Knowledge And Decisions

The question of who is to pay compensatory costs often has a perverse answer where such costs are imposed through administrative or judicial processes which permit little or no effective feedback. If compensation were awarded in the generalized form of money, it might at least be possible to make the costs bear some relationship to ability to pay. But much of the compensatory activity takes the form of specific transfers in kind — notably, exemption from standards applied to other applicants for jobs, college admissions, etc. In this form, costs are borne disproportionately by those members of the general population who meet those standards with the least margin, and are therefore most likely to be the ones displaced to make room for minority applicants. Those who meet the standards by the widest margin are not directly affected — that is, pay no costs. They are hired, admitted, or promoted as if blacks did not exist. People from families with the most general ability to pay also have the most ability to pay for the kind of education and training that makes such performance possible. The costs of special standards are paid by those who do not. Among the black population, those most likely to benefit from the lower standards are those closest to meeting the normal standards. It is essentially an implicit transfer of wealth among people least different in nonracial characteristics. For the white population, it is a regressively graduated tax in kind, imposed on those who are rising but not those already on top.

Where racial specialness extends beyond the historic black-white dichotomy, the anomalies are compounded. Americans of Oriental ancestry are often included in special categories. Biology and history may provide some basis for this, but economics does not. Chinese-Americans and Japanese-Americans have long earned a higher income than white Americans. One-fourth of all Chinese employed in the United States are in the highest occupational category of professional and technical workers.¹⁸⁴ Historically, Orientals have in years past suffered some of the most extreme discrimination and violence seen in America.¹⁸⁵ Past discrimination in schooling, for example, is still visible in the high levels of illiteracy among older Chinese, so that despite the above average education of Chinese-Americans, they also have rates of illiteracy several times that of blacks.¹⁸⁶ No amount of favoritism to the son of a Chinese doctor or mathematician is going to “compensate” some elderly illiterate Chinese whose life has been restricted to working in a laundry or washing dishes in a restaurant.

The racial and ethnic mixture of the American population poses still more dilemmas for any attempt to establish institutionalized “special” treatment for race or ethnicity as defined in categorical terms. About half the total American population cannot identify their ethnicity, presumably because of its mixture.¹⁸⁷ About 70 percent of black Americans have some Caucasian ancestor(s),¹⁸⁸ and a leading social historian estimates the number of whites with some black ancestors in the tens of millions.¹⁸⁹ Trying to undo history in this population is like trying to unscramble an egg. Doing justice to individuals in our own time may be more than enough challenge.

CRIME

Criminal law is basically a process for transmitting and evaluating knowledge about the guilt or innocence of individuals suspected of crime. It is also a process for transmitting to actual and potential criminals effective knowledge of the costs of their crimes to others, and the willingness of those others to shift those costs back, in the form of punishments, to the criminals who created them.¹⁹⁰ There are costs to the transmission of knowledge of individual guilt or innocence to the legal system, costs to individual defendants caught up in that system, costs to convicted criminals, and of course costs to the victims of crimes and to the general public whose anxieties and precautions against crime are very real costs, whether expressed in money or not. Ideally, the sum of these costs is to be minimized — though not necessarily any one cost in isolation.