A. The Criminalization Argument

In a recent article in this journal, Stephen Kershnar argues against rectificatory compensation for the descendants of American slaves. My concern in this discussion is with what I call the criminalization argument. According to Kershnar:

Armed with these statistics, Kershnar reasons:

For Kershnar, the difficulty presented by this “offset,” as he calls it, “challenge[s] the notion that on average any sum is owed to the descendants of slaves…because many of the persons who claim compensation on the basis of lost inheritance may end up owing more money to fellow citizens than they are owed.”⁶

Since the criminalization argument calls for a constraint on the extent of rectificatory compensation for the descendants of American slaves, the constraint only applies when such compensation is due. Hence I shall suppose that the slave descendants are due compensation. This being the case, there is no need to address justificatory arguments for compensation, including legal arguments of unjust enrichment. Moreover, any concerns about statutes of limitations are rendered moot.⁸

B. The Importance of the Criminalization Argument

It is important that philosophical analysis be brought to bear on the criminalization argument (hereafter, CA). As Bernard Boxill warns, since rectificatory issues such as this “can be very complex, there is considerable room for maneuvering, and creating distractions, and consequently for superior sophistication to be decisive, even against the truth.”¹⁰

Kershnar admits that he does not know “[w]hether this offset exceeds the compensation owed,” and so rightly characterizes this question as an “epistemic difficulty.”¹¹

Moreover, by claiming that a “significant portion” of the descendants of American slaves are criminals, the CA, in conjunction with some of the other claims advanced by Kershnar, helps to perpetuate a negative image of the descendants of American slaves in particular and African Americans in general. An example of such a claim can be found in Kershnar's rejection of any link between slavery, with its progeny of racial injustice, and the current economic state of blacks in America. He claims that, inter alia, “there is strong evidence to believe that there are genetic differences in the average intelligence of racial groups and that such differences will likely affect a group's economic performance.”¹²

It is important, therefore, that philosophical analysis be brought to bear on the CA.

A. Individuals and Groups

The most that Kershnar is willing to admit is that the “token harm of lost inheritance, and this harm alone,” is ground for the claim of rectificatory compensation on behalf of the slave descendants. On his view, “qua group[,] blacks do not have a legitimate claim to compensation, although qua collection [of individuals], blacks or the descendants of slaves may have a claim to compensation.”¹⁵

If it is correct to think that we ought to reject the conception of slave descendants as a group having a legitimate claim to rectificatory compensation, then surely we ought not to conceive of the entire population of African Americans as a group possessing this claim. But all that can be reasonably inferred from the assertion that “Blacks commit a substantial number of crimes,” is the conclusion that crime-related offsets may apply to some blacks. Since no conclusion regarding any particular black who is a descendant of American slaves with a legitimate rectificatory claim can logically follow from this assertion, the CA draws a conclusion (viz., that rectificatory compensation for each particular slave descendant ought to be reduced) that is not entailed in its premises. Consequently, the CA commits the fallacy of missing the point.

Some might object to this analysis, arguing that it misstates the CA. According to this objection, since it claims only “to the extent that” crime-related offsets “affects a substantial portion of the black community,” and since it holds only that such offsets “may reduce the compensation that is owed,” the CA does not miss the point—it claims only the mere possibility that crime-related offsets apply to the descendants of slaves. Suppose we concede this objection. As soon as we do, the best that can reasonably be said about the CA is that it is a weak argument. But we need not make this concession. Kershnar's claim that crime-related offsets “are owed by a significant portion of the descendants,” seems to make clear that the CA is being advanced as a strong argument. Indeed, the CA is hardly worth mentioning if it is to be interpreted as a weak argument and if “significant portion” does not imply at least something approaching “a majority.” This being the case, the CA must also be claiming that this significant portion of slave descendants to whom crime-related offsets apply follows from the “substantial number of crimes” committed by blacks. Since Kershnar thinks that rectificatory compensation can be due only to individuals, and since no conclusion regarding any particular black Americans who are descendants of American slaves with legitimate rectificatory claims can logically follow from his claim about black Americans as a group, the CA does in fact commit the fallacy of missing the point, and the objection does not go through.

One way to explain how this fallacy might be obscured is by way of what Patricia Williams calls a “conceptual cloak.” As Williams explains, the social lot for black men is “made far grimmer” than that of black women “by their having been used as the emblem for all that is dangerous in the world, from crime to disease. The conceptual cloak that makes any white criminal anomalous in relation to the mass of decent white citizens is precisely reversed for black men: any black criminal becomes all black men.”¹⁷

B. Criminal Wrongdoing and Moral Wrongdoing

A further difficulty with the CA is that it viciously conflates criminal and moral wrongdoing. According to H.L.A. Hart, “[t]he criminal law is something which we either obey or disobey,” and if we disobey or break what its rules require, “what we have done is legally ‘wrong.’…The punishment or ‘sanction’ which is attached by the law to breaches or violations of the criminal law is…intended to provide one motive for abstaining from these activities.”¹⁸

American slavery was not a crime. Although much of the global community (sans the United States) has recognized “that slavery and the slave trade are a crime against humanity and should always have been so, especially the transatlantic slave trade,”²²

So while a host of moral arguments could (and were) brought against American slavery, since no legal arguments grounded in U.S. law were available, American slavery did not constitute criminal wrongdoing. Consequently, the rectificatory compensation owed to the slave descendants is clearly grounded in moral wrongdoing.

This is consistent with Kershnar's view, since he thinks that the inheritance model is “independent of legal conventions or institutions.”²⁵

A likely objection to this analysis would claim that, since what is criminal is so often immoral, especially where felony crimes are concerned, the conflation of the criminal with the moral found in the CA is benign. Hence this conflation ought not to weigh against it. The problem with this objection is that by dismissing the need to establish the immorality of the crimes relied upon in the CA, it grants an affirmative answer to the question the CA begs, namely: Are all the crimes appealed to in the CA examples of moral wrongdoing?

Consider the claim of black arrests. Not only does it not follow from being arrested that one has in fact committed a crime, the commission itself is not necessarily entailed in having been convicted (the typical way in which we measure crimes committed). This is an especially salient point with respect to black men in America. As Sheri Johnson reports, when race is the only variable in mock jury studies, “statistically significant differences can be interpreted as reflecting a causal relationship between race and guilt attribution.”²⁶

These first two difficulties with the CA suggest what may be its fundamental flaw.

C. The Black Experience

The black experience in North America has been one of perpetual racial injustice from the arrival of the first Africans in the early seventeenth century to the present day. If the CA has a fundamental flaw, it is that it relies upon an impoverished perspective on this experience; in particular, it relies upon a perspective on the black experience that does not include the criminalization of blacks in America.³¹

The words of Justice Marshall are again instructive; he notes that:

The racial injustice of which Justice Marshall speaks ought not to be mistaken for “mere” discrimination; rather, as Derrick Bell points out, “[o]ur careers, even our lives, are threatened because of our color.”³³

Hence, as was suggested in our discussion of criminal and moral wrongdoing, “[t]he black accused needs only to be ‘seen’ to be guilty of a prior offense. His color is the evidence. He is guilty of blackness.”³⁶

As Lewis Gordon describes it, life at the front begins in childhood:

Charles Ogletree seemed to be summing up life at the front and its rules against, inter alia, Driving While Black (D.W.B.), when he observed that “we all really have the phenomenon called ‘living while black.’ It's inevitable.”³⁹

Violation of these rules of engagement can have detrimental, even fatal, effects. Thirty-one-year-old black businessman Jonny Gammage was a victim of D.W.B. while driving a late-model sports car through an all-white suburb of Pittsburgh, Pennsylvania. Unarmed and suspected of no crime, he was asphyxiated to death by five police officers within seven minutes of being stopped. Charges were filed against only three of the officers, and two of those cases were dismissed. Following the acquittal of the remaining officer by an all-white jury, Gammages's mother remarked: “We gave the system a chance to work, and it didn't work. I didn't believe the people who told us the system doesn't work for Blacks. I believed it would work. But I don't believe that anymore.”⁴⁰

According to the Stolen Lives Project, even though many newspaper accounts fail to report the race or ethnicity of individuals killed by police, the primary targets of police brutality are blacks and Latinos. Where race or ethnicity of the victims was known, the Project found that over three-fourths are people of color, that many of them are young, and that most of the victims are male. Moreover, they found that in the majority of killings by police, those who were slain “were unarmed and/or either committed no crime or were involved in a situation that should have been settled without shooting.”⁴²

For those innocent black men who manage to get sent to prison rather than to the morgue, some, after years of unjust incarceration, are lucky enough to be released. Of the 114 people released from death rows across the country on evidence of their innocence since 1973, nearly 46 percent are black.⁴⁴

Knowledge of the criminalizing reality of racial injustice, criminalizing discrimination, the equating of blackness with guilt by citizens and law enforcement, phenomena like Driving While Black, the killing of black men by police, and the many instances of unjust incarceration casts serious doubt on the criminality ascribed to blacks in the CA and thus on the cogency of the CA.

Some might object to my account of the black experience on the grounds that it paints a one-sided picture of black males. Surely not all black males are innocent victims of the criminal system. Since it is probably not the case that most blacks are innocent, this account of the black experience ought not to weigh heavily against our acceptance of the CA. First, nothing I have said suggests that all or even most black males are innocent victims of the criminal system. Rather, I have tried to show that blacks rightly perceive that they are routinely subjected to unjust treatment by that system.⁴⁶

More recently, Amnesty International USA reported that, while the U.S. population is 75 percent white and only 12 percent black:

This is wholly consistent with Justice Blackmun's observation that “[e]ven under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die.”⁵¹

Others might be inclined to object to the very fact that I have offered a sense of the black experience at all. According to this objection, even when the black experience is acknowledged, since “the numbers don't lie” (a few innocent blacks aside), it has little bearing on the statistics employed in the CA as evidence of black criminality. Consequently, the black experience and hence the black perspective have little bearing on the cogency of the CA. The criminality of black males is quite clear. It is simply a fact that as of 2001, black males had a 16.6 percent imprisonment rate versus a mere 2.6 percent for white males. Moreover, an estimated 32 percent of black males will enter state or federal prison during their lifetimes, compared to only 5.9 percent for white males.⁵³

As Charles Ogletree has observed, ours is “a dual justice system. It is not just based on race, but built on race. [It cannot be explained] under any theory other than race, how we have…two million people [in jail] and one million are African American. African Americans are not more inclined to be criminals. African Americans are not genetically more violent. There is a system that creates these problems.”⁵⁴

D. White Fear

If it is true that “[f]ew whites are able to identify with blacks as a group,”⁵⁶

Moreover, this image of blacks, in particular black males, is given strong reinforcement by the mass media. Moore describes his experience with the mass media thus:

Moore's observations are supported by “[a] substantial body of research [that] demonstrates the influence of racial stereotypes in attributions of criminality, and opinion polls [that] show that the public identifies blacks as more prone to criminality than other racial groups.”⁵⁹

In light of this public perception, it should come as no surprise to find an implicit appeal to white fear in the CA. But the CA does not implicitly appeal to white fear by way of its claim of black criminality alone. It also makes an implicit appeal to white fear by way of its focus on particular crimes. By citing the sorts of crime that whites are particularly fearful of being the victims of at the hands of blacks rather than those crimes most often committed by blacks, the CA makes an implicit appeal to white fear. The CA employs the claim that blacks commit a disproportionately large number of violent crimes, then points to the arrests of blacks for murder and rape. Since the point is to advance a strong argument by bringing out the commission of a disproportionately large number of violent crimes, it stands to reason that the most prevalent violent crimes would be employed in the CA. This being the case, since rape is not among the most prevalent violent crimes, including rape in this set of crimes seems to make sense only if it amounts to an appeal to white fear.

I trust it is already clear that the use of arrest statistics is at best problematic in light of the black experience in America. Second, the Bureau of Justice Statistics, which I suspect is the most reliable source of data on individuals incarcerated in the United States, does not, as near as I can tell, provide a racial or ethnic breakdown of inmates based on the particular crimes for which they were convicted. Third, the available data for 1995 show that of the estimated 989,007 prisoners in custody at state correctional institutions, 47 percent are incarcerated for violent offenses. Seven types of violent offenses are listed: murder, manslaughter, rape, other sexual assault, robbery, assault, and other violent offenses. In terms of the percentage of prisoners incarcerated for violent offenses, robbery ranks first (29 percent), murder second (23 percent), and assault third (20 percent). Rape ranks fifth (8 percent).⁶⁰

Given the apparent aim of employing crime statistics in the CA, it is clear that robbery ought to be on any list of the most prevalent violent crimes, along with murder or assault. Given the list of only two crimes provided by the CA, and given the relatively low percentage of violent crimes that are rapes, including rape on this list does much less in the way of providing empirical strength for the CA than would robbery or assault. Since including rape rather than a more prevalent crime yields a far less compelling CA, it would seem that the only plausible reason for including rape is to provide strength for the argument in some other way. Since the way in which it does so is neither empirical nor logical, it makes sense to think that rape is included on this list (whether consciously or not) to take advantage of the visceral work its presence is likely to accomplish by way of an implicit appeal to white fear. But how does including rape in the set of crimes employed by the CA make an implicit appeal to white fear?

The CA makes an implicit appeal to white fear by invoking the “white fear that black men will ravish white women,”⁶²

E. The Profitability of Criminalization

The CA also gains unwarranted strength from the criminalization phenomenon itself. Since criminalization is profitable both financially and politically, whites may have a prima facie attraction to any claims that help to foster the perception of black criminality. In terms of financial gain, prisoners, many of whom are black males, are employed as near-slave laborers. “Although the use of prison labor at this point is not extensive, it is growing. In addition to government agencies, private companies such as TWA, Chevron, Starbucks, IBM, Motorola, Honeywell, Boeing, and Microsoft use prison labor.” Private companies also profit by contracting to supply food and telephone services to prisoners. Inmates are charged “approximately six times the average long-distance rate by companies such as AT&T, Sprint, and MCI.”⁶⁶

In terms of political gain, “[t]he strategic placement of prisons in predominantly white rural districts often means that these districts gain more political representation based on the disenfranchised people in the prison, while the inner-city communities they come from suffer a proportionate loss of political power and representation.”⁶⁷

F. Self-Defeat

The CA also fails because of the sense in which it is self-defeating. The aim of the CA is to justify an offset to the rectificatory compensation due to the descendants of American slaves. It attempts to accomplish this aim by showing that compensation is due from the descendants themselves (the “offset”) for the crimes they have committed. Putting aside the difficulties concerning individuals and groups raised earlier, since the crimes in question have been committed by blacks, it stands to reason that the offsetting compensation is due to whites. This makes sense because whites possess the overwhelming majority of wealth in this country and so would bear the brunt of any rectificatory compensation rendered to the descendants. In addition, as I have tried to show, white fear of blacks helps to perpetuate the perception of blacks as criminals and whites as the victims of black criminality. Hence the claim that “crimes that victimize others ground a claim to compensation in the victim” means that crimes committed by blacks against whites ground claims to compensation from these black criminals to their white victims, and this compensation offsets the rectificatory compensation due to the slave descendants.

The problem with this rationale is that it relies upon whites being the victims of black crime. But in fact, “people of color are most often the victims of crimes committed by minorities.”⁶⁸

Some might object to this analysis because they think it misinterprets the CA. According to this objection, the offsetting compensation may indeed arise from “others” who are not white, including blacks and other minorities. This being the case, there is no sense in which the CA is self-defeating. The difficulty with this objection is that it leads us right back into the individuals/groups problem discussed above. If blacks who have been the victims of crimes by other blacks have ground for a claim of compensation, then this can begin to make sense only in those cases in which the criminal is a slave descendant and the victim is not. For all we know, black-on-black crimes overwhelming involve slave descendants as both perpetrator and victim. Additionally, the objection remains problematic even in cases involving other minorities. Since none has the economic clout of whites, none will be tasked with bearing the burden of rectificatory compensation. This being the case, there is almost no sense in which their victimization can ground a claim of compensation that would offset the rectificatory compensation due to the slave descendants.

G. The Absurdity of the Criminalization Argument

Another reason for thinking that the CA fails is because, by reductio, we find that its conclusion is absurd. If any change is warranted at all, it makes more sense to think that the rectificatory compensation due to the descendants of American slaves ought to be increased from whatever amount they are due by way of inheritance.

Suppose that the CA is correct: the rectificatory compensation owed to the descendants of American slaves may be reduced. Now consider what has been shown: blacks in America live in a society in which their careers and lives can be threatened simply on the basis of their skin color; they must learn almost from birth that there are certain rules of engagement to living while black that must necessarily be followed throughout their lives if they are to survive; they are criminalized to the point that their very existence is identical with criminality; they are subjected to racial injustice at the hands of the police, prosecutors, and juries; and their imprisonment is a source of economic and political gain for the dominant society. In short, although their reality is often hidden or obscured, they live in a world of perpetual and overarching racial injustice, the harm of which none of them is likely to escape. Although the dominant historical narrative “has continued to amplify the myths of automatic progress, universal freedom, and the American Dream without the ugly reality of racism seriously challenging the faith,”⁷⁰

It is absurd to conclude that, in light of this reality, whatever rectificatory compensation is due to the descendants by way of inheritance may be reduced. Given this reality, it makes more sense to think that if any change is warranted at all, the amount of rectificatory compensation due to the descendants ought to be increased so as to account for the injustices perpetrated against them in their lifetimes.

H. Quantificational Epistemic Problems

Finally, the CA fails because it amounts to a quantificational epistemic problem employed as an antijustificatory argument against compensation. Since all such problems fail when employed in this way, the CA also fails.

Quantificational epistemic problems in this sense are those problems that arise in compensatory scenarios when the amount of compensation in question is either completely unknown or at best unclear. Since such problems are wholly concerned with the amount of compensation in question, they are wholly unrelated to the justification for compensation in any given case. Hence employing a quantificational epistemic problem as an antijustificatory argument against compensation amounts to a red herring—it diverts our attention away from the actual justification for compensation, focuses our attention instead on how much compensation is due, then concludes that the justification for compensation is weakened as a result. A typical workplace scenario should suffice to demonstrate this fallacy.

Suppose that Q is a rising star at LMN Corporation. As a mid-level manager, Q has a corporate debit card to facilitate the numerous business trips each year that are required of managers in Q's department. The debit card balance must be paid in full by the end of each month. Q makes several business trips during the month of September. However, on each trip, Q opts to fly first class instead of coach, to order expensive vintage wines with dinner, and to have room service for all meals not taken with clients. Not surprisingly, Q's September travel expenditures exceed the amount budgeted by LMN.

Z, the person to whom Q reports, learns of Q's extravagance through the office grapevine. Z reasons that, given such extravagances, Q's September paycheck may be substantially smaller than usual. Of course, until the actual accounting is complete, Z is unclear as to the exact amount of what seems to be a likely reduction in Q's pay and hence how much Q will actually be owed. Z has a quantificational epistemic problem (although hardly one that Z is likely to lose any sleep over).

At the end of the month, LMN still charges the department to which Q is assigned one-twelfth of Q's annual salary for the month of September, and the payroll department allocates these funds to Q's payroll account. But why is this so? It is so because Q clearly deserves this monthly allocation. The moral (and legal) justification for the allocation of Q's monthly salary is quite clear, especially since Q is a rising star in the company. Further, Z's quantificational epistemic problem is wholly unrelated to the justification for Q's salary allocation. Even though Z has good reason to suspect that Q's compensation will be “offset” by unbudgeted travel expenses, the fact that the net compensation Q will actually be due come October 1st may be less than usual does nothing to weaken the justification for allocating the usual monthly salary amount. Any argument advanced by Z to reduce Q's monthly salary allocation that is grounded in this suspicion is moot. For all Z knows, Q sent in a check to the card company to cover the overages and will receive the usual monthly salary amount on October 1.

This example is paradigmatic of a quantificational epistemic problem employed as an antijustificatory argument against compensation. It therefore makes sense to think that all such arguments fail.

The CA claims that criminal acts on the part of some slave descendants may reduce whatever amount of compensation is owed to them. So even if we knew the exact amount of compensation each descendant was justified in receiving, given the CA, that amount would be rendered unclear until such time as we could resolve the question of criminality in each individual case. Hence the CA amounts to a quantificational epistemic problem. Since the CA is advanced as part of a case against compensation for the slave descendants, that is, as part of a rationale for thinking that compensation is not justified in their case, the CA is employed as an antijustificatory argument against compensation. Since all quantificational epistemic problems fail as antijustificatory arguments against compensation, the CA fails.