Should We ‘Tape Everything’?

by Reihan Salam

Last week, I argued that on-duty police officers should be required to record their interactions with civilians with the aid of so-called “body cams” and, more controversially, that teachers should be recorded in the classroom. Though I lumped these two arguments together, they deserve to be teased apart.

First, I should note that I fell prey to technological triumphalism. The “hardware” of body cams can improve our criminal justice system. But what really matters is the cultural ”software” that undergirds the system. 

The case for police body cams is, for the reasons outlined in the column, fairly strong. Yet they’re certainly not a cure-all. As Radley Balko observes, it is not uncommon for police departments to have cameras and to not use them, or for cameras to malfunction at convenient moments:

So in addition to making these videos public record, accessible through public records requests, we also need to ensure that police agencies implement rules requiring officers to actually use the cameras, enforce those rules by disciplining officers when they don’t and ensure that the officers, the agencies that employ them, and prosecutors all take care to preserve footage, even if the footage reflects poorly on officers.

Assuming law enforcement agencies are using recording equipment properly, we then have to deal the problem of “cultural cognition,” which Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans, and Jeffrey J. Rachlinski address in an April 2012 Stanford Law Review article, which Josh Chafetz of Cornell Law School kindly sent my way:

“Cultural cognition” refers to the unconscious influence of individuals’ group commitments on their perceptions of legally consequential facts. We conducted an experiment to assess the impact of cultural cognition on perceptions of facts relevant to distinguishing constitutionally protected “speech” from unprotected “conduct.” Study subjects viewed a video of a political demonstration. Half the subjects believed that the demonstrators were protesting abortion outside of an abortion clinic, and the other half that the demonstrators were protesting the military’s “don’t ask, don’t tell” policy outside a military recruitment center. Subjects of opposing cultural outlooks who were assigned to the same experimental condition (and thus had the same belief about the nature of the protest) disagreed sharply on key “facts”—including whether the protestors obstructed and threatened pedestrians. Subjects also disagreed sharply with those who shared their cultural outlooks but who were assigned to the opposing experimental condition (and hence had a different belief about the nature of the protest). These results supported the study hypotheses about how cultural cognition would affect perceptions pertinent to the speech-conduct distinction. We discuss the significance of the results for constitutional law and liberal principles of self-governance generally.

In a similar vein, it is easy to imagine that jurors reviewing a body cam recording of a police confrontation with a civilian would bring their “cultural cognition” to bear. In a case involving, say, a white police officer and an African American civilian, much could depend (alas) on the racial composition of the jury pool. Alex Tabarrok summarizes the work of Shamena Anwar, Patrick Bayer, and Randi Hjalmarsson on the impact of race on the outcome of criminal trials:

What the authors discover is that all white juries are 16% more likely to convict black defendants than white defendants but the presence of just a single black person in the jury pool equalizes conviction rates by race. The effect is large and remarkably it occurs even when the black person is not picked for the jury. The latter may not seem possible but the authors develop an elegant model of voir dire that shows how using up a veto on a black member of the pool shifts the characteristics of remaining pool members from which the lawyers must pick; that is, a diverse jury pool can make for a more “ideologically” balanced jury even when the jury is not racially balanced.

The author’s results show not only that blacks and whites are treated differently depending on the composition of the jury pool but also that random variation in the jury pool adds to the variability of sentences holding race constant. Like is not treated as like. The results also suggest that we don’t need racial quotas to increase fairness. We can increase fairness and reduce variability in a racially neutrally way by expanding the size of juries. Six-person juries have become common because they are cheap(er) but a return to twelve person juries would reduce the variability of sentences and greatly equalize conviction rates across race. [Emphasis added]

These findings about jury trials reminded me of Russ Roberts’ recent conversation with Barry Weingast, in which Weingast, a student of legal history, described the juries of ancient Athens. These juries were absurdly large by modern standards, with 201 jurors for a trial. These jurors would simply vote on the outcome of a trial after hearing the arguments of the two litigants. The reason for these large juries, according to Weingast, is that the goal of the law was not just to establish rules of conduct, but to establish rules of conduct that allow for the coordination of people’s expectations. And so it is important to understand what are the shared expectations in our society. A small jury could include a handful of eccentrics who don’t have a good handle on societal expectations. A large one, however, would give you a much clearer picture of the expectations of your typical Athenian. Something similar should apply, I would argue, in our own society. Stephanos Bibas’s The Machinery of Criminal Justice reminds us that something similar did apply in colonial America:

Colonial Americans saw criminal justice as a morality play. Victims initiated and often prosecuted their own cases pro se (without lawyers), and defendants often defended themselves pro se. Laymen from the neighborhood sat in judgment as jurors, and even many judges lacked legal training. Trials were very quick, common-sense moral arguments, as victims told their stories and defendants responded without legalese. Communities were small, so gossip flew quickly, informing neighbors of what was going on. Even punishment was a public affair, with gallows and stocks in the town square. True, punishments could be brutal, procedural safeguards were absent, and race, sex, and class biases all clouded the picture. Nonetheless, the colonists had one important asset that we have lost: members of the local community actively participated and literally saw justice done.

The point of jury trials was to empower communities, and to respect their values. In a more diverse society, there is a logic to ensuring that juries reflect this diversity. Among other things, this will tend to strengthen the legitimacy of law enforcement in diverse communities, which, as recent surveys remind us, is at a dangerously low level. As you can probably tell, I’m very interested in this subject and I’d like to revisit it.

On an entirely different note, I oversimplified the issue of recording teachers in their classrooms, as an acquaintance reminded me over email. Such recordings could help establish the facts surrounding disciplinary actions, which does strike me as valuable in itself. Yet the existence of these recordings creates the danger that teachers will be reduced to automatons as they are forced to follow narrow prescriptions as to what they can say and do. I still believe that the recording of teachers could be used as a valuable pedagogical tool, particularly if the recordings are only available to teachers, their colleagues, and their supervisors. But the mere existence of these recordings raises the danger that, for example, litigious parents might demand access to them.