Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

01 May 2015

Baltimore: Res Ipsa Loquitur

[For a brief update on the indictments, click here. For a recent series of analytical posts on bond and stock values and their relationship to climate change, click here.]
    “On April 29, 1992, deadly rioting that claimed 54 lives and caused $1 billion in damage erupted in Los Angeles after a jury in Simi Valley acquitted four Los Angeles police officers of almost all state charges in the videotaped beating of Rodney King.” New York Times free daily newsletter, April 29, 2015.
About twenty-three years later, a handsome American named Freddie Gray ends up dead in a jail with a severed spinal cord. After his funeral and related public protests, riots and looting break out in Baltimore, his home town.

Was his death the result of a strange medical condition? Were the riots the result of an equally strange social condition?

I’m a hypochondriac. So I know more about medicine than 99% of non-doctors. But funny thing. Even in my ceaseless search for imaginary medical problems to worry about, I’ve never heard of “spontaneous spinal dissociation.” Nor have I heard of “spontaneous rioting syndrome.”

As a modern man and an ex-scientist, I don’t believe in the supernatural, the diabolical or divine intervention. I believe in cause and effect.

Healthy, vital young people like Freddie Gray don’t die inexplicably for no reason, even when under arrest and in jail. Powerless young people from an oppressed minority don’t riot for no reason, either. Normally, they try to stay hidden and under authorities’ radar. They keep their heads low.

The old common law knew how to deal with things like this. It has a doctrine called “res ipsa loquitur.” That’s Latin for “the thing speaks for itself.”

The doctrine applies in negligence cases. When an injury occurs under circumstances that don’t usually cause that kind of injury without negligence, the law allows a jury to assume that negligence occurred. The jury can reach a verdict of negligence without any specific evidence of what went wrong. Just the fact of the injury and the fact that injuries of that sort don’t happen without negligence is enough to justify a verdict.

The doctrine of res ipsa loquitur has a fancy Latin name. But it’s just common sense. Sometimes things go wrong and there’s no specific evidence of exactly what went wrong. When what went wrong is the type of thing that cannot or should not happen without wrongdoing, then wrongdoing is the likely cause.

In recent days we have a new theory of how Gray died. A man in the same paddy wagon said he had been banging his head against something. So maybe Gray did it himself. Maybe we don’t have a case of spontaneous spinal dissociation. Maybe we have a case of self-severing of one’s own spine.

Let’s leave aside, for a moment, how hard that is to do. Let’s think for a moment of why a young man as good looking as Freddie Gray would want to bash himself so hard that he severs his spine and kills himself.

Maybe he was autistic. Maybe he was crazy. But he was twenty-five.

Somehow, this young man had managed to survive all the slings and arrows of life as a young black American male. He had also survived all the general tortures of American adolescence, not to mention the ravages of poverty in what we euphemistically call an “underserved area.” Somehow, he had managed to get by all of that and make it into young adulthood, without severing his own spine. He did, that is, until he found himself in that police van. Res ipsa loquitur.

Now psychologists say that suicide is often an act of rage and hatred. It happens when you hate someone or something so much, but also fear that thing, or are so powerless against it that you cannot express your rage, which so turns against you yourself.

What might that thing have been? Might it have been a police force that people in certain areas of Baltimore have viewed for years as an occupying army, a thing to be feared, hated and shunned at all costs? Res ipsa loquitur.

And what about the police themselves? It takes a lot of force to sever your own spine. If it indeed happened, it probably took a lot of repeated banging. Don’t the police have a duty to protect a citizen, even one they’ve arrested—but not yet convicted of anything!—from injuring himself?

Aren’t there standard procedures, known as “suicide watches,” for precisely that purpose? Wouldn’t police most likely do that for a good-looking white guy, especially one wearing a business suit and speaking with an upper-class East-Coast accent? Res ipsa loquitur.

So when I consider the riots in Baltimore and the recent, extraordinary spate of killings of African-Americans, nearly all of them unarmed (and some of them children), I can’t believe that something horrible hasn’t gone wrong, and that serious wrongdoing does not lie behind it. I don’t know whether it’s with our police, our justice system, our culture, our society, or our democracy. Probably all five play their limping parts. Whatever the cause is, it’s big, bad and systemic.

Uncharacteristically, I have lost the appetite for analysis. We don’t need intellectualization any more. We need action. The most obvious and urgent action is to rid our police forces of the bad apples that spoil the barrel. We need to take drastic action to change the culture of machismo, militarism, violence, abuse and impunity that apparently pervades our nation’s police, even though it infects only a minority of police and affects only a minority of our people. We start by “pruning” the apostles of that culture.

Four steps might help. First, whenever an officer kills an unarmed suspect, by whatever means, he or she should be suspended without pay pending an investigation. If it’s a group, as in Eric Garner’s case, all members of the group should be suspended without pay.

The hiatus in pay would not deter real self-defense. No one thinks of paychecks at the instant when his life is under real threat. But withholding pay might deter wanton killing and other abuse. (Back pay could and should be restored, with interest, upon a clean investigation.)

Second, from the first moment of suspicion, a specially appointed special prosecutor should handle the decisions whether to investigate the killing officer(s) for a crime, whether to proceed to indictment, and, upon indictment, how and when to prosecute. Ordinary prosecutors work too closely and too often with police to be free from bias in their favor, let alone the appearance of bias, as the Ferguson debacle so brilliantly demonstrated.

Third, if they are retained at all, officers with two or more credible, unresolved complaints of bias or brutality should be assigned to desk jobs, again pending investigation of or appeals by them. We need to take citizen complaints seriously unless and until they are proven spurious with evidence, not prejudice (whether in favor of police or against a class of citizens).

“Spontaneous complaint syndrome” is just as rare as spontaneous spinal dissociation and spontaneous rioting syndrome. People don’t stick their heads up and complain, let alone in communities terrorized by police, for no reason.

By all means, don’t fire the officers until the verdict is in. Just keep them off the streets, with full pay and benefits, until they are proven worthy of returning to public duty. If citizens abuse this rule, deal with that problem when and if it happens. Don’t let hypothetical and maybe imaginary horribles undermine what could be an effective policy.

Finally, we ought to consider giving every law enforcement officer, and every applicant, one of the tests for unconscious bias that psychologists have recently developed. We should set limits beyond which current officers get assigned to desk jobs (without loss of pay or benefits), applicants don’t get hired, and persons with outstanding complaints for brutality or questionable killings get reassigned, suspended or fired.

Too draconian, you say? Well, what about the Germanwings disaster? A whole planeload of passengers and crew went down because a pilot, under relaxed and haphazard psychological scrutiny, got the blues.

Certain professions must endure greater accountability because their actions make big waves. What waves could be bigger than a spate of killings of unarmed civilians, all of whom (by sheer coincidence, I’m sure) belong to the same long-oppressed racial minority as our once-slaves? Doesn’t heightened responsibility come with a gun and a badge and a no-longer-metaphorical license to kill?

We Yanks are a proactive people. We try not to sit on our hands until problems overwhelm us. At least we used to try.

In this case, it’s long, long past time to act. It’s been over a century since Jim Crow and the spate of lynchings got started. A naïve visitor from another planet might well conclude that we have replaced random, disorganized private lynchings with highly organized, if not institutionalized, ones by over-militarized, baised and (at very least) insensitive and trigger-happy police.

Blaming the victims won’t help, even when they riot and loot. We need to address the root causes of this national disaster. We need to cull bias—whether conscious, unconscious, systemic or institutional—from our law enforcement and (eventually) from our culture. And we need to cull it systematically, relentlessly and even ruthlessly, like the good social engineers we used to be.

This (we trust) is not some banana republic, in which public or private death squads can murder inconvenient peasants with impunity. This is America. These are our cities and our people. Treating all of them with respect and dignity, or at least fundamental fairness, is a top domestic priority, yielding only to ameliorating our gross and exploding inequality, which drives it all.

Footnote. This step will only work if the tests can be made tamper-proof. Police who plant evidence on victims, as the South Carolina killer did on camera, won’t hesitate to cheat on tests.

An old friend of mine used to be a public defender. Eventually, he quit that work because he: (1) didn’t like working with accused criminals and (2) felt that the police made his job harder by often lying on the stand to convict their arrestees. I never fully believed him until I saw that video of the killing cop planting the Taser on his victim. Now I do. I try to take every chance I get to become less naïve.

Endnote: Indictments are Just and Proper, but not the Solution. Although I had written the first draft of the foregoing post a few days ago, it was published at 6:38 am EDT today. Just over four hours later, Bloomberg.com announced the indictments.

“Gray’s death was a homicide,” said Maryland’s state attorney. Do tell!

According to Maryland’s chief lawyer, there wasn’t even probable cause to arrest Gray. Not only was his death unlawful. So was his arrest. The state indicted six officers on various charges, including homicide, manslaughter, assault and misconduct.

But don’t breathe a sigh of relief just yet. This is just the beginning of a long and arduous legal process, with the outcome uncertain. We Yanks have a “police protect us, so they can do anything” culture. It’s deeply entrenched, not the least in communities that it hurts most.

More important, indicting, convicting and jailing rogue police is not the solution to our national agony and our national shame. We must cull officers like these from our law enforcement before they even have a chance to do wrong. (And no, I’m not trying to convict them without a trial; any officer capable of being indicted for such crimes should find some other line of work. He or she will stay out of trouble and maybe jail, and innocent citizens will stay alive.)

It’s going to take some time, cost some money and cause some angst. But there is no other reliable way to cure a sick culture.

Police have a hard job, to be sure. But that’s precisely why they have to be better than the rest of us. Not just the same. Not equally tribal and violent. But better. Among other things, calmer, less prejudiced and more self-restrained.

If it takes some money, some thought, some planning and some big changes to get them there, we must start now. Otherwise, we Yanks will slowly and surely join South America and its violent, unpredictable culture, leaving Canada as the sole outpost of so-called “Anglo-American” civilization in the Americas.



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