Posts Tagged ‘cultural difference’

Training and Experience

Thursday, December 4th, 2014

This has been another one of those years with a heightened awareness of police violence against unarmed black men. Awareness is a good thing. Understanding, however, is better. You can’t solve a problem until you know what the problem is.

The problem isn’t really racism, though. The problem is fear. These shootings don’t happen because the victim was black. These shootings happen because the officer was afraid.

The overwhelming majority of police officers, of course, will go their entire careers without ever pointing their weapon at another human being, much less shooting at one. Of the few officers who do pull the trigger, the majority are justified — they’re using deadly force to protect themselves and the public from deadly peril. That’s the norm. But some police shootings shouldn’t have happened — the victim wasn’t armed, and wasn’t posing a serious threat to anyone.

When those shootings happen, it’s because the officer was afraid. He saw danger where it didn’t exist. Maybe he panicked when the victim reached for his wallet. Maybe he was scared in a dark staircase and was suddenly startled by someone appearing out of nowhere. Maybe he wasn’t scared witless, but simply rationally assessed an indignant shouting person as being a vicious attacker. Either way, he pulled that trigger out of fear.

That fear is real. It doesn’t justify anything, however. Fear is the problem that needs to be solved. So where does it come from, and what can be done about it?

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Police often use the phrase “training and experience” in court, to explain their judgment calls. “I suspected that the defendant was getting ready to rob that store, based on my training and experience.” “I determined that the substance he was selling was probably cocaine, based on my training and experience.” It’s a catchall phrase, but not a meaningless one. Training and experience, after all, are how any of us know anything. We know that 2+2=4 because we were trained in elementary school to do addition. We know that the sun rises every morning and sets every evening because we’ve experienced that every day of our lives.

Experience is stronger than training. I can lecture you until I’m blue in the face that the sky is red, but that’s not going to change what you already know from your experience, that the sky is blue.

This fear that police officers have comes from experience. It is ingrained in an officer’s brain from his lifetime of experience. His perception is that this kind of person, looking like that, behaving like that, in this kind of a situation, is probably a threat. Right or wrong, justified or not, that is what he’s learned. It’s what he instinctively knows. You can give sensitivity lectures until you’re blue in the face, but the only thing that’s going to change that perception is real-life experiences demonstrating that he doesn’t need to be afraid.

That’s important, because this fear is not something that can be intellectually or rationally changed. It’s purely unconscious. It’s coming from the unthinking part of the brain, before the thinking part ever gets involved. The emotional parts and ingrained memories of past experiences are saying “this is a threat,” and are pumping fight-or-flight signals all over the nervous system without any conscious control.

On top of that, the brain is unconsciously creating a perception based, not on what’s really going on, but on what it expects is probably going on, based solely on what that brain has experienced in the past. We don’t have much room for attention at any one time — our brains can only keep track of a handful of things at once, and the area of our visual focus is (astonishingly) no bigger than your thumbnail held out at arm’s length. Our brains create the illusion of a continuous experience, and of seeing all the things we think we see. And that’s what it is: an illusion. To do this, our brains fill in all the blanks with what’s probably there, based on the experiences we’ve stored. This happens without our awareness, without our control, and it happens constantly. We perceive what our experience expects to see.

And in the case of unjustified shootings, the police officer very often saw a threat where none existed because in his personal experience, that was a threatening situation.

It’s worsened when an officer’s experience is extremely limited. And it very often is. But it’s all he’s got to go on. Someone raised in a quiet suburb, who whose only experience with certain people has been of a violent or threatening nature, is going to know, based on his training and experience, that people like that are dangerous.

This fear can be racial — police officers are generally more likely to use violence against blacks and hispanics than against whites or asians. Even police officers who themselves are black or hispanic. But that doesn’t necessarily make it racist. And in fact race is less important than socioeconomic status — police are more likely to shoot at low-income, low-prestige individuals regardless of race. But that, too, doesn’t necessarily make it classist. It’s not blind racism or classism, but rather a prejudice based on limited life experiences. An officer may have a real prejudice that black people (say) are more likely to be dangerous than white people, and that poor people are more likely to be dangerous than middle-class or rich people.

We can spout statistics until we’re blue in the face again, that these prejudices do not in any way reflect reality, but that’s like telling him the sky is red. They reflect the officer’s reality, the only one he knows.

On top of that is the “us vs. them” mentality that many police officers can’t help but develop over time. Nobody’s on their side — the politicians whose rules the police are enforcing are the first to throw them under the bus if there’s ever any outcry. The citizens whose lives they’re protecting, for whom they’re risking their lives, call them names and march in outrage. The communities they police scream bloody murder when they don’t like what an officer did, but don’t utter a peep about the people in their communities who are killing children and driving businesses away. Nobody organizes marches against the criminals, against the real bad guys. The only people on their side are fellow cops. Not even prosecutors are really on their side. It doesn’t take long for an officer’s training and experience to prove to him that the citizens he serves are actually his opposition. And when any of us look at people as outsiders, we’re even less likely to notice individual differences. An officer who no longer sees himself as “one of us,” but rather sees any of us as “one of them,” is far more likely to rely on internal prejudice when assessing an individual. This is what we all do, by the way — it’s yet another unconscious function of our brains over which he have little or no control. Members of an “other” group just get lumped together into a stereotype, without much attention to individual differences.

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Stereotype is the right word here, but not in the way it’s normally used. It means “the things our brains expect to see.” Most of the time, stereotypes are great — they’re a real survival skill without which we couldn’t function in a complex environment. “That car was coming right at me last time I saw it. It’s in my blind spot now, but it’s probably still coming this way. I’d better get out of its way.” In a panic situation, when there’s no time to think and assess, they’re a real time saver, as the T-shirt says. Your brain falls back on what it already knows, to determine what is probably happening, and what is probably the best thing to do about it. Most of the time, it’s right. Which is why you’re probably still alive to read this.

But sometimes instinctive reactions are tragically wrong. An inexperienced motorcyclist, for example, who suddenly needs to veer left, will do the obvious thing and steer the handlebars to the left. Which is unfortunately the opposite of what he needs to do, and so he goes down and slides into that oncoming truck. A more experienced biker, however, will have trained herself to overcome that instinct and do the counterintuitive thing — she pushes the left handlebar away from her, and veers to the left as she wanted.

Similarly, a police officer whose experience with certain people is limited can easily misinterpret a harmless situation as a dangerous one. Like the motorcyclist, the only cure is more experience.

Training helps a little bit, but it only goes so far. You can lecture to the inexperienced motorcyclist until your face assumes a certain hue, but he’s not going to believe it until he tries it. And it will take a lot of practice to make the counterintuitive decision the ingrained instinct. Similarly, you can give all the cultural sensitivity training you want, but for it to have any real effect the officer is going to have to see for himself that most people who look like that, talk like that, dress like that, live in that neighborhood, etc… most of them are okay. And he must gain enough experience to be able tell those few who are threats from the majority who aren’t.

That doesn’t come from a lecture. That comes from spending time in the community and getting to know the people. That comes with walking the beat with a more experienced cop who knows the people, who can share his knowledge and insights. That comes from giving police officers experience, not just of the criminal element, but of the community as a whole.

That’s hard to do. And it’s getting harder in recent years. Police are less and less likely to come from the communities they police, and cultural dissonance and misunderstanding are ever more likely. Community outrage against police is getting louder, and the “us vs. them” mentality is only getting stronger. Policing policies are less about understanding the community and making judgment calls, and more about arresting every infraction. Police are using more and more overwhelming force to ensure compliance with their commands and improve their chances of getting home safely. Cultural awareness has never been greater, and yet police officers have less opportunity to experience it firsthand than ever.

Giving officers the necessary training and experience is harder than ever. But it’s the only real solution.

How Would a “Cultural Relativity” Defense Work?

Thursday, July 2nd, 2009

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Amir Efrati has an interesting article in today’s Wall Street Journal, headlined “Cultural Background Gains Traction as a Legal Defense.” It’s a well-known fact that some things that are criminal in one society are perfectly acceptable in another. Some lawyers are starting to claim that it should be a defense if a person’s conduct — though perhaps criminal on its face — was consistent with the norms of the culture they come from.

To the extent that this affects the mens rea element of a crime, it seems obvious that cultural beliefs can be relevant. If one’s cultural upbringing makes one’s conduct somehow less purposeful, knowledgeable, reckless or negligent, then it ought to be taken into account.

For example, it’s common to charge someone with possession of a controlled substance with intent to sell — usually a more serious charge than simple possession — based solely on the quantity of drugs possessed. If someone has thirty crack vials in their pocket, in the common sense of American culture it would not be unreasonable to presume that they did not have it for personal use. Intent can be inferred from these facts.

But a Laotian immigrant was acquitted of possession-with-intent-to-sell charges by “an all-white, predominantly Republican, South Carolina jury,” after it heard evidence that 300 grams of opium was consistent with personal use in the defendant’s tribe. “It’s their version of Advil,” his lawyer argued. “They’ve been using this for a thousand years.” There was a cultural explanation of why this particular defendant did not have the intent to sell.

The Journal article also mentions the recent case of Nary Chao, a Cambodian mother who was charged with a felony after some busybody turned her in for kissing her infant son’s penis. This is bizarre behavior in America, sure, but in Cambodia it is an acceptable sign of affection. The prosecution was mollified somewhat by this explanation, and “let her plead to a misdemeanor.” The Maine Supreme Court dismissed a similar sexual assault charge against a Dominican mother for similar reasons. In sexual assault cases, or child-endangerment cases, the law doesn’t care so much why you did it, only that you did it.

Nevertheless, many cultural differences are not going to have an effect. They’re not going to excuse otherwise criminal conduct, or mitigate the sentence. A father who physically abuses his child is going to be just as culpable, even thought it is a cultural norm where he comes from. Our society values the child’s safety more than it does the father’s cultural prerogatives. A fundamentalist Muslim family that commits an “honor killing” is not going to be let off the hook just because it would have been expected back home.

The upshot is that any cultural balancing is going to be weighed within the culture of the judge and jury who are doing it. In America, you’re just not going to see accommodation of customs that jeopardize someone’s safety, or cause physical harm.

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The clash of cultures doesn’t necessarily involve immigrants. We’ve spoken to people from inner cities who think it’s unfair to get charged with certain crimes, because those are the “white man’s” laws, which shouldn’t apply to them. In some neighborhoods, it’s just as acceptable to smoke a joint as to smoke a cigarette. It’s a cultural norm. So getting popped for it smacks of injustice.

But is it really unjust? Should cultural sensitivity extend to internal cultural differences? Whatever one’s position on the legalization of pot, why should the law apply to one portion of the citizenry and not to another?

As a white-collar defense attorney, we also see lots of people who, consistent with the culture they were raised in, think it is perfectly acceptable to commit financial crimes. It’s not only acceptable to screw others, it’s something to be proud of. This is an absolutely foreign concept to us, and yet there it is. Should ethical relativism mitigate such behavior? Is a fraud any less criminal if it is acceptable in the offender’s community? What if the victim was also part of that community, and shared the same views?

How about spitting in public? It’s against the law. But in some neighborhoods, hawking a big old loogie onto the sidewalk is almost mandatory. Should people in those neighborhoods be exempt from being ticketed, just because it’s the norm there? Why should they be any less subject to the law than a tourist in midtown?

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Cultural relativism can be dangerous, if it lets people get away with conduct that others are held accountable for. It engenders a perception that the justice system is not fair. And it is of critical importance that the system be perceived as generally fair. If the system is perceived to act irrationally, then it’s not going to deter crime.

If the system is perceived to excuse crimes based on vagaries of birth or ethnicity, then the system fails. Some people will be more likely to commit crimes, and society will suffer.

If the populace loses confidence in the ability of the system to protect them, because some people are going to get off based on vagaries of birth or ethnicity, then the system fails. People will turn to other ways of protecting themselves, and society will suffer.

On the other hand, cultural insensitivity can also be dangerous. If people are punished for offenses that are harmless, such as the Cambodian and Dominican mothers’ expressions of affection, the system is just as likely to be seen as arbitrary and irrational. If cultural factors are not taken into account when they legitimately affect a critical mens rea element, then the system will be perpetuating injustice. Society will suffer.

For those who insist that the law should apply to all visitors equally, then does that mean Singapore is right to imprison an American who makes a perfectly true statement that harms someone’s reputation? Does that mean Saudi Arabia would be justified in executing a visiting gay couple merely for being homosexual? There are plenty of laws out there in the world that we Americans would not want applied to us with equal force. We’d have a huge public outcry, get the State Department involved, mobilize the media. So why shouldn’t we provide the same cultural sensitivity that we would demand of foreign countries?

Where should we draw the line?

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One dividing line could be the one we alluded to above: a cultural norm should not be a mitigating factor or a defense when it caused physical harm, injury, financial harm, or otherwise damaged another person. If the conduct did not endanger anyone else’s safety or property, then a jury ought to be allowed to at least consider cultural factors.

But that is too easygoing. It lets a jury decide not to punish other crimes that society still wants enforced, even though there is no victim. And there would be unjust disparities. A jury would be allowed to excuse a West Indian pot smoker, but a kid from Kansas isn’t going to have the same defense available to him. A jury could acquit a Chinese for boiling a cat alive in lye before skinning and eating it, because that’s the way it’s done back home, but would have to convict a local for the same animal cruelty. A foreign tourist could be forgiven for swimming nude in public, but a resident would get in trouble.

But can we add an extra exception, prohibiting cultural considerations in crimes that offend public sensibilities? Doesn’t that essentially cover everything else?

As the guy said in the movie, when deciding how to enforce the law in a clash of cultures: “It is a puzzlement.”