Listen to the Audio Mises Wire version of this article.
Social justice warriors accuse the police of systemic racism. At the same time, they push revolutionary changes in police procedure that cement extreme bias into the very structure of law enforcement—a bias that will fall heavily upon black men. It is called victim-centered justice, and the threat is imminent. The powerful International Association of Chiefs of Police (IACP) has just launched a study entitled “Promising Practices in Law Enforcement Victim Support.” Its predictable findings will almost certainly be used to promote legislation for victim-centered justice in the near future. If legislation is enacted, then evidence-based, unbiased justice will go down for the count.
Victim-centered justice is a “believe the victim/woman” approach by which an accused is presumed guilty based on an accusation, even without evidence. The purpose is to protect the accuser—who is presumed innocent—from being further victimized by traditional police procedures that focus on hard evidence, contradictions in testimony, and other objective indications of whether a case is valid. In his article “The Pandora’s Box of ‘Trauma Informed’ Investigations,” James Baresel described what victim-centered justice suggests instead. “Detectives base their investigation on the assumption that the women’s status as a victim is not to be questioned, even insisting that contradictions or apparent inaccuracies in her account must be evidence of a traumatic experience whose very existence confirmed her truthfulness.” The police almost act as social workers to elicit testimony from an accuser without upsetting her.
Sexual abuse is the legal arena in which victim-centered justice is being tested. Many studies have found that sexual abuse, such as domestic violence, is experienced at roughly equal rates by both sexes; it is called gender symmetry. But the overwhelming number of police reports and other official complaints come from women, for whom “going public” is socially acceptable and encouraged. This means that women, as public accusers, will receive the bulk of the skewed benefits of victim-centered justice—especially the presumption of innocence. Meanwhile, men, as those overwhelmingly accused, will bear the bulk of the burden—especially the presumption of guilt.
For reasons explored here, this burden falls disproportionately upon black men. This is a bitter irony. If systemic racism does exist in law enforcement, as social justice zealots insist, then black men desperately need to be treated as individuals whose due process is being egregiously violated. They need precisely what victim-centered justice denies to them: protection of legal rights.
Does systemic racism exist? First, of all, what is it?
Racist acts are often committed by “bad apples” who do not reflect the general or official behavior of an institution. This problem can be resolved by removing those apples and revising any practice that may have inadvertently facilitated the bad acts. The “bad apple” problem is not systemic racism. Its remedy is reform, not revolution—not deconstructing an institution at its core and rebuilding it along different principles.
Systemic racism is embedded into the institution’s structure and policies so that racism becomes standard practice. This form of racism does not result from “bad apples” but from the operating principles of the institution itself. It is inherent and so pervasive that the organization cannot be reformed but must be dismantled and reconstructed; the remedy is revolution, along with a purging of the past.
Why would victim-centered justice disproportionately punish black men? Because the bias of any system tends to impact the most vulnerable within it. Do statistics confirm that black men will be disproportionately impacted? No general data exist on issues such as how many black men have been falsely imprisoned due to bias. Even if statistics existed on false imprisonment, they would not necessarily indicate whether imprisonment was due to racial bias or other factors, such as the prevalence of poverty that precludes good legal representation.
The piecemeal data that does exist is alarming. Black males seem to receive the brunt of mistreatment by police and wrongful convictions. The glimpse comes from the National Registry of Exonerations, which is “an ever-changing public archive” of nonconfidential data. The nation’s largest and most thorough compilation of exoneration data, the archive is a project of several universities—most prominently the University of Michigan.
In September 2020, the registry issued a 218-page report entitled The Role of Prosecutors, Police and Other Law Enforcement. The report summarized its mission:
Misconduct by law enforcement has received a great deal of attention as a result of the Black Lives Matter movement, which has focused on racial discrimination and violence by police officers. We study a different (but overlapping) type of behavior: misconduct that distorts evidence in criminal cases and leads to convictions of innocent people.
In other words, a registry exoneration indicates police misconduct. The areas of misconduct break down into five categories: witness tampering, misconduct in interrogations, fabricating evidence, concealing exculpatory evidence, and misconduct at trial.
Assuming there is no selection bias, a comparison of the rate of exonerations between two races can provide a glimpse of whether police show bias. The report cites an earlier (2017) registry publication: Race and Wrongful Convictions in the United States. The 2017 report declares,
African Americans are only 13% of the American population but a majority of innocent defendants wrongfully convicted of crimes and later exonerated. They constitute 47% of the 1,900 exonerations listed in the National Registry of Exonerations (as of October 2016), and the great majority of more than 1,800 additional innocent defendants who were framed and convicted of crimes in 15 large-scale police scandals and later cleared in “group exonerations”. (note: exonerations due to these scandals are not included)
In other words, blacks account for 47 percent of all known exonerations, or 1,158 out of 2,400; 52 percent of murder exonerations, or 468 out of 908; and 63 percent of drug crime exonerations, or 200 out of 317. Blacks constitute an even higher proportion of group exonerations based on drug crime frame-ups. The report concludes, “There is no doubt that race plays a role in the conviction of innocent defendants in America.” Again, it is not known whether the discrepancies result from racism or other factors.
The 2020 report finds “official misconduct contributed to the conviction of innocent defendants in 54% of known exonerations—in most cases, more than one type of misconduct.” It concludes, “[G]uilt-presuming investigations were found to target Black men. For murder cases, 78% of Black exonerees, compared to 64% of White exonerees, were victims of official misconduct. The misconduct disparity was even greater for drug crimes: 47% among Blacks and 22% for Whites.”
The exoneration rates due to specific police misconduct are also informative. Consider tainted identifications. They were twice as frequent with minority defendants than with white ones. This contributed “to the high rate of false sexual assault convictions of innocent Black men who were charged with sexual assaults on white women.” A footnote to the 2017 report provides background; “In half of all sexual assault exonerations with eyewitness misidentifications, Black men were convicted of raping white women, a racial combination that appears in less than 11% of sexual assaults in the United States.” An unofficial analysis of all exonerations in 2000 in which officer misconduct (OF) was a contributing factor revealed that 53 out of 72 cases, or 73.6 percent were exonerations of blacks. Going on the basis of first names, all but one (Tina Jimerso) were male.
As poor and sketchy as the foregoing statistics may be, they may be the best available. Even if they err significantly, the data is so strong as to indicate that bias in police departments disproportionately victimizes black males. Black males need to have bias removed from the system if justice is to be equal for all. Institutionalizing the bias, as victim-centered justice would do, moves in the opposite direction.
The International Association of Chiefs of Police study Promising Practices in Law Enforcement Victim Support is particularly dangerous. It is the wedge that could embed the bias of victim-centered justice in every police department in America, because its findings will be used to support ensuing legislation. The IACP has issued an open call to police departments for their participation. The approximately 750,000 sworn police officers in America are the face of law with which most people commonly intersect. The police are the law. A redefinition of their purpose and procedures would redefine the entire system.
The federal government is on board. The study is funded “by federal award number 2020CKWXK051 awarded … by the U.S. Department of Justice (DOJ), Office of Community Oriented Policing Services.” The grant is for $498,300, with an additional $125,000 allocated to Research Triangle International (RTI)—a partner on the project.
Victim-centered justice is en route to become the norm in police investigations into sexual abuse. From there, it will gradually become the norm in police investigations in general. One thing that might give social justice warriors pause is the possibility their approach will increase the false imprisonment of blacks. Pauses are welcomed; they offer space for discussion and reflection. But the unintended consequence for black men is not likely to deter victim-centered zealots. Their final analysis will be victim versus accused, women versus men. The race of those accused will take second place to a politically weightier consideration; they are male. And so the collateral damage of “always believe the women” will be institutionalized into the systemic racism and gender bias which victim-centered justice ostensibly opposes.
