Second Verse, Same as the First

One of the few serious disagreements I had with the Leadership Conference on Civil Rights was about the infamous Durban anti-racism conference held in 2001. The LCCR was an integral player in getting it set up, and pushed quite hard for the US to participate, while at the same time working from the other end to tamp down on the rampant anti-Semitism and make it into an event worth working with. In the end, they achieved neither goal -- the US bailed and the conference was rife with vicious anti-Semitic activity. But I found out this summer that a sequel to Durban is on the horizon. My opinion was that the event was damaged beyond repair and it would be better to let the thing die. But the word I got was that the LCCR appears willing to jump once more into the breach and try and save the conference from itself.

Unfortunately, early indicators look like I had the right instincts. A variety of NGOs are already raising alarms that the conference's tenor is, once again, going to focus solely on Israel as the supreme global purveyor of evil and darkness, and resurrect long abandoned notions that the Israeli state is facially illegitimate and primarily (if not solely) at fault for the conflict with the Palestinians. The worrisome motions are being pushed by the Asia region states, as well as the Organization of the Islamic Conference.

The NGOs are fighting to derail these motions, but I doubt they will succeed. Not only do the two groups in question comprise a lot of states, but they also are nations which wield disproportionate influence upon the various non-aligned states, making it a difficult alliance to counter. Jews, whose global influence tends to come more in the non-existent mysterious cabal form, once again stand ready to learn a lesson about how much easier international power politics is when you represent hundreds of millions of people and huge swaths of the world's land mass and resources.



Leaflet circulated at the Durban I NGO conference. By contrast, even mild messages in support of Israel were expelled by conference organizers.

Wilson Execution Stayed

The 11th Circuit has stayed the execution of Troy Wilson. I grappled with some of the issues surrounding Mr. Wilson's potential innocence here. Recall that the U.S. Supreme Court gave a stay to Mr. Wilson earlier, only to later reject his appeal. So don't get your hopes up.

Those LAPD Profiling Stats

I flagged this study by Yale law professor Ian Ayres in the civil rights roundup [The link in which I've now fixed -- DS], but I just wanted to block quote some of the findings:

We found persistent and statistically significant racial disparities in policing that raise grave concerns that African Americans and Latinos in Los Angeles are, as we put it in the report, "over-stopped, over-frisked, over-searched and over-arrested." After controlling for violent crime rates and property crime rates in specific neighborhoods, as well as a host of other variables, we found the following:

For every 10,000 residents, about 3,400 more black people are stopped than whites, and 360 more Latinos are stopped than whites. Stopped blacks are 127% more likely to be frisked -- and stopped Latinos are 43% more likely to be frisked -- than stopped whites.

Stopped blacks are 76% more likely to be searched, and stopped Latinos are 16% more likely to be searched than stopped whites.

Stopped blacks are 29% more likely to be arrested, and stopped Latinos are 32% more likely to be arrested than stopped whites.

Now consider this: Although stopped blacks were 127% more likely to be frisked than stopped whites, they were 42.3% less likely to be found with a weapon after they were frisked, 25% less likely to be found with drugs and 33% less likely to be found with other contraband. We found similar patterns for Latinos.

Not only did we find that African Americans and Latinos were subjected to more stops, frisks, searches and arrests than whites, we also found that these additional police actions aren't because of the fact that people of color live in higher-crime areas or because they more often carry drugs or weapons, or any other legitimate reason that we can discern from the rich set of data we examined.

The LAPD, of course, is using the study as an impetus for much needed reform hotly contesting the validity of the numbers. Some of their objections are methodological, ones I think Prof. Ayres dispatches quite handily. But several betray a fundamental misunderstanding of what this sort of finding means, and demonstrates how the "are you calling me a racist!?!!?" reaction acts to stifle really important and necessary discussions.

The police representatives say, basically, that the study is flawed because a) it does not account for the race of the stopping officer and b) data cannot tell us what individual officers are thinking when they make any given decision to stop or frisk a suspect. Both of these objections operate from the same basic thought, which is basically that the purported conclusion of this report is that the LAPD is racist, that racism is purely a function of the state of mind of a particular actor, and that raw data can't provide that information and in any event it is patently absurd to think that, say, Black officers have racist views towards other Blacks.

Now, Prof. Ayres said that he did, actually, find that the racial disparities in rates of arrest did fall somewhat when at least one of the arresting officers was of the same race as the suspect. This, he points out, is bad news, because it indicates that the disparities may be attributable to racial bias. But, he goes further, that really isn't the point of the study -- it makes no claim as to the state of mind of any or all of the arresting officers. The point is to demonstrate that, whatever is driving the policing policies in Los Angeles, they are falling on Black and Latino persons far more than can be at all justified by legitimate policing goals. That's a problem regardless of what is in brains of the officers when they are making the decisions, and regardless of what race the arresting officer is.

What Prof. Ayres research shows, if anything, is that intention is not a necessary component to demonstrating a racially unjust distribution of effects. Responding to this type of data with flailing assertions about it's all meaningless because intent is missing prevents these really rather simple insights from getting into the public consciousness. I might say that intent or foreseeability is a component of moral culpability, and without knowing the state of mind of any individual LAPD officer I cannot justly label them bad persons. But showing that the systematic distribution of effects is improperly skewed so as to unfairly burden certain racial groups is sufficient to show that an injustice is present, and impel upon society a duty to rectify it.

Related Posts:
The Profile, 8/18/07

"Fit the Description", 12/14/06

Civil Rights Roundup: 10/23/08

Your daily dose of civil rights and related news

Breath-taking results from a study by Ian Ayres on racial profiling by the LAPD. I'm probably going to write a separate post on this one -- the data is jaw-dropping.

The polls on Proposition 8 have been narrowing, and it looks like the right to gay marriage will go down to the wire.

Three Jews, Four Opinions has a good perspective on how Jews concerned about Halakah should approach issues like same-sex marriage.

ACORN is fighting back against smears that it is (among other things) destroying the fabric of democracy.

America wastes the talents of immigrants with college and professional degrees. One in five college educated immigrants are either unemployed or in unskilled professions, and the problem persists even when the field is restricted to those here legally. Unsurprising note: Highly educated African and Latino immigrants fare worse than their Asian and European peers.

The number of low-income families in America has risen by 350,000.

The EU parliament has given a prestigious human rights award to a Chinese democracy proponent, in direct rebuke to the ruling Communist regime.

The Senate is trying to get the number of foreclosures under control in exchange for the massive bailout money the banks are getting from the federal government.

A federal court is preparing to rule on the propriety of citizenship tests for voters.

In Wisconsin, the forces who care about voter suppression (Democrats) gear up to do battle against those who care more about voter fraud (Republicans).

Though it has been trying to make some reforms, the system for re-enfranchising ex-felons in Florida remains seriously broken.

The Government Accountability Office blasted the civil rights record of the USDA, saying it was unresponsive to reports of discrimination and suggesting it be brought under external oversight.

The British High Court wants to see documents which might verify whether a British Guantanamo detainee was tortured.

Cotton Eye Joe

The correspondence of a certain confused LGM reader, who goes off on a rant about how horrifying socialism is and how the country is divided between hard working Americans and lazy moochers of the public dole, would be funny enough in its own right. But tack on the fact that her example of her membership in the ranks of the independent, don't need no government, work for a living crowd is her successful cotton farming operation, just adds a whole new level of hilarity.

For those curious, the amount America spends on (illegal, under international trade agreements) cotton subsidies is $3 billion yearly.

In related confusion about what socialism is, Mark Olson explains that while Barack Obama is not, technically, a socialist, under a more "casual" usage of the term he is, in fact, socialist, because on the continuum of government regulation he is somewhat closer to actual socialism than the speakers making the allegation. There is, of course, incongruity of labeling tax cuts for most Americans (but hiking top income rates from 36% to 39%) socialism, but identifying massive government buyouts and bailouts of entire industries and nationalizing the means of production as, well, something else. But even casting that aside, if Barack Obama is socialist under a definition by which we could call the Cato Institute "socialist" because it is more interventionist than Murray Rothbard, or the Bush administration is legitimately "fascist" because it is more relaxed about civil liberties than the Democratic Party, then it's hard for me to get all worked up about it.

Pat Buchanan and Tom Tancredo's Steamy Love Affair!

Not really. But Austria appears to have its equivalent going down:

The successor of the Austrian far-right leader Jörg Haider was dismissed yesterday after he revealed a “special” relationship “far beyond” friendship with his former mentor.

In emotional interviews with the national broadcaster and a tabloid newspaper Stefan Petzner spoke openly about his affair with Haider, who died at the age of 58 in a high-speed car crash after heavy drinking session at a gay club this month. Haider’s party, the Alliance for the Future of Austria, captured 11 per cent of the vote in national elections last month .

“He was the man of my life. Our relationship went far beyond friendship,” Mr Petzner, 27, said after only a week in the job, adding that Haider’s wife, Claudia, 52, “did not object” to their relationship.

Via LGM

Wardrobe Malfunction

One of the hot button issues of the day is Sarah Palin's $150,000 wardrobe, and whether she has to pay income taxes on it. To my ears, the real question is whether it is a just state of affairs where female politicians have to spend so much more on their personal appearance than their male counterparts. One tactful columnist had the following to say:

Today’s big So What: It cost $150,000 to dress Republican Sarah Palin. It is all about image in politics.

A killer presidential candidate needs killer clothes. Democrat Hillary Clinton wore cheesy polyester pantsuits. If she shelled out a few bucks on something you couldn’t get at Kmart, she might be president...

Women are supposed to look good and smell nice. The reason that Democrat John Edwards was mocked for his $400 haircuts was it was a girlish vanity. The “I Feel Pretty” video aims at his masculinity. The song is sung by a girl.

A double standard? You betcha.

To my mind, the burden being put on Gov. Palin is just an extreme version of the Jespersen dilemma. Jespersen was a female bartender working for Harrah's who was forced, under new grooming regulations, to wear makeup to her job. This imposed an additional hurdle to her entering the workforce: though men also had grooming requirements, they were generally less expensive to maintain than those given to women. In such a case, women are being penalized upon entering the workforce solely for being women: that second X chromosome means that they can be required to shell out more as a threshold requirement before they are allowed to compete for the same job men are going after. Likewise, Gov. Palin, because she's a woman, has to spend a lot more time and resources on her attire and appearance before she can compete as an equal in the political arena.

From a feminist perspective (which wants Gov. Palin to lose, but not because she is hobbled from competing as a woman), there are two angles of attack on this. On the one hand, you could indict the norms of appearance that require so much more out of women than men. Alternatively, one could (perhaps provisionally) accept those norms, and demand offsets so that the costs of their enforcement do not fall on women but on some other party. For example, if Harrah's Casino wants to demand women alter their appearance above and beyond their requirements for men, it could be forced to pay for the difference in value (I imagine if that requirement did exist, the gender-differential would be eliminated quite rapidly).

How it works in cases like this, where nobody is "forcing" Gov. Palin to spend so much on her clothes, but there is a generalized knowledge that if she didn't pay that extra attention, she'd be political toast, is more complicated. But the income tax question gives a hint. Regardless of whether Gov. Palin is correct in asserting that she does not have to pay taxes on her "borrowed" wardrobe is right as a matter of current law, one could argue that creating such an exception, by mitigating the cost of additional clothing (at least on the candidate) would help alleviate some of the burdens our gendered appearance norms currently place on female politicians. It wouldn't eliminate it entirely, as it still would cost more for Parties to run these candidates, but it would at least make a dent. A purist might also feel feminists advocating for such a rule would be capitulating to the legitimacy of the underlying gendered-appearance sentiment, which is what really has to be taken apart for gender equality to be obtained (that was the first approach I outlined). But advocates for this plan might respond that we can't wait for a revolution that might never arrive, and in the meantime provisionally accepting the realities of ingrained sexism, and working to mitigate their impact, is the best that can be hoped for (a Derrick Bell style argument).

All of which goes to show how deeply entrenched patriarchal norms continue to have an impact today, even against the most elite and accomplished female figures.

Bureau of Prisons Bans Shackling Pregnant Women

The Bureau of Prisons has barred the shackling of pregnant inmates during transportation, labor, and delivery. Recall that a recent case out of Arkansas held that such acts did not violate the 8th amendment's prohibition on cruel and unusual punishment. That was a state law, and this is a federal rule, so it wouldn't have applied in the particular case (unless it changed the calculus behind the ever-shifting "cruel and unusual" standard), but it does give human dignity advocates some desperately needed legal momentum.

Up and Down at UM

After the first year of barring race-conscious programs at public universities in Michigan, the local press has begun to examine the fall-out. Basically, the stats are mixed, but the upshot is that minority enrollment shifted to lower-ranked schools, and higher ranked programs are having trouble attracting even qualified minority applicants because their scholarship programs also had to be discontinued. One interesting outcome (though it might be statistical noise) is that minority enrollment dropped even at schools that did not previously use race conscious admissions procedures.

Also, interesting article given the topic: Richard Lempert, David Chambers, & Terry Adams, Michigan's Minority Graduates in Practice: The River Runs Through Law School, 25 L. & Soc. Inquiry 395 (2000). Basically, it surveyed the history of minority Michigan law students admitted under affirmative action programs, in terms of their success after graduation. The results? Under every metric measured, these students performed equal to their White peers.

But remember, they weren't qualified to be there.

FYI: It Still Won't Have Been Tried

Actual socialists know: Barack Obama ain't no socialist.

These are hard times to be a socialist in America. And not just because there's a bourgeois-bloated Starbucks on every other corner, thumbing its capitalist nose at the proletariat.

No, it's tough these days because you've got politicians on the right, the same guys who just helped nationalize the banking system, derisively and inaccurately calling the presidential candidate on the left a socialist. That's enough to make Karl Marx harumph in his grave.

Local communists, rarely tapped as campaign pundits, say Sen. Barack Obama and his policies stand far afield from any form of socialism they know.

John Bachtell, the Illinois organizer for Communist Party USA, sees attempts by Sen. John McCain's campaign to label Obama a socialist as both offensive to socialists and a desperate ploy to tap into fears of voters who haven't forgotten their Cold War rhetoric.

Via Ta-Nehisi Coates.

I remember reading that the head of the American Communist Party was asked by a reporter if "FDR's New Deal carried out the communist platform?"

The man responded: "Yeah, on a stretcher."

The Impartial Referee

SEC football referees as neutral originalist judges:

Democrats Love Superior Firepower

If Barack Obama advertised in video games. I particularly like the huge-ass tank with "HOPE" emblazoned on the side.

Also, McCain's video game ads.

Prosecutor Speaks in the Troy Davis Case

Former federal judge, now law professor Paul Cassell links to the prosecutor's account of what happened in the Troy Davis case. You may know about his case: After being convicted of murdering a police officer, Davis has been pursuing a new trial ever since seven of nine non-police witnesses against him recanted their testimony, basically saying they were coerced into giving their statements by the cops.

There's a lot of hand waving going on here, but basically the reliability of the recantations comes down to whether or not you think it is more likely that witnesses are subject to intimidation by police investigators, or by groups like Amnesty International investigating potential wrongful convictions. My default stance is to be suspicious of unrecorded police questioning in Black on White crimes in Georgia. The affadavits Amnesty provides are compelling to me because of their consistency -- they all give very similar accounts of police harassment, and come back to a consistent theme that the police wouldn't let the witnesses leave until they said what the police wanted to hear.

For his part, the prosecutor, Spencer Lawton, actually uses the 80% recantation rate as evidence in favor of collusion and manipulation. He raises the specter of anti-death penalty forces coming in, long after the event in question, and basically guilting the witnesses with the specter that their testimony may be putting an innocent man in prison. Is it possible you don't remember clearly? Are you sure that Davis is the shooter?

The problem with this defense is that it doesn't match up with the affidavits Amnesty actually obtained. They're not, by and large, based off fuzzy memories or unclear recollection of the events in question. They, nearly without exception, are premised off police intimidation to get certain testimony -- something unlikely to be that fuzzy and not premised off any difficulty in remembering the events of the murder. Lawton notes that the witnesses were questioned about this at trial and did not say anything about intimidation. But at trial the police threats (if they so happened) were likely to be fresh in the witnesses mind, and going against one's sworn statement raises the prospect of a perjury investigation (something which, if I were a sleazy cop, would be sure to remind my cowed witnesses of after they signed the document).

The other part of Lawton's argument, which is a bit more subtextual, is that the affidavits were acquired by groups with an anti-law and order agenda in general, who are motivated simply by blanket opposition to the death penalty. The problem is that Amnesty appears to have worked quite hard to acquire statements implicating another man in the crime. Opposition to the death penalty hardly seems consistent with trying to get another person convicted of capital murder (although they could hope that the new suspect would not get a death sentence).

All of this really just points back to my current, long-standing intuition about the death penalty. Our system is so badly broken that there is really no way that it can imposed in a fair and just manner, where we can be sufficiently assured of the defendant's guilt. When, for example, there isn't that essential trust that the police won't try and coerce testimony -- particularly when the victim was another officer -- it is simply impossible to evaluate the reliability of trial testimony in the face of future recantations. In such an environment, the death penalty cannot be justly put into practice.

Civil Rights Roundup: 10/20/08

Your daily dose of civil rights and related news

The US Supreme Court will resolve a circuit split on identity theft by illegal immigrants. The question is whether aggravated identity theft requires knowledge by the user that the documents he obtains are those of a real person, as opposed to fabrications.

Immigrants with family members on both sides of the US/Mexico border are dreading increases in border fortifications, as they may interfere with simple visits to the border to share pictures, food, or just conversation together across the line.

Meanwhile, the dance between border patrol agents, and those who are waiting for their chance to make it back over, continues along the edge of the fence.

In spite of all this, immigration has been a surprisingly quiet topic on the campaign trail. The Bishop of Orlando reminds the candidates, however, that it is not an issue they'll be able to ignore once in office.

DC is switching strategies on homelessness, trying to get the homeless permanent housing first before proceeding to crack the underlying causes of their plight.

More former DOJ officials are coming out with the obvious: the Bush administration's investigations into "voter fraud" are entirely politically motivated.

Unsurprisingly, the Wall Street Journal comes out in full support of the efforts to ban affirmative action, which they describe as "the same kinds of discrimination they were designed to prevent" (right down to the lynching, no doubt). Moral relativism, anyone?

Dog bites man in Cleveland, and Black defendants in low-level drug cases are treated substantially worse than their White counterparts.

Nebraska is changing the rules on its "safe haven" law, to allow only infants up to three days old to be dropped off without penalty.

Several luminaries, including Desmund Tutu and Sandra Day O'Connor, showed up at Harvard to speak at a conference on race relations.

Steve Chapman writes for Reason Magazine that "the people", not the courts, should decide when gay people are equal human beings.

Dueling Profs

Professor Strauss (in Elements of the Law), after assigning us a passage from Holmes' The Path of the Law: "Holmes originally became famous for his study on the Common Law, which I personally find unreadable...."

Professor Fennell's Torts assignment for Monday: Read pages 77-84 and 88-96 of Holmes' The Common Law.

Powell Endorses Obama

Former Secretary of State and Republican Party luminary General Colin Powell has endorsed Barack Obama for Presidency. Percentage of Republicans who thought he'd be a great Presidential candidate himself in the 1990s, who now will view him as a traitorous wench, at 80% and rising.

It was an interesting endorsement video to watch. It is clear that Powell thinks the modern Republican Party has stretched way beyond where he's willing to go in terms of its race rightward. The concerns he laid out about the current GOP extend from the selection of Gov. Sarah Palin as VP, to the prospect of two more conservative judges on the Supreme Court, to the steady increase of Islamophobic fear-mongering that has characterized the Party since 9/11. Now, it is fair to say that Powell -- himself always a rather moderate Republican -- may have simply been pushed off the edge as the party lines shift direction. And the Republican base will not take his defection as a repudiation, because Powell is precisely the type of fellow that they want out of the Party anyway. The inquisitorial process may soon give the GOP the purity of a political graveyard, but God help them if they aren't redoubling their efforts to excommunicate the insufficiently zealous.

But some of Powell's complaints should, in an ideal world, resonate with Republicans and Democrats alike. His anecdote about the Muslim-American soldier who died in Iraq for our country was quite moving, as was his rhetorical question about the seven year old Muslim kid who wonders if he can be President in America. The answer should be yes, but every signal we've received over the past few years indicates no. And that should trouble us, as it clearly does General Powell.

The other thing I wanted to mention is that it is clear this was a difficult endorsement for General Powell to make. Many Democrats had vague positive feelings towards McCain for awhile, but found them quite easy to discard once we witnessed the campaign 2008 version rear its ugly head. But to many independents and moderate Republicans, John McCain was something of a hero. He was their leading man -- a politician who they thought had integrity and unimpeachable character. General Powell stresses that his endorsement in no way represents a repudiation of Senator McCain. But it is clear he is deeply depressed by the direction Senator McCain has taken his campaign -- lots of clarity on Bill Ayers, very little on the economy. And I have to think that for many moderates, who saw in John McCain the very model of the right kind of politician, this election cycle must have been a painful experience indeed.