Criminal Justice Mythology


Suppose four police officers went to a man’s home, by invitation, to talk to him about a serious, violent crime. Three officers entered and the other watched the door. They talked to the man from about 7:30 p.m. until after midnight, at which point there was some sort of scuffle and the man who invited the officers in, who was unarmed, was shot seven times and killed.

In the ensuing days, differing accounts of what happened leaked out from law enforcement sources. In the end, there were neither criminal charges nor administrative discipline. The officer who shot the unarmed man in his own home said that he, the officer, did it because he feared for his life.

We’ve been hearing lots of stories about fearful law enforcement officers. A 50-year-old deaf wood carver from the Nuu-chah-nulth First Nation shot while walking on the street with the tools of his trade, wood and a carving knife. A black teenager jaywalking. A 16-year-old Mexican walking on the Mexican side of the border shot eight times in the back by Border Patrol agents who claimed he threw a rock at them. A black 12-year-old by himself with a toy pistol in a public park. A black man who picked up a pellet gun in the store where it was for sale. A black man selling “loosies”—untaxed single cigarettes. All dead at the hands of law enforcement, all deaths justified in the eyes of the criminal law.

At least, the state grand juries or prosecutors ruled that no criminal indictment should be returned because the deadly force used was justified. Relatives, friends, and then entire communities got upset and took to the streets.

Attorney General Eric Holder held a press conference after the latest no-bill and announced there will be a federal civil rights investigation into the asphyxiation death of the New York man selling loosies. There is no reason to doubt General Holder, and this kind of action is fairly common in the federal system from the Civil Rights Movement times when the Klan was killing people and the state police would not act because they were the Klan.

Federal investigation worked out in a highly visible minority of civil rights homicides and it worked in the Rodney King case, the watershed instance of police force caught on camera.

The state prosecuting attorney depends on the police in her jurisdiction in many practical ways, but another dependence seldom discussed is the electoral endorsement of the police union or association, a sought after prize in most prosecutor elections. The dependence flows the other way as well, and police love prosecutors who hand them power in plea bargaining or sentencing or ratify police decisions to “throw the book at” an individual with a “bad attitude.”

This interdependence, the argument goes, makes prosecution of police violence in state court virtually impossible. After all, who gathers evidence for that case, just like any other case? The police colleagues of the defendant.

In addition to the civil rights history, the mythical status of the federal “untouchables,” Elliot Ness’s pursuit of Al Capone in a time of rampant corruption among Chicago police, forms the factual basis for the perception that federal law enforcement is less corrupt than state law enforcement.

Further complicating the demand for justice, civilians who take to the streets to protest police violence are accused of disrespecting the “thin blue line” that protects us all. Policing is a terribly dangerous and violent profession, the narrative goes, but we benefit from the willingness of brave police to face danger on our behalf.

Indians who still have reservation lands in non-PL-280 states have vast experience with law enforcement on the felony level by federal officers, and most of those Indians scratch their heads when confronted with the idea that federal officers are superior in their ability to police official violence. Indians, of course, fall into the category of non-white persons who lack gratitude for the risks police take on our behalf.

I taught future police officers for 15 years and most of them came to the study of criminal justice needing to be disabused of the claim that policing is a terribly dangerous profession. In workplace deaths, Bureau of Labor Statistics records show that policing seldom cracks the top five, even adjusting for the number of officers or the amount of time they work compared to others.

Consistently, farm work and construction are both more dangerous than policing. In the year I started full time teaching, 212 workers in the “sales and supervisory” category died at work, of which 63 percent died from homicide. One hundred and seventy-four police died, of which only 47 percent were homicides. More police are killed in traffic accidents.

There is also reason to pause over the claim that federal officers investigate themselves better than state officers investigate themselves. Attorney General Eric Holder is not always a black white knight, riding to the rescue of police violence victims.

The story mentioned above is a federal story and the unarmed man died, according to the FBI investigation, in what we call within the system a “good shoot.” Because the dead man had substantial martial arts skills and because one of the officers did sustain a gash in his head requiring nine staples, maybe the result was correct. Maybe four men, armed and trained, could not stop one unarmed karate buff without killing him.

The karate buff who was shot dead was Ibragim Todashev, a gym buddy of Tamerlan Tsarnaev, the suspected leader of the plot to bomb the 2013 Boston Marathon. Because state officers were present at the homicide of Todashev, there was a review by both state and federal officers. The Boston Globe later published much of the evidence. Lots of eyes were on the case and it may have been a good shoot.

The controversy around the Todashev homicide motivated The New York Times to pursue the FBI’s track record investigating itself. The first clue that the FBI was not particularly proud of that track record came when the Times had to file suit under the Freedom of Information Act to get the information.

According to the reluctantly released records, FBI agents used their firearms to effect 150 times between 1993 and 2011, producing 70 homicides and 80 non-fatal gunshot wounds. The Times did not report what proportion of the shootings happened on Indian reservations but, on the point of federal officers as incorruptible and untouchable, the FBI found 150 of 150 shootings by FBI agents to be “good shoots.”

Either the FBI legend extends to infallibility or Attorney General Eric Holder is in no position to lecture state prosecutors about their reluctance to bring their own officers to book.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.