Racism: an Individual or Structural Problem?

Obviously, it’s both, to some degree. But I’ve been thinking lately about which way of looking at the problem is more helpful. Is racism fundamentally individual or institutional? I lean towards saying that individual racism is the cause of institutional racism, and that structural remedies can only do so much before they start doing more harm than good. After all, institutions are created by people, and not the other way around.

The post-WWII housing market was heavily segregated, in large part as a direct result of government action. Without government support, the rapid suburbanization of America could not have taken place.  Developers created suburbs with the help of the government and then intentionally excluded African-American home-buyers. This is an obvious example of institutionalized racism. However, this racism had its roots in individual attitudes and prejudices. Developers believed that allowing black people to live in a suburb would lower property values because of aggregate individual racist beliefs.

In large part, this turned out to be true, which is why we ended up with the phenomenon of “white flight.” Even when the government started to prohibit people from engaging in housing discrimination, neighborhoods didn’t integrate. When black families started to move into suburbs in any significant numbers, white families moved away in droves. The racist preferences of a critical mass of individuals prevented the structural remedy from being effective.

The lesson to learn from this is that even a neutral system can result in racist results if enough of the people participating in that system harbor racist attitudes.

So we’re confronted with a problem. How can we eliminate racism if removing structural biases doesn’t suffice? The problem is made virtually intractable if by “we” we mean the State. There just isn’t a way for the government to modify individual attitudes and preferences that doesn’t effectively amount to government indoctrination. That’s a very dangerous road to go down. The State can introduce structural biases with the aim of counteracting individual biases (like affirmative action), but this can sometimes breed racial resentment or reinforce racial stereotypes, exacerbating the root problem.

I think this is why some conservatives tend to be more skeptical of government attempts to eliminate racism. The problem is too complex for the government to solve, because racism isn’t just about warped institutions, it’s about warped souls. The government can reform institutions, but it cannot reform souls. The solution to the root causes of racial injustice has to lie outside the state.

On the other hand, progressives tend to emphasize the structural nature of racial injustice. I think they do so because this implies that racism is really not that hard of a problem to solve. All you have to do is dismantle the oppressive systems. You are made racist not by your individual prejudices, but by your opposition to dismantling the oppressive system. This way of thinking is a product of misguided Rousseauian optimism, the belief that, in the absence of society’s corrupting influence, we are naturally good. Such optimism regarding human nature, along with the scapegoating of “society” that tends to accompany it, is far more popular than it ought to be.

It’s become common in recent years for people to promote a new definition of racism that assumes the primacy of structural bias over individual bias. Supposedly, racism is about power, and not about prejudice. Thus, black people cannot be racist against white people, and all white people are necessarily racist against black people. This redefinition of “racism” is a clever move by the progressives, as it pushes us toward state-centered solutions to racism even though they won’t work. As such, we should resist this definitional change. The solution to racism isn’t the destruction of all of our liberal institutions any more than the cure for cancer is suicide. But we can’t continue to affirm this simple truth unless we recognize that racism infects souls before it infects institutions.

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Book Review: “The Collapse of American Criminal Justice”

One of my former professors, who has recently made criminal justice reform one of his main research areas, recommended that I read this book, The Collapse of American Criminal Justice, by William Stuntz. It’s a must-read if you care about criminal justice reform. Whereas it’s become popular to claim that our problems with mass incarceration are rooted in the war on drugs, Stuntz demonstrates unequivocally that the problems in the system go much deeper and much farther back. A combination of misaligned incentives between the many actors involved in the system, the Supreme Court’s ill-advised decisions tightening procedural requirements, and increasingly broad and rigid criminal statutes all combined to produce the nightmare we have today, in which our incarceration rate dwarfs that of any other liberal democratic nation in the world.

Stuntz provides a lot of helpful economic analysis. One of the main takeaways from the book is that the way costs are distributed in the criminal justice system encourages incarceration rather than crime prevention. Localities pay for their own police forces, while states pay for prisons. It is thus more cost-effective for local prosecutors to punish crime than to prevent it, as their counties do not bear the cost of punishment. Stuntz’s solution is to shift some of the costs of policing to the state, as well as to shift some of the costs of prison maintenance to localities. This way, localities have more of an incentive to prioritize prevention than punishment.

After all, there is an inverse relationship between the number of police officers active in a county and the number of incarcerations, which is at least a proxy for violent crime. Having more police around will make neighborhoods safer while also reducing the need to incarcerate such large swaths of our population. Arguably, increasing the presence of police in areas that most need policing will help to improve the quality of policing, as well. Strong police presence deters crime and gives officers less reason to fear for their lives (which is the most common defense offered by officers who kill innocent people).

Perhaps the most eye-opening part of the book for me was Stuntz’s discussion of the Supreme Court’s rulings on criminal procedure, such as Mapp v. Ohio, Miranda v. Arizona, and Gideon v. Wainwright. In effect, Stuntz argues, these rulings did little to secure the substantive rights of prisoners as a result of their misplaced emphasis on procedures. The Court’s rulings made conducting trials prohibitively expensive and less accurate in most cases, leading to the rise of plea bargaining in most or all cases. By tightening procedural requirements, the Court incentivized the abuse of plea bargaining that’s partially responsible for our overcrowded prisons. Moreover, the tightening of procedural requirements by the Court helps guilty and innocent alike, simultaneously making it harder to distinguish between the two, which is one of the most important functions of the justice system.

The shift away from trials and toward plea bargains was facilitated by the increasing codification of the criminal law. As Stuntz shows, criminal law used to be primarily judge- and jury-made. Locally selected juries had broad power to acquit defendants for just about any reason. This gave localities more control over the dispensation of justice in their communities. The vagueness inherent in unwritten common law gave room for communities to decide for themselves how to deal with crimes.

Nowadays, our criminal law is mostly found in statutes. Crimes are far more precisely defined, giving juries and judges less leeway in deciding who is to be punished and who is to be let go. Moreover, codification has made it possible for individuals guilty of only one criminal act to be charged with many crimes, each carrying its own sentence. The result is that criminal defendants have more incentive to accept plea bargains, even if the bargain includes a potentially excessive term. For a relatively minor criminal act, one might be put in jail for years and years as a result of the multiplication of criminal charges.

Stuntz doesn’t seem particularly optimistic about the possibility of reform. He suggests, however, that it’s possible. Reading the book has made me want to be a part of such reforms. I’m not sure what kind of involvement that might be.

Posted in Law

Arpaio and the Offensiveness of Forgiveness

Like many people, I am unhappy that Trump decided to pardon Joe Arpaio. He flagrantly disregarded the law and brutalized people during his time as Maricopa County Sheriff, and he will suffer no legal consequences for doing so.

This post isn’t primarily about Arpaio, though, but about the feeling of indignation many people feel at his pardon. I feel this indignation as well. As I was sitting in church on Sunday, it occurred to me that this feeling is a good illustration of the utter offensiveness of the Gospel.

I often hear people ask how a loving God can send people to Hell. But the following question is just as concerning: How can a just God forgive people who have committed great evils?

I want history’s Hitlers, Maos, and Stalins to burn in Hell. I don’t want to share the new earth with them. As far as I’m concerned, they don’t belong there. And yet, under God’s standards, I’m equally deserving of condemnation. If God can forgive me, then God can forgive anybody, can he not?

Something about forgiveness as such violates our sense of justice. When the offense is small, we are willing to let things slide, sometimes. But for a grave offense, we cannot tolerate forgiveness. Things need to be made right, somehow. An eye for an eye, a tooth for a tooth. Evil acts must be punished, not ignored or rewarded.

And it feels like unconditional forgiveness is the same as ignoring evil acts.

But since I am powerless before God, and I am obviously grateful for his forgiveness, I don’t have much choice but to trust his exercise of his rightful power. God’s justice is not bound by my ideas about justice. He will have mercy on whom he will have mercy. As an undeserving recipient of God’s mercy, I have no right to complain when he forgives people who I consider less deserving than myself. And from some other vantage point, God’s choice to forgive me is just as offensive as Trump’s decision to pardon Arpaio.

Don’t Defend Trump

I’ve seen people try to, and it doesn’t work.

Just in case there’s any confusion, this was after Trump walked back the statement he gave on Monday by saying that many of the participants in the Unite the Right rally were “fine people.” Bold, yes. Truthful, no. Any fine person with an ounce of sense would have bolted the moment the anti-Semitic chants started.

For those who do not know, “Alt-right” is a term coined by Richard Spencer. You know, the guy who throws up Nazi salutes, won’t condemn Adolf Hitler, and wants to get rid of the Jews. The alt-right is Spencer’s movement. Steve Bannon, Trump’s Chief Strategist, bragged about making Breitbart a platform for the alt-right. Trump knows who these people are. He just doesn’t want to condemn them because he’s a vile human being.

Sean means here that Trump rightly placed some of the blame for the violence on Antifa (the “alt-left,” as Trump called them). He loves it whenever the left gets unhinged. Unfortunately, he’s also a hack who doesn’t care about the truth unless it serves his agenda.

A common trend you’ll notice with these people is that they sold their souls to the Trump cause long ago, so it’s not too surprising that they’re fighting to the death to defend his utterly indefensible conduct. Unfortunately, these people still have some credibility, and I’m sure that there are many decent Americans who point to Jerry Falwell and think, “look, a good Christian man who thinks Trump said nothing wrong!” Not good. Not good at all.

A Missed Opportunity

When neo-Nazis decide to hold a rally, it’s reasonable to assume that the vast majority of Americans, regardless of their position on the political spectrum, do not support it. For one thing, the Nazis were our enemies in World War II. They killed Americans in battle. For another, overt racism is generally regarded by Americans as the evil that it is. Nazism isn’t popular. Just because you can dredge up a couple hundred angry white guys doesn’t mean you have a “movement” in any meaningful sense. It just means that you have a couple hundred angry white guys.

What happened in Charlottesville was despicable. It’s not surprising to me that Americans from across the political spectrum condemned the rally, as well as the violence that it occasioned. Indeed, I think the widespread condemnation is really good evidence that I’m right to think that America’s population is 99.99 percent against Nazism. What’s frustrating for me is that our response to this could have been one of national unity. We basically all agree that the people who went to this rally are the scum of America. Why not call attention to that? Why not emphasize that the left and right in America can be unified against race-based hatred?

Instead, what I’ve seen on Twitter is a bunch of people on the left criticizing people on the right for failing to condemn the white supremacists (even though they were condemning the white supremacists). And then when it became impossible to ignore the fact that basically every mainstream conservative figure had, in fact, condemned the rally in the strongest possible terms, people questioned their sincerity without grounds:

The political divide in our country is so deep that we can’t even unite in our opposition to Nazism. Even when our political foes do and say exactly what we do and say, we can’t give them any credit. Disgraceful.

Even the criticism of Trump’s weak statement on the rally has been mostly bipartisan, with many highly visible conservative figures calling attention to his failure to explicitly condemn white supremacy:

You’d think that, since people on the left and right are saying the same thing, they would stop being at each other’s throats for just a second, but we’re incapable of doing that. God help us.

Yes, Real Socialism. No, not Real Conservatism.

Twitter is filled to the brim with asinine opinions (known colloquially as “hot takes”), such as the following:

Is the Trump administration really a representative of “modern conservatism”? Surely not. Trump isn’t a conservative. He’s a right-wing populist authoritarian. Ask any conservative and they’ll tell you this.

(There’s also the important point that the memo didn’t say anything about white people being discriminated against. It was about affirmative action, yes, but Asians suffer far more as a result of affirmative action than white people do. It would be just as reasonable to assume the memo was about discrimination against Asian applicants. This isn’t about white victimhood. It’s about justice.)

One person did tweet an interesting thought on whether the Trump administration should be considered “conservative”, however:

And another person added:

This has made me think: is there a difference between saying “not real socialism” and “not real conservatism”? I think there is, and that I am justified in saying that Trump and the GOP as a whole don’t represent modern conservatism, while also saying that the numerous failed attempts to inaugurate a socialist utopia are representative of real socialism. The reason for this is because the core tenet of socialism inevitably leads to a the authoritarian horrors of the past century, whereas no core tenet of conservatism leads to rent-seeking on behalf of certain ethnic groups.

The core doctrine of socialism is the abolition of private property. Some way or another, “the people” own everything, whether it is via the state as their supposed representative or as a democratic collective. But the only way to abolish private property in a regime where people own property is to confiscate it from them, unless you can convince them to give it up voluntarily—and you can’t. Socialism thus necessarily begins with theft. The assumption socialists make to justify this initial act of theft also justifies all sorts of other human rights violations, which is why socialist regimes have been such terrible human rights violators. The assumption: the infinite good of inaugurating and advancing a socialist utopia far outweighs the finite bad of robbing or even killing a few of these fools who stand in our way.

Once you accept the assumption that all of your actions can be justified so long as they advance the Cause, you have created the ideal conditions for the rise of a totalitarian state. And even if you don’t become a despot, someone will kill you, seize power, and become a despot. It’s what happens when we tell people that it’s okay to steal and kill in order to advance political ends.

Nothing in conservatism, on the other hand, can be reasonably linked to the white victimhood politics of Trumpism. The key attributes of conservatism are skepticism of sweeping change, a strong emphasis on following established procedures, and advocacy of a smaller government. Each of these can potentially be useful for white victimhood politics, but if followed faithfully, they will often conflict with the white victimhood agenda. In contrast, the core tenet of socialism, when taken to its logical conclusion, permits and perhaps even encourages the sorts of atrocities (throw off the chains of bourgeois morality!) committed in every communist country that has ever existed, as long as someone thinks that the atrocities advance the proletarian revolution.

If we’re skeptical of sweeping change, then we should readily say that Trump’s hastily written travel ban was ill-advised. If we care about established procedures, then we should condemn Jeff Sessions’s promotion of civil asset forfeiture. If we want a smaller federal government, then we should fully repeal the ACA. Most of what this administration does flies in the face of conservative principles. And if you read conservative publications, then you know that conservatives are far from happy with it.

This is no surprise; it’s not like we elected him thinking he would govern as a conservative. Those conservatives who voted for him did so while holding their noses, hoping just that he would be better than Hillary. Trump’s rise to power and illiberal policies are not the fault of anything endemic to the conservative philosophy. Rather, our current political climate, combined with the extreme unpopularity of Hillary Clinton, gave him the perfect opportunity to win the presidency. And now he’s doing what we knew he would do.

Cake, Again

A while back, I wrote about the Colorado baker being sued for refusing to bake a cake for a same-sex wedding. Since then, the Court has granted cert in the case. Very exciting, especially with the addition of Neil Gorsuch to the bench.

Today, I have a somewhat different opinion about the case, which I got from a Twitter exchange with Ole Miss lawprof Chris Green.

I’m still not convinced that the state is required to make an exemption for the baker by the Free Exercise Clause. But Green’s claim that the Privileges or Immunities Clause protects against unjustified occupational restrictions is interesting to me. Unfortunately, the Privileges or Immunities Clause is dead, at least for now (see The Slaughterhouse Cases).