Eric Holder’s unpersuasive attack on the Ferguson police department, Part One

Last week, the Justice Department announced, with little fanfare, that Darren Wilson was justified in shooting Michael Brown. The Department found “no credible evidence” that Brown was attempting to surrender when Wilson shot him. So much for “Hands up, don’t shoot.” It made for good theater, but it was a lie.

Also last week, the Justice Department, with much fanfare, announced that the Ferguson police department for which Darren Wilson used to work is guilty of racist policing and, indeed, is extracting money from African-American through its law enforcement practices. Relying on this claim, Eric Holder attempted to defend the violent and lawless response of Ferguson residents to the justified shooting of Michael Brown, characterizing it as an understandable reaction to the “highly toxic environment” created by the Ferguson police over the years.

For leftists like Holder, violence and lawlessness by African-Americans are never the fault of the perpetrators.

But what about the merits of the DOJ’s report condemning the Ferguson PD? In my view, it’s the product of the left-wing mindset I just described. The report documents excessive lawlessness by African-Americans and asserts racism by the police force charged with enforcing the law. It then complains about the laws in question on the ground, in essence, that African-Americans aren’t complying with them.

This post will deal with the issue of alleged racism by the police department. A second post will consider the wisdom of changing law enforcement policy in response to the disproportionate failure of a racial group to obey the law.

Let me begin by making clear what I’m not arguing in this post. It’s not my contention that racism is absent from the Ferguson police department. Nor am I saying that racism is not a serious problem for the department. It may be. What I’m saying is that the DOJ report does not establish racism, and that therefore Holder’s blustery condemnation and threats are unfair and irresponsible.

The Justice Department finds that Blacks make up 67 percent of the population of Ferguson, but 76 percent of those with outstanding arrest warrants. Most outstanding arrest warrants stem from (a) a violation such as speeding or a parking ticket and (b) a failure to appear in court and/or pay the ticket.

There is no basis for inferring racism from the disparity between African-American representation in the general population compared to African-American representation in the population of those with outstanding arrest warrants. The disparity might be explained by Black over-representation among (a) violators of traffic and parking laws and/or (b) those who fail to appear in court or pay their fines.

With respect to speeding, DOJ found that Blacks in Ferguson represent 72 percent of those detected speeding through radar or laser verification methods. Thus, it appears that Blacks are, in fact, more likely than Whites to speed in Ferguson.

However, the DOJ report shows that Blacks receive 80 percent of speeding tickets issued as the result of more subjective policing methods, such as officer observation. Does this disparity — between 72 percent of objectively based speeding tickets and 80 percent of subjectively based ones — mean that Ferguson’s cops are discriminating against Blacks in the subjective issuance of speeding tickets?

It might. But there’s another explanation that strikes me as equally or more plausible. Those whose speeding is first detected by the naked eye, as opposed to technology, will tend to be those who drive at especially high speed. DOJ seems to be assuming that the racial composition of all speeders is about the same as those who speed egregiously.

Is this assumption warranted? Probably not. Jim Scanlan has shown that reducing the frequency of an outcome causes the more susceptible group to comprise a larger proportion of those experiencing the outcome. Ticketing only egregious speeders would reduce the frequency of speeding ticket issuance. Thus, one would expect, even absent racism, that the proportion of Blacks stopped for speeding as the result of subjective policing — presumably the egregious speeders — would be higher than the proportion of Blacks who speed.

By analogy, Scanlan has observed that if a particular group comprises a disproportionate percentage of persons with some experience in the criminal justice system, it will comprise an even more disproportionate percentage of persons with extensive experience (a more egregiously lawless group). In sum, we shouldn’t infer racism from the fact that, where Blacks comprise a disproportionate percentage of speeders, they comprise an even more disproportionate percentage of those whose speeding is obvious to the naked eye. (Again let me emphasize that racism might be the explanation, but we can’t reasonably conclude that it is.)

The DOJ report also finds that African-Americans are more than twice as likely as Whites to have their car searched during a vehicle stop in Ferguson. At the same time, they are 26 percent less likely to be found in possession of contraband.

These statistics indicate that, to a disproportionate extent, African-Americans in Ferguson are driving while possessing contraband. Otherwise, the very large racial disparity in searches of their cars would produce a correspondingly large disparity in the extent to which the searches of their cars fail to discover contraband.

Nonetheless, a racial disparity in searches that yield contraband does exist. Ideally, it would not. Ideally, searches of cars belonging to Blacks would find contraband at just about the same rate as searches of cars belonging to Whites. Then, institutional race-based bias in searches could be ruled out.

But does the disparity necessarily rule institutional race-based bias in? I don’t think so. If Blacks disproportionately drive around Ferguson with contraband, it is natural that police officers will be influenced by this tendency when it comes to deciding whose cars to search. To the extent they are thus influenced, they aren’t necessarily behaving as racists; it’s at least as likely that they are acting based on good faith perceptions about differences in likelihood of criminal conduct.

The Ferguson police may well be overestimating the actual differences. But police officers aren’t social scientists. Should officers be deemed to be acting in bad faith — i.e., to be racists — if Blacks disproportionately are driving around Ferguson with contraband and officers somewhat overestimate the extent to which this occurs?

Not in my view. In this scenario, as I see it, racism is a possibility, but it hasn’t been established.

Thus, the DOJ report is too thin a reed to support Holder’s angry denunciation of the Ferguson police department, much less suggestions that it be disbanded. Equally troubling is Holder’s response to the fact, demonstrated in the report, that Blacks in Ferguson disproportionately fail to follow ceertain laws. This will be the subject of Part Two in this series.