  How do we know if these disproportionate numbers are legitimate because of African American crime rates or an illegitimate product of discrimination in the criminal justice system.  To make that distinction one must compare the numbers of Black Americans in prison with the number of Black Americans who commit crime.  If Black Americans are in prison in higher proportion to their crime rate, they are victims of discrimination in the criminal justice system.

The National Criminal Justice Commission made this comparison.  After two years of study and research by a diverse panel of experts, the Commission concluded:

Relative to population size, about five times as many African-Americans as whites get arrested for the serious index crimes of murder, rape, robbery, and aggravated assault.  About three times as many African-Americans as whites get arrested for less serious crimes, which make up the bulk of arrests and currently flood the criminal justice system.  If after arrest there were no racial bias in the criminal justice system, the racial makeup of the prison population should at least roughly reflect the racial disparity in arrest rates – if three times as many African-Americans get arrested for less serious crimes, then there should be roughly three times as many African-Americans per capita in prison for those crimes.  But the racial difference among African-Americans and whites in prison is overwhelmingly wider than arrest rates suggest it should be absent racial bias.  There are seven African-American to each white in prison…Most studies reveal what most police officers will casually admit: that race is used as a factor when the police decide to follow, detain, search, or arrest…To justify the use of race in forming this suspicion, these officers might point to racial disparities in arrest patterns: if minorities get arrested more often, they argue, then minorities must be committing more crime.  This is a self-fulfilling statistical prophecy: racial stereotypes influence police to arrest minorities, thereby creating the arrest statistics needed to justify the racial stereotype.  Steven R. Donziger, Ed., The Real War on Crime: The Report of the National Criminal Justice Commission (Harper Perennial 1996) 107-09.  Emphasis original.

Clearly, all arrest statistics do is reinforce sterotypes and agendas already in place by policy-makers.  They do nothing more than prove that 2+2 can equal 5.

[1] The old adage “So the station…so the street” describes how the values demonstrated inside the organization have a powerful influence on police behavior in the community.  The way police leaders exercise their power inside the organization signals to officers how they are expected to use their power on the street.  So if the Milwaukee Police Chief makes a statement that lots of innocent people are going to be stopped in Milwaukee, individual officers will stop lots of innocent people in Milwaukee.  Rahr, Sue and Stephen K. Rice, From Warriors to Guardians: Recommitting American Police Culture to Democratic Ideals. New Perspectives in Policing Bulletin. Washington, D.C.: U.S. Department of Justice, National Institute of Justice, 2015. NCJ 248654.  Both Ms. Rahr, former King County Sheriff, Seattle, Washington, and Police Chief Flynn were members of the Executive Session on Policing and Public Safety who sponsored this paper.