Convictions : racism

Genetic Discrimination: Like Racism?

Richard Ford — Tue, 06 May 2008 01:24:00 GMT

Eric, I’m with you about the Genetic Information Nondiscrimination Act. It sounds good at first: Everyone is worried about a Gattaca-type future* where people are shunned on the basis of genetic tests, leading to genetic manipulation, eugenics, and a dystopia where everyone lives in Frank Lloyd Wright-style buildings, wears Jil Sander suits, and looks as gorgeous as Uma Thurman (so, OK, this last bit doesn’t sound so bad …).

But if we really think it’s invidious to tie health insurance premiums to risks, perhaps we should consider socialized medicine where everyone pays the same, state-enforced premium. We all know how popular that idea is in the United States, which suggest that people want a market-based system. It is odd indeed that people seem comfortable with the part of the market that distributes care based on ability to pay but not with the part that would tie the price to the amount of care consumed (or likely to be consumed). The perverse result of this law is that poor people with low health risks are forced to effectively subsidize rich people with high risks. This is a law both left and right should have opposed (or at least questioned).

Why didn’t anyone oppose it? I suspect some of the reason is the subtle (or not) analogy to race and sex discrimination—what I’ve called Racism by Analogy. It’s tempting to think that the moral lesson of the civil rights revolution is that we should discriminate only on the basis of desert, but in fact any meritocratic society also entails lots of discrimination on the basis of inherited and unearned virtues, such as intelligence, height, physical strength, and good looks. It’s not “fair” (just as it's not fair that I wasn’t born with Denzel Washington’s looks and Tiger Wood's hand/eye coordination), but genetic discrimination is unlike race and sex discrimination along precisely the dimension that matters: Race and sex are widely used, culturally reinforced, and often poor proxies for personal virtues (stereotypes) that reinforce widespread and illegitimate social hierarchies. Genetics are just the opposite—they are in many cases extremely good proxies for personal virtues (health) that won’t lead to entrenched social hierarchies. And, unlike race and sex, there’s no history and custom of irrational prejudice surrounding genetics, so there’s no reason to suspect that genetic information will be widely misused.

* Correction, May 6, 2008: This post originally misspelled the title of the movie Gattaca.

LAPD Ends Racial Profiling!

Richard Ford — Thu, 01 May 2008 15:25:00 GMT

The LAPD announced yesterday that after investigating 320 claims of racial profiling, not one could be sustained. The police commission is incredulous—“I find it baffling that we have these zeros.” said one commissioner. But actually, it’s not baffling at all.

The Los Angeles Times reports that the investigations concerned “allegations that officers stopped, questioned or otherwise confronted someone solely because of the person’s race.” I’m not at all baffled that none of the incidents investigated involved profiling, so defined. If profiling means stopping someone solely because of race, I’m willing to bet it almost never happens. But it’s well-documented that police do consider race—along with other factors such as age, sex, grooming, attires, demeanor, context, and behavior—when making traffic and pedestrian stops. I suspect the commissioner quoted thinks any use of race counts as “profiling”—that’s basically the position of the ACLU and other civil rights organizations. But the police, not surprisingly, employ a narrower definition.

The problem with the narrow definition is that it doesn’t encompass the problem—the police can be as biased as a lynch mob and still never “profile.” The problem with the broader definition is it hampers legitimate police methods. If the police know a racially exclusive gang is active in a certain part of town, do we really want them to ignore race entirely when patrolling there? What if the gang is on a crime spree at the time? What if they just robbed a bank and several witnesses describe them to police? At some point, the line between “profiling” and a manhunt for specific criminals, whose race is known, gets hard to draw.

As I’ve argued in my book, The Race Card, the reason racial profiling is one issue that almost everyone can agree on (we’re against it) is that no one bothers to define profiling very well. In fact, there’s almost a silent conspiracy among civil rights activists, government officials, and law enforcement to keep the definition as murky as possible. The activists demand an end to “profiling”—meaning any use of race in traffic stops; in response, police promise not to “profile”—meaning stopping people based solely on the basis of race. The activists get a symbolic victory; the police get a PR victory—nothing changes. Like an international treaty, the best way to get to a consensus is to let everyone interpret the key terms to suit themselves. Until, of course, it comes time to enforce the treaty …

polling and race

Richard Ford — Thu, 24 Apr 2008 17:57:00 GMT

A new poll that shows that 16 percent of Pennsylvania white voters who were asked whether “the race of candidate was important” said yes—80 percent saidno. Of those who answered “yes” 54 percent said they’d support Obama in the general election—27 percent said they’d defect to McCain and 16percent said they’d stay home on election day and polish their guns, cuddle up with their bibles and nurse their bitterness.

The New York Times says that this means “Obama’s race could be a problem in the general election.” First reaction: a hearty “no duh”. Butlet’s also unpack those poll results and ask what they really tell us. Of course his race will repel, well, racist voters, of which no one doubts there are some. But before we conclude that 16 percent of Pennsylvania whites are racists, notice that of the 16 percent who said race mattered, 54 would support Obama, which suggests that for some Obama’s race is a plus. But what about those that won’t support him—about 7 percent? All racists? Isn’t it at least possible that some won’t support him despite, rather than because of his race?

I tried this thought experiment: if asked whether the sex of the candidate is important, I would answer “yes” because I think all things being equal it would be great to have a woman President. But sex is not enough to convince me to support Clinton over Obama—I support Obama despite his sex and because of his other virtues. Truth be told, alot of people I know-- including a lot of feminists--are pretty sick of Hillary Clinton, Bill Clinton, even Chelsea, who, unlike her parents really hasn’t done anything to deserve their contempt, and they'd probably have it in for Socks the cat too if he turned up on TV. Now I suppose some of them mightwell answer a poll: yes I think sex is important (I’d love to have a woman President--just not Hillary Clinton)---and no if Hillary is the nominee, by gum I’ll vote for McCain, or Ralph Nader, or stay home on election day and cuddle up with a cold martini and my warm, fuzzy Northern Californian sense of superiority. And the Times would take that answer as evidence of voter sexism. I imagine some Clinton supporters are beginning to feel equally irritated with Obama as this nasty campaign drags on. So maybe a lot this polling data is evidence of the costs of a protracted fight for the nomination, rather than inveterate racism on the part of voters.

Another piece of potentially misleading poll data: Clinton supporters are much more likely to defect to McCain or stay home if Obama is the nominee than Obama supporters are to defect or stay home if Clinton wins. Isn’t is possible that this result is skewed by the fact that Clinton is losing and Obama looks like the inevitable nominee? If my candidate is poised to win, I can afford to be magnanimous: “of course Hillary Clinton is a fine candidate and if she were to win (but of course she won’t) I’d support her energetically.” But if my person is losing, I might start to get a tiny bit, well, bitter. And maybe I’d even say things like “if that old school, politics-as-usual beltway insider steals the nomination in a brokered convention with her insider connections and underhanded politics—well, I’ll be dammed if I vote for her! I’d rather have Attila the Hun (or JohnMcCain) than continue the corrupt Clinton dynasty!” You haven’t heard alot of this because Obama is the presumptive nominee, but post-Pennsylvania you’re already hearing rumblings of defections to the Green party among Obama supporters should Clinton get the nomination.

No Time for Revival

Diane Marie Amann — Wed, 16 Apr 2008 10:10:00 GMT

Does the cruel-and-unusual punishments clause of the Eighth Amendment to the U.S. Constitution forbid execution for crimes that do not result in the death of the victim?

That's a wide-angle framing of the question on which the Supreme Court's set to hear oral argument this morning in the case of Kennedy v. Louisiana.

The narrower question is whether execution for rape of a child is constitutional. The state's brief stresses the age of the victim. No surprise there. For on matters such as possession of pornography, the court's allowed criminal punishment for conduct that the Constitution would protect if only consenting adults were involved. Such a narrow emphasis, however, obscures the question of proportionality that underpins any system of criminal justice.

Is a sentence of death grossly disproportionate and excessive punishment for the crime of rape, and therefore forbidden by the Eighth Amendment as cruel and unusual punishment?

Yes.

Or so said a majority of the court, in almost the exact same words, when it invalidated a death-penalty-for-rape in Coker v. Georgia (1977). But that was then, this is now. Justice John Paul Stevens is the only member of that majority still on the court, and in the interim three decades, concerns about crime have pushed to the fore.

Concerns about crime have not, however, fully displaced the concerns that animated the court in Coker. The concern that capital punishment for nonlethal crime evades proportionality was shared with jurists in other common law countries, briefing indicates. And there was another concern, too. Before Coker capital rape cases were brought overwhelmingly against African-American defendants, as Stuart Banner demonstrated in his The Death Penalty. Outlawing such cases thus eliminated a prime source of racially disparate sentencing. One sees no reason now for revival.

(Cross-posted on IntLawGrrls blog)