The May 25 death of George Floyd has caused white America to re-examine its view of race and policing to an extent that’s unparalleled since the height of the Civil Rights Movement in the 1960s.

Why has it taken so long to raise public awareness on the issue of racism in society, in general, and in law enforcement, in particular?

Part of the reason is certainly due to willful blindness by those who gain politically or financially from inequality. However, the major reason, I believe, is a phenomenon known as the “availability heuristic” or “availability bias” — the psychological sleight of hand that makes our brain believe an idea to be true based solely on the number of supporting examples we can immediately recall from our own experience.

Simply put, few white Americans have had personal experience with unwarranted scrutiny or excessive force by police, while for most Black Americans, it’s a routine part of life.

Mass protests and a national outcry for change in law enforcement practices were triggered by the video of a white Minneapolis police officer nonchalantly kneeling on the 46-year-old Floyd’s neck for nearly nine minutes — an image so powerful it ranks with those of the bloated, mutilated body of Emmett Till, a 14-year-old African-American lynched by whites in Mississippi in 1955, and the Birmingham, Alabama, civil rights demonstrations of May 1963 — where local police aimed high-power hoses at and unleashed snarling dogs on, Black men, women and children.

In public discourse, the debate over the meaning of Floyd’s death has been reduced to two competing slogans.  Either it was the product of pervasive “systemic” racism in law enforcement, which can only be resolved only through a thoroughgoing overhaul of the system, or it was the result of isolated misconduct by a “bad apple” cop, which merely requires disciplining the “bad apples.”

Unsurprisingly President Donald Trump and congressional Republicans have opted for the latter. The “bad apple” theory allows Republicans to advocate cosmetic changes to law enforcement — such as a partial prohibition against choke holds and creating a national register for officers who have been disciplined — without unduly upsetting the “law and order” crowd, police unions or the former Confederate states of the GOP South.

But is the “bad apple” theory objectively valid?

If so, it should be reflected in statistics, which show trends of human behavior over a large swath of population rather than in isolated individuals. In other words, there should be no significant statistical disparity between the incidences of deadly police force against African Americans as opposed to white people. Yet quite the opposite is true.

A recent Washington Post study revealed that, though African-Americans constitute less than 13% of the nation’s population, between 2015 and 2020 they are shot to death by police at a rate more than twice that of white Americans (31 versus 13 per million).

While the interpretation of this statistic is controversial, additional studies bolster the notion of systemic racism in law enforcement and criminal justice. At least one study found that Black people were 2½ times more likely to be killed by police while unarmed. Others showed they were far more likely to be pulled over for traffic stops than white people and three  to four times more likely to be searched following stops.

They’re more apt to be jailed pending trial due to inability to make bail. They represent over 50% of juvenile offenders bound over for trial as adults. They’re incarcerated at more than five times the rate of white people, and their prison sentences are approximately 10% longer. They represent almost a third of the sentenced prison population and about 30% of those on probation or parole.

Few white people, myself included, have had the chance to walk in the shoes of African-Americans, so, unlike our Black counterparts, we recall few examples of police mistreatment and have experienced almost none first-hand.

I grew up in a largely white New Jersey suburb just outside New York City. My high school yearbook displayed pictures of only about two dozen people of color in a senior class of 746.  I attended college in at Georgetown University, located in an affluent white enclave of Washington, D.C. Black people accounted for about 71% of Washington’s total population, yet my college yearbook depicted just three in a graduating class of about 650. In 1975, I moved to Maine, one of the whitest states in the country, where Black people constitute 2% of the population.

In those environments, my sporadic interactions with police have always turned out to be benign, brief and respectful.  I’ve certainly never been arbitrarily stopped and frisked, clubbed, kicked, cuffed, tasered, carted off to jail or had a gun pointed, let alone fired, at me. Therefore, I have no personal experiences of abuse by law enforcement officers to draw upon.

It’s not that I’ve been totally unaware of the plight of African-Americans. During my high school years, my brain was imprinted with the dramatic television news scenes of violent Southern white mobs and police violence against Civil Rights protestors.

While I was a college student, Black sections of the District of Columbia boiled over in anger in the wake of Martin Luther King, Jr.’s assassination in April 1968 and became the scene of rioting, looting and arson.  Later the same year, working as an assistant to an ABC network news reporter, I waded into the Poor People’s Campaign tent city on the Washington Mall and sensed the simmering resentment of thousands of African-Americans protesting the miserable living conditions of Black America. Besides what I’ve personally observed, I’ve read extensively about the history of slavery and segregation in America and, as an attorney, have worked for over 40 years in the justice system that has produced racially skewed racial results.

Yet my own life’s experience persuaded me that, though racism still had its stubborn pockets, flare-ups and “bad apples,” the United States offered at least a rough equality of justice for all.  It was the availability heuristic at work.

For me, and probably for millions like me, it took the gripping video of George Floyd’s death to break through the distorted prism of the availability heuristic and drive home that systemic racism isn’t a slogan but an undeniable reality.

Elliott Epstein is a trial lawyer with Andrucki & King in Lewiston. His Rearview Mirror column, which has appeared in the Sun Journal for 10 years, analyzes current events in an historical context. He is also the author of “Lucifer’s Child,” a book about the notorious 1984 child murder of Angela Palmer. He may be contacted at [email protected]


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