Who and What Is Racist, and What Difference Does It Make in Criminal Law?

I’ve said many times that race has no place in fair-minded thinking about criminal law, first because human beings should be judged as individuals and not as members of racial (or gender or other innate) groups; second because criminal law is about behavior not identity; and third because race does not determine anything at all with which criminal law specifically ought to concern itself.

But I’ve lost that debate.  It has become impossible in the current climate to exclude race from discussions of criminal law.  Given that as the state of play, what questions should we be asking?

The obvious first question is:  What makes a person a racist?  I used to think the answer to that was easy.  A person is racist if he treats a person of a different race less well than he would treat a person of his own simply because of the racial difference.  A plausible variant of that would be that a person is a racist if he believes a person of a different race is inferior even if he manages to treat everyone alike.

But a third definition now seems to be winning the competition:  Even if a person treats everyone alike and harbors no belief that people of one race are innately superior (or inferior) to those of another, he is still a racist if he supports policies or practices that have a disparate, adverse impact on one race compared to a different race.  Under this view, a person who supports, say, capitalism is a racist, because capitalist outcomes, in particular the distribution of wealth, show that whites as a group have a consistent advantage over blacks.  Similarly, a person is a racist if he supports merit-based college entrance exams and admissions, because whites as a group get better outcomes than blacks (although consistently worse outcomes than Asian-Americans, a racial difference that always seems to get pushed to the back of the bus, as it were).

But here’s the kicker.  Under this third definition (with which I emphatically do not agree), progressives are racists because they overwhelmingly support criminal justice policies that produce inferior  —  indeed, lethally inferior  —  outcomes for blacks.  As I noted in my contribution (edited here for clarity) to a recent post on another blog, Are Liberals Racists?

The main evidence liberals are anti-black racists is that they relentlessly push for policing and sentencing policies that will get blacks killed in wildly disproportionate numbers. We had less focused policing and de-emphasis on incarceration in the Sixties, Seventies, and much of the Eighties, when the murder rate skyrocketed. Slightly over half of murder victims are black, even though only one-eighth of the population is. When we changed our ways starting with Reagan/Bush, and over the last 30 years or so, the murder rate got cut in half, thus disproportionately benefiting blacks. Tens of thousands of black lives have been saved because of this  —  lives that would have been lost had the murder rate stayed where it was before we adopted tougher practices.  If we go back to the “failed policies of the past,” as Ronald Reagan would say, we’ll get the failed results of the past. Indeed, we’re doing that right now in “progressive” cities like Portland, Seattle, Chicago, NYC, and Minneapolis, where murder is spiking under progressive leadership. The number of black bodies filling up the morgues is way beyond what it was at this time last year.

Do liberals care? Let me ask that another way: Will they even talk about it?

When for years you support policies that disproportionately get blacks killed, knowing from decades of evidence that that’s what’s going to happen, I don’t know how that can be anything other than anti-black “racism” under the new definition. Indeed, I doubt the Klan came anywhere close to killing as many blacks as liberal criminal justice policies do.

Mind you, I don’t think I know a single liberal (or a single conservative) who’s racist as that term used to be understood.  But if we are to use the newer, more woke version hinging not on intent but on statistically disparate impact, there’s no other conclusion you can reach.  Liberal criminal justice policies in the past produced, and at present they are again producing, a substantial increase in the number of murders, and blacks bear a wildly disproportionate share of that burden.