How, if at all, should race figure in criminal trials with a jury? How far should attorneys be allowed or encouraged to probe the racial sensitivities of jurors and what does this mean for the appropriate way to present cases which involve racial profiling and, therefore, are likely to pit the words and actions of a white policeman against those of a young black man?

According to Mathias Risse and Richard Zeckhauser, racial profiling can be justified in a society, such as the contemporary United States, where the legacy of slavery and segregation is found in lesser but, nonetheless, troubling forms of racial inequality. Racial profiling, Risse and Zeckhauser recognize, is often marked by police abuse and the harassment of racial minorities and by the disproportionate use of race in profiling. These, on their view, are unjustified. But, they contend, this does (...) not mean that all forms of racial profiling are unjustified; nor, they claim, need one be indifferent to the harms of racism in order to justify racial profiling. In fact, one of the aims of their paper is to show that racial profiling, suitably understood, “is consistent with support for far-reaching measures to decrease racial inequities and inequality.” Hence, one of their most striking claims, in an original and provocative paper, is that one can endorse racial profiling without being in any way indifferent to the disadvantaged status of racial minorities. In an initial response to these claims, I argued that Risse and Zeckhauser tend to underestimate the harms of racial profiling. I suggested two main reasons why they did so. The first is that they tend to identify the more serious harms associated with profiling with background racism, and therefore to believe that these are not properly attributable to profiling itself. The second reason is that they ignore the ways in which background racism makes even relatively minor harms harder to bear and to justify than would otherwise be the case. Hence, I concluded, racial profiling cannot be a normal part of police practice in a society still struggling with racism, although under very special conditions and with special regulation and compensation in place, it might be justified as an extraordinary police measure. I want to stand by those claims. However, Risse’s response to my arguments persuades me that I misinterpreted his earlier position in one significant respect. So I will start by explaining what interpretive mistake I believe that I made. I will then argue that despite Risse’s patient and careful response to my arguments, my initial concerns with his justification of profiling remain valid. -/- . (shrink)

Philosophical reflection on racial profiling tends to take one of two forms. The first sees it as an example of ‘statistical discrimination,’ (SD), raising the question of when, if ever, probabilistic generalisations about group behaviour or characteristics can be used to judge particular individuals.(Applbaum 2014; Harcourt 2004; Hellman, 2014; Risse and Zeckhauser 2004; Risse 2007; Lippert-Rasmussen 2006; Lippert-Rasmussen 2007; Lippert-Rasmussen 2014) . This approach treats racial profiling as one example amongst many others of a general problem in egalitarian (...) political philosophy, occasioned by the fact that treating people as equals does not always require, or permit, us to treat them the same. The second form is concerned with how racial profiling illuminates the nature, justification, and reproduction of hierarchies of power and privilege based on skin colour and morphology. This form of reflection on racial profiling is therefore less about the justification for judging people based on the characteristics of the group to which they (appear to) belong, and more concerned with the specific ways in which the association of racialized minorities – and, in particular, black people – with crime, contributes to, and reflects, racial inequality, and oppression.(Kennedy 1998; Zack, 2015; Lever, 2005; Lever 2007). Both approaches to profiling have much to recommend them and, taken together, they form an essential component of the political philosophy of race. The statistical approach has the merits of linking racial profiling, as practice, to a body of other practices that generate and justify inequalities based on factors other than race, but it typically offers little by way of insight into the role of racial profiling itself in sustaining racial inequality and injustice. The racial construction approach, for obvious reasons, is rather better at the latter task, but its insights tend to come at the price of a broader understanding of the ways in which inequality is reproduced and justified, or of the ethical dilemmas raised by our competing claims to security. As we will see, insights from both approaches can be synthesized to clarify what, if anything, is wrong with racial profiling and what broader conclusions for equality and security follow from the study of profiling. (shrink)

Many oppose the use of profile evidence against defendants at trial, even when the statistical correlations are reliable and the jury is free from prejudice. The literature has struggled to justify this opposition. We argue that admitting profile evidence is objectionable because it violates what we call “equal protection”—that is, a right of innocent defendants not to be exposed to higher ex ante risks of mistaken conviction compared to other innocent defendants facing similar charges. We also show why admitting (...) other forms of evidence, such as eyewitness, trace, and motive evidence, does not violate equal protection. (shrink)

This article analyses the moral status of racial profiling from a consequentialist perspective and argues that, contrary to what proponents of racial profiling might assume, there is a prima facie case against racial profiling on consequentialist grounds. To do so it establishes general definitions of police practices and profiling, sketches out the costs and benefits involved in racial profiling in particular and presents three challenges. The foundation challenge suggests that the shifting of burdens onto marginalized minorities (...) may, even when profiling itself is justified, serve to prolong unjustified police practices. The valuation challenge argues that although both costs and benefits are difficult to establish, the benefits of racial profiling are afflicted with greater uncertainty than the costs, and must be comparatively discounted. Finally, the application challenge argues that using racial profiling in practice will be complicated by both cognitive and psychological biases, which together reduce the effectiveness of profiling while still incurring its costs. Jointly, it is concluded, these challenges establish a prima facie case against racial profiling, so that the real challenge consists in helping officers practice the art of the police and not see that which it is useless that they should see. (shrink)

In 2001, three non-Aboriginal men in their twenties were charged with the sexual assault of a twelve year old Aboriginal girl in rural Saskatchewan. Legal proceedings lasted almost seven years and included two preliminary hearings, two jury trials, two retrials with juries, and appeals to the provincial appeal court and the Supreme Court of Canada. One accused was convicted. The case raises questions about the administration of justice in sexual assault cases in Saskatchewan. Based on observation and analysis of (...) the record, this paper: (1) examines relationships between legal errors dealing with availability of the defence of “belief in consent” and interpretation of the “all reasonable steps” provision, the need for retrials, and apprehended race-gender-age bias and discrimination; and 2) proposes incremental and systemic remedies to address the weaknesses in police, prosecutorial and judicial policy and practice highlighted by this case. (shrink)

Kant scholars have paid relatively little attention to his raciology. They assume that his racism, as personal prejudice, can be disentangled from his core philosophy. They also assume that racism contradicts his moral theory. In this book, philosopher Huaping Lu-Adler challenges both assumptions. She shows how Kant's raciology--divided into racialism and racism--is integral to his philosophical system. She also rejects the individualistic approach to Kant and racism. Instead, she uses the notion of racism as ideological formation to demonstrate how Kant, (...) from his social location both as a prominent scholar and as a lifelong educator, participated in the formation of modern racist ideology. As a scholar, Kant developed a ground-breaking scientific theory of race from the standpoint of a philosophical investigator of nature or Naturforscher. As an educator, he transmitted denigrating depictions of the racialized others and imbued those descriptions with normative relevance. In both roles, he left behind, as one of his legacies, a worldview that excluded non-whites from such goods as recognitional respect and candidacy for cultural and moral achievements. Scholars who research and teach Kant's philosophy therefore have an unshakable burden to take part in the ongoing antiracist struggles, through their teaching practices as well as their scholarship. And they must do so with a pragmatic attention to nonideal social realities and a deliberate orientation toward substantial racial justice, equality, and inclusion. Lu-Adler pushes the discourse about Kant and racism well beyond the old debates about whether he was racist or whether his racism contaminates his philosophy. By foregrounding the lasting legacies of Kant's raciology, her work calls for a profound reorientation of Kant scholarship. (shrink)

Racial profiling has come under intense public scrutiny especially since the rise of the Black Lives Matter movement. This article discusses two questions: whether racial profiling is sometimes rational, and whether it can be morally permissible. It is argued that under certain circumstances the affirmative answer to both questions is justified.

In a recent article in Respublica, Jesper Ryberg argues that CCTV can be compared to a little old lady gazing out onto the street below. This article takes issue with the claim that government surveillance can be justified in this manner. Governments have powers and responsibilities that little old ladies lack. Even if CCTV is effective at preventing crime, there may be less intrusive ways of doing so. People have a variety of legitimate interests in privacy, and protection for these (...) is important to their status as free and equal citizens. Consequently, though necessary, effectiveness is insufficient to justify CCTV in a democracy. (shrink)

In response to Zack’s “White Privilege​ and Black Rights”, I consider her account of the hunting schema in light of police violence against black women. I argue that although Zack provides us with a compelling account of racial profiling and police brutality, the emotional aspect she attributes to the hunting schema is too charitable. I then claim that Zack’s hunting schema fails to account for state violence against black women and in doing so she only tells a partial story (...) of comparative injustice as it relates to police brutality of blacks. (shrink)

Jury science is fraught with difficulty. Since legal and institutional hurdles render it all but impossible to study live criminal jury deliberation, researchers make use of various indirect methods to evaluate jury performance. But each of these methods are open to methodological criticism and, strikingly, some of the highest-profile jury research programmes in recent years have reached opposing conclusions. Uncertainty about jury performance is an obstacle for legal reform—ongoing debates about the ‘justice gap’ for complainants (...) of sexual offences has rendered these problems stark. This paper proposes a way to advance the debate. (shrink)

The Psychosis of Race offers a unique and detailed account of the psychoanalytic significance of race, and the ongoing impact of racism in contemporary society. Moving beyond the well-trodden assertion that race is a social construction, and working against demands that simply call for more representational equality, The Psychosis of Race explores how the delusions, anxieties, and paranoia that frame our race relations can afford new insights into how we see, think, and understand race's pervasive appeal. With examples drawn from (...) politics and popular culture--such as Candyman, Get Out, and the music of Kendrick Lamar--critical attention is given to introducing as well as explicating on several key concepts from Lacanian psychoanalysis and the study of psychosis, including foreclosure, phallus, the Name-of-the-Father, sinthome, and the objet petit a. By elaborating a cultural mode to psychosis and its understanding, an original and critical exposition of the effects of racialization, as well as our ability to discern the very limits of our capacity to think through, or even beyond, the idea of race, is provided. The Psychosis of Race speaks to an emerging area in the study of psychoanalysis and race, and will appeal to scholars and academics across the fields of psychology, sociology, cultural studies, media studies, and the arts and humanities. (shrink)

Researchers often lack the necessary data to credibly estimate racial discrimination in policing. In particular, police administrative records lack information on civilians police observe but do not investigate. In this article, we show that if police racially discriminate when choosing whom to investigate, analyses using administrative records to estimate racial discrimination in police behavior are statistically biased, and many quantities of interest are unidentified—even among investigated individuals—absent strong and untestable assumptions. Using principal stratification in a causal mediation framework, (...) we derive the exact form of the statistical bias that results from traditional estimation. We develop a bias-correction procedure and nonparametric sharp bounds for race effects, replicate published findings, and show the traditional estimator can severely underestimate levels of racially biased policing or mask discrimination entirely. We conclude by outlining a general and feasible design for future studies that is robust to this inferential snare. (shrink)

Over the past decade, many politicians and celebrities in North America have found themselves embroiled in scandals that involved them having worn black make-up and in at least one incident white make-up. In most of these cases, the used make-up was part of a costume for Halloween, Purim, Carnival, or a themed party. This article challenges the view that wearing cross-racial make-up on such occasions as part of personal costumes—as opposed to costumes that are integral to specific cultural traditions, (...) such as the New Orleans Zulu parade—is always wrong. To do so, it assesses the five most promising objections to this practice. Although some of these objections count against certain uses of cross-racial make-up, I show that in several high-profile cases where such make-up was worn, none of them had force, whether because the objections themselves were implausible and/or because they did not apply. (shrink)

This paper proposes that the question “What should I believe?” is to be answered in the same way as the question “What should I do?,” a view I call Equal Treatment. After clarifying the relevant sense of “should,” I point out advantages that Equal Treatment has over both simple and subtle evidentialist alternatives, including versions that distinguish what one should believe from what one should get oneself to believe. I then discuss views on which there is a distinctively epistemic sense (...) of should. Next I reply to an objection which alleges that non-evidential considerations cannot serve as reasons for which one believes. I then situate Equal Treatment in a broader theoretical framework, discussing connections to rationality, justification, knowledge, and theoretical vs. practical reasoning. Finally, I show how Equal Treatment has important implications for a wide variety of issues, including the status of religious belief, philosophical skepticism, racial profiling and gender stereotyping, and certain issues in psychology, such as depressive realism and positive illusions. (shrink)

For more than two decades, police in the United States have used facial recognition to surveil civilians. Local police departments deploy facial recognition technology to identify protestors’ faces while federal law enforcement agencies quietly amass driver’s license and social media photos to build databases containing billions of faces. Yet, despite the widespread use of facial recognition in law enforcement, there are neither federal laws governing the deployment of this technology nor regulations settings standards with respect to its development. To make (...) matters worse, the Fourth Amendment—intended to limit police power and enacted to protect against unreasonable searches—has struggled to rein in new surveillance technologies since its inception. -/- This Article examines the Supreme Court’s Fourth Amendment jurisprudence leading up to Carpenter v. United States and suggests that the Court is reinterpreting the amendment for the digital age. Still, the too-slow expansion of privacy protections raises challenging questions about racial bias, the legitimacy of police power, and ethical issues in artificial intelligence design. This Article proposes the development of an algorithmic auditing and accountability market that not only sets standards for AI development and limitations on governmental use of facial recognition but encourages collaboration between public interest technologists and regulators. Beyond the necessary changes to the technological and legal landscape, the current system of policing must also be reevaluated if hard-won civil liberties are to endure. (shrink)

This article develops an intuitive idea of proportionality as a placeholder for a substantive conception of equality, and contrasts it with Ripstein’s ideas, as presented in an annual guest lecture to the Society of Applied Philosophy in 2016. It uses a discussion of racial profiling to illustrate the conceptual and normative differences between the two. The brief conclusion spells out my concern that talk of ‘proportionality’, though often helpful and, sometimes, necessary for moral reasoning, can end up concealing, rather (...) than illuminating, people’s claims to be treated as equals. (shrink)

I argue racial injustice undermines the reliability of news source reports in the information domain of racial injustice. I argue that this in turn undermines subjects’ doxastic justification in inferences they base on these news sources in the racial injustice information domain. I explain that racial injustice does this undermining through the effect of racial prejudice on news organizations’ members and the effect of society's racially unjust structure on non-dominant racial group-controlled news sources.

In *Engaging Capital Emotions,* Douglas Berman and Stephanos Bibas argue that emotion is central to understanding and evaluating the death penalty, and that the emotional case for the death penalty for child rape may be even stronger than for adult murder. Both the Berman and Bibas article and the subsequent Supreme Court decision in Kennedy v. Louisiana (striking down the death penalty for child rape) raise difficult questions about how to measure the heinousness of crimes other than murder, and about (...) the role the pain suffered by victims and victims' families should play in this inquiry. In this Reply, I agree with the authors on the importance of confronting emotion's role in capital punishment, for reasons I discuss in Part A. However, I disagree with their claim that the moral outrage evoked by child rape supports making it a capital crime. Part B explores the difficulties of using the existence of moral outrage as a measure of appropriate punishment. Part C argues that the penal system should not merely reflect moral outrage, but channel and educate it. It suggests that the availability of the death penalty may create an anchoring effect, communicating the message that the death penalty is the proper way to express moral outrage and to honor the worth of murder victims. It explores the consequences of this message. Section II focuses on the role of emotion in deciding whether child rape should be a capital crime. Part A considers the problematic role of victim harm in determining whether the death penalty is appropriate. It explores the question, raised in Kennedy v Louisiana, of whether the effect of a capital trial on child rape victims ought to be part of the calculus. Part B argues that there are three particular problems with allowing juries to sentence child rapists to death: the deleterious effect of anger and empathy, the problem of generic prejudice, and the issue of race. (shrink)

Criminal juries make decisions of great importance. A key criticism of juries is that they are unreliable in a multitude of ways, from exhibiting racial or gendered biases, to misunderstanding their role, to engaging in impropriety such as internet research. Recently, some have even claimed that the use of juries creates injustice on a large-scale, as a cause of low conviction rates for sexual criminality. Unfortunately, empirical research into jury deliberation is undermined by the fact that researchers are (...) unable to study live juries. The indirect sources of evidence used by researchers suffer from various problems, the most important of which is dubious levels of ecological validity. Real jury research—studying live jury deliberation—is controversial. However, as I argue, the objections to it are unconvincing. There is in fact a moral imperative to facilitate real jury research. (shrink)

On most accounts, beliefs are supposed to fit the world rather than change it. But believing can have social consequences, since the beliefs we form underwrite our actions and impact our character. Because our beliefs affect how we live our lives and how we treat other people, it is surprising how little attention is usually given to the moral status of believing apart from its epistemic justification. In what follows, I develop a version of the harm principle that applies to (...) beliefs as well as actions. In doing so, I challenge the often exaggerated distinction between forming beliefs and acting on them.1 After developing this view, I consider what it might imply about controversial research the goal of which is to yield true beliefs but the outcome of which might include negative social consequences. In particular, I focus on the implications of research into biological differences between racial groups. (shrink)

Numerous studies indicate that racial minorities are both more likely to be executed for murder and that those who murder them are less likely to be executed than if they murder whites. Death penalty opponents have long attempted to use these studies to argue for a moratorium on capital punishment. Whatever the merits of such arguments, they overlook the fact that such discrimination alters the costs of murder; racial discrimination imposes higher costs on minorities for murdering through tougher (...) sentences, and it imposes lower costs on whites for murdering minorities by dispensing weaker sentences. These cost differentials constitute an injustice not simply to actual minority defendants in capital cases, nor simply to the actual minority victims of murder, but to all members of minority communities. I here offer two arguments for a moratorium on capital punishment: The first draws upon evidence of racial discrimination against minority defendants in capital cases, and claims that such discrimination modifies the costs of murder in such a way that minority individuals do not enjoy equal status under the law. The second draws upon the evidence regarding racial discrimination in relation to the race of victims, and claims that such discrimination modifies the costs of murder in such a way that minority individuals do not enjoy the equal protection of the law. Thus, by not assigning equal costs to murder, the American criminal justice system fails to provide racial minorities the equality under the law and discounts the value of their lives and liberties. A moratorium is the least unjust response to such a social injustice. I also reply to the criticism that a moratorium prevents us from executing deserving murderers. (shrink)

Most social policies cannot be defended without making inductive inferences. For example, consider certain arguments for racial profiling and affirmative action, respectively. They begin with statistics about crime or socioeconomic indicators. Next, there is an inductive step in which the statistic is projected from the past to the future. Finally, there is a normative step in which a policy is proposed as a response in the service of some goal—for example, to reduce crime or to correct socioeconomic imbalances. In (...) comparison to the normative step, the inductive step of a policy defense may seem trivial. We argue that this is not so. Satisfying the demands of the inductive step is difficult, and doing so has important but underappreciated implications for the normative step. In this paper, we provide an account of induction in social contexts and explore its implications for policy. Our account helps to explain which normative principles we ought to accept, and as a result it can explain why it is acceptable to make inferences involving race in some contexts (e.g., in defense of affirmative action) but not in others (e.g., in defense of racial profiling). (shrink)

Does it matter that almost all juries in England and Wales are all-White? Does it matter even if this result is the unintended and undesired result of otherwise acceptable ways of choosing juries? Finally, does it matter that almost all juries are all-White if this has no adverse effect on the treatment of non-White defendants and victims of crime? According to Cheryl Thomas, there is no injustice in a system of jury selection which predictably results in juries with no (...) minority members so long as this result is not deliberate, and does not adversely affect the treatment of minority defendants and victims of crime. My view is different. In and of itself, I believe, something is wrong with a system of jury selection that predictably results in all-White juries in a diverse society, such as our own. Absent reason to believe that we lack a better alternative to current modes of jury selection, a commitment to democratic government and to the equality of citizens – or so I will argue – condemns existing arrangements as unjust, whether or not they have adverse effects on jury decisions, or on the ways in which our society approaches issues of race and crime. (shrink)

Dieser Beitrag befasst sich mit der Befürchtung, dass eine Erweiterung der DNA-Analyse von Tatortspuren für Zwecke der Polizeiarbeit zu Diskriminierungen führen wird. Diese Erwartung bezieht sich insbesondere auf die Ermittlung der sogenannten biogeografischen Abstammung und der Hautschattierung. In dieser Untersuchung werden einige Stellen im Ermittlungsprozess, an denen auf Grundlage solcher Analysen Diskriminierungspotential auftreten könnte, zunächst gesammelt und dargelegt. Im zweiten Teil wird dann der Diskriminierungsbegriff genauer beleuchtet. Dabei wird sich zeigen, dass verschiedene Positionen zu der Frage, was genau eine Diskriminierung (...) moralisch problematisch macht, zu unterschiedlichen Einschätzungen der DNA-Phänotypisierung in der Polizeiarbeit führen. / There is a concern according to which analyzing crime scene DNA to determine biogeographic origin and skin color of suspects can lead to discrimination against minority populations. This article summarizes and explains some of those parts of the investigation process that can give rise to discrimination. The second part of the paper offers an analysis of the notion of discrimination and presents different accounts of the exact ground of its moral wrongness. As it will emerge, these different accounts lead to different assessments of the use of DNA phenotype analyses in police investigations. (shrink)

I submit that the critical epistemology of race and standpoint literature has not explicitly focused on the properties of information about, say, racial or gender injustice in a way similar to how epistemologists have focused on propositions and information when they describe propositional justification. I describe information in the racial-injustice-information domain in a way similar to how epistemologists describe propositional justification. To this end, I argue (C1) that if subjects in racially unjust societies tend to violate norms that (...) promote a community’s reliable information flow because racial prejudice is widely held in racially unjust societies, then racial injustice can make information flow less reliably in a community. I also argue (C2) that if racial prejudice can make information flow less reliably in a community, then information that non-dominant subjects are more likely to have will less reliably flow to community members who lack it. (shrink)

While this article aims to explore the connections between citizenship and ‘race’, it is the first study to use fictional tools as a sociological resource in exemplifying the deviation between citizenship in principle and practice in an Austrian context. The study involves interviews with 73 Austrians from three ethnic/racial groups, which were subjected to a directed approach to qualitative content analysis and coded based on sentences from George Orwell’s fictional book, ‘Animal Farm’. By using fiction as a conceptual and (...) analytical device, this article goes beyond the orthodox particulars of citizenship to expose the compressed entitlements of some racial/ethnic minorities. In particular, data analysis revealed two related and intertwined central themes: (a) “all animals are not equal or comrades”; and (b) “some animals are more equal than others”. All ‘animals’ may be equal in principle, whereas, in practice, their ‘race’ serves as a critical source of social (dis)advantage in the ‘animal kingdom’. Thus, since citizenship is a precondition for possessing certain rights that non-citizens are not granted, I argue that citizenship cannot only be judged by whom it, in theory, excludes (i.e., non-citizens), but also by how it treats the included (i.e., citizens) on the basis of their ‘race’. I conclude that skin colour is a specific aspect of the hierarchy of citizenship in Austria, which reinforces that ‘some animals are more equal than others’. (shrink)

Recent studies demonstrating epigenetic and developmental sensitivity to early environments, as exemplified by fields like the Developmental Origins of Health and Disease (DOHaD) and environmental epigenetics, are bringing new data and models to bear on debates about race, genetics, and society. Here, we first survey the historical prominence of models of environmental determinism in early formulations of racial thinking to illustrate how notions of direct environmental effects on bodies have been used to naturalize racial hierarchy and inequalities in (...) the past. Next, we conduct a scoping review of postgenomic work in environmental epigenetics and DOHaD that looks at the role of race/ethnicity in human health (2000–2021). Although there is substantial heterogeneity in how race is conceptualized and interpreted across studies, we observe practices that may unwittingly encourage typological thinking, including: using DNA methylation as a novel marker of racial classification; neglect of variation and reversibility within supposedly homogenous racial groups; and a tendency to label and reify whole groups as pathologized or impaired. Even in the very different politico-economic and epistemic context of contemporary postgenomic science, these trends echo deeply held beliefs in Western thinking which claimed that different environments shape different bodies and then used this logic to argue for essential differences between Europeans and non-Europeans. We conclude with a series of suggestions on interpreting and reporting findings in these fields that we feel will help researchers harness this work to benefit disadvantaged groups while avoiding the inadvertent dissemination of new and old forms of stigma or prejudice. (shrink)

Juvenile offenders are sometimes transferred to a criminal court where they may stand trial as adults. The rationale for this current trend cannot be justified based on evidence from developmental psychology, the evidence of consistent positive effects for particular intervention strategies, and ethical arguments for justification of punishment. The rationale in actuality reflects the selective manipulation of the alternative conceptions of young people as dependent and vulnerable or as autonomous and responsible to continue to justify policies that entail cultural and (...) racial discrimination. Discretionary decisions at various stages of the justice process amplify racial disparities as minority youths proceed through the system and result in more severe dispositions that for comparable White youths. (shrink)

In the literature on transitional justice, there is disagreement about whether countries like the United States can be characterized as transitional societies. Though it is widely recognized that transitional justice mechanisms such as truth commissions and reparations can be used by Global North nations to address racial injustice, some consider societies to be transitional only when they are undergoing a formal democratic regime change. We conceptualize the political situation of low-income Black communities under the U.S. imprisonment and policing regime (...) in terms of three criteria for identifying transitional contexts: normalized collective and political wrongdoing, pervasive structural inequality, and the failure of the rule of law. That these criteria are met, however, does not necessarily mean that a transition is taking place. Drawing on the American political development and abolition democracy literatures, we discuss what it would mean for the United States to transition out of its present imprisonment and policing regime. A transitional justice perspective shows the importance of not only pushing for truth and reparation, but for an actual transition. (shrink)

This paper examines constitutional issues concerning same-sex marriage. Although same-sex relations concern broader ethical issues as well, I set these aside to concentrate primarily on legal questions of privacy rights and equal protection. While sexual orientation is neither a suspect classification like race, nor a quasi classification like gender, there are strong reasons why it should trigger heightened scrutiny of legislation using sexuality as a standard of classification. In what follows, I argue that equal-protection doctrine is better suited for including (...) same-sex couples where legal benefits and burdens of marriage are at stake. (1) I reconstruct arguments from privacy and the controversial ruling of Bowers v. Hardwick but discount this strategy for problematic legal reasons. (2) In order for equal protection to apply, sexual orientation must meet the criteria of suspect classification that the Court has established. (3) Since sexual orientation meets these criteria, heightened scrutiny should be applied to such legislation on equal-protection grounds. (4) Finally, I rely on some familiar Rawlsian arguments of public justification that demonstrate why this extension of marriage rights is consistent with basic constitutional principles. (shrink)

The availability of the defence of belief in consent under section 265(4) is a question of law, subject to review on appeal. The statutory provision is based on the common law rule that applies to all defences. Consideration of the defence when it is unavailable in law and failure to consider it when it is available are both incorrect. A judge is most likely to avoid error when ruling on availability of the defence if the ruling: (1) is grounded on (...) sound analysis of the substantive basis for the defence and its relationship to the principles of criminal responsibility; and (2) uses precise legal criteria to govern practical application of section 265(4) to the evidence in specific cases. The guidelines proposed in Part I are based on analyses of the substantive defence and culpable awareness and were developed to ensure that appropriate criteria are properly used when section 265(4) is applied. When a trial judge rules that the defence is available in law, the trier of fact must determine whether the defence is available on the facts as found, based on the evidence in the case. The model jury instructions proposed in Part II are designed to ensure that deliberations by the trier of fact are also guided and shaped by appropriate legal criteria. At both stages, the objective is to ground the deliberation process on fact, not fiction, and to regulate the exculpatory effect of the defence by using legal norms to exclude excuses based on extra-legal considerations such as sexual/racial fantasy, stereotype and myth, or community attitudes and custom. (shrink)

While recent scholarship has argued for the utility of W. E. B. Du Bois’s thought for democratic theory, his career-long emphasis on the problem of social equality—and the solution of self-conscious manhood—has gone largely unnoticed. In this article, I argue that while Du Bois’s emphasis on social equality powerfully situates racial oppression as a social and epistemic problem, his solution of self-conscious manhood paradoxically reproduces the very conditions of social inequality he seeks to combat. Open to people of all (...) races, genders, and classes, the path of self-conscious manhood consists in radical truth-telling, a free anarchy of the spirit, a will to strive and act, and the purity of isolation. However, through a close reading of Du Bois’s biographies, editorials, and fiction, I show that self-conscious manhood centers an exclusionary and atomized ethic of self-creation rather than producing a democratic political and social order. (shrink)

Studies on racial and religious discriminations in Malaysia tend to be avoided. This is due to their sensitive nature, possibly becoming political ammunition, and individuals being accused of seditious intent. Much that is necessary to discuss discrimination in Malaysia remains unclear. It is not known to what extent contact between groups is undesirable especially as neighbors in Malaysia. This study examined ethnic differences and predictors of racial and religious discriminations among 1200 Malaysians (319 Chinese and 881 Malays). Discrimination (...) was conceptualized through having the attitude of not wanting people of a different race or a different religion as neighbors. Ethnic differences in discriminating against others were found to be significant. Malays showed higher means of not wanting neighbors of a different race or religion compared to Chinese. Demographic factors and beliefs reflecting conservatism were not good predictors, explaining only slight variances. However, a person who discriminates based on religion was consistently a predictor of exhibiting racial discrimination, and vice-versa, with approximately double the odds among Malays. The finding highlights a strong interplay between race and religion, suggesting that Chinese and Malays conflate the two together. (shrink)

It is often thought that traditional recidivism prediction tools used in criminal sentencing, though biased in many ways, can straightforwardly avoid one particularly pernicious type of bias: direct racial discrimination. They can avoid this by excluding race from the list of variables employed to predict recidivism. A similar approach could be taken to the design of newer, machine learning-based (ML) tools for predicting recidivism: information about race could be withheld from the ML tool during its training phase, ensuring that (...) the resulting predictive model does not use race as an explicit predictor. However, if race is correlated with measured recidivism in the training data, the ML tool may ‘learn’ a perfect proxy for race. If such a proxy is found, the exclusion of race would do nothing to weaken the correlation between risk (mis)classifications and race. Is this a problem? We argue that, on some explanations of the wrongness of discrimination, it is. On these explanations, the use of an ML tool that perfectly proxies race would (likely) be more wrong than the use of a traditional tool that imperfectly proxies race. Indeed, on some views, use of a perfect proxy for race is plausibly as wrong as explicit racial profiling. We end by drawing out four implications of our arguments. (shrink)

Filling a gap in knowledge in gender theory, genocidal, and Holocaust studies, this paper operationalizes the concept of phallicism as an analytic explanation of the simultaneous killing and sexual victimization of racialized men in western, capitalist, patriarchal societies. The theory of phallicism posits that racialization lays the basis for a sexualization process wherein racialized males are caricaturized as both salacious savages (who can be raped by the men or women of the dominant racial group) and bestial/wanton creatures deserving of (...) immediate death for the sake of liberal civility. Breaking with the dominant interpretive lenses in scholarly discourses around race and gender that understand racialized femininity as the basis of dehumanization, this paper will operationalize the notion of phallicism through historical and comparative analysis of the writings of political prisoner George Jackson and Primo Levi, a survivor of the Jewish Holocaust. With the theory of phallicism—the guiding theoretic of the paradigm of Black Male Studies—we can sharpen our conceptual acumen to account for the function of misandric patterns of intergroup violence and its role as the organizing principle of the negrophobia characteristic of Western, patriarchal, capitalist regimes. (shrink)

In his [Africans are not Black: The Case for Conceptual Liberation], Kwesi Tsri relies extensively on myths and non-fictional narratives to dictate the origin of the racial disparagement of Afro-Americans and Africans from south of the Sahara. Owing to the synonymy between ‘black’ and ‘Africa’ as well as the derogatory symbolism in the former that fuels the latter, Tsri submits the need to disassociate Africans from the concept, ‘black.’ Upon a critical conversation with Tsri’s text however, Chimakonam discerns three (...) flaws. Granted, the objections are salient, I augment herein, one of Chimakonam’s critiques – the exclusion by Tsri, of nonfictional or scientific texts on the race discourse. Whereas I agree with Chimakonam that both the fictional and non-fictional accounts on race are pertinent for intellectual balance in Tsri’s disquisition, I further suggest that in most cases, non-fictional or scientific theories on race are undergirded by the prejudice initiated by mythical and/or fictional narratives. I substantiate my thesis, relying on Karl Popper’s evolutionary epistemology, with 21 st century science admission that human genetic diversity cannot be captured by scientific theories of race. Keywords: Africa, Blackness, Jonathan Chimakonam, Karl Popper, Kwesi Tsri. (shrink)

Social psychologists often describe “implicit” racial biases as entirely unconscious, and as mere associations between groups and traits, which lack intentional content, e.g., we associate “black” and “athletic” in much the same way we associate “salt” and “pepper.” However, recent empirical evidence consistently suggests that individuals are aware of their implicit biases, albeit in partial, inarticulate, or even distorted ways. Moreover, evidence suggests that implicit biases are not “dumb” semantic associations, but instead reflect our skillful, norm-sensitive, and embodied engagement (...) with social reality. This essay draws on phenomenological and hermeneutic methods and concepts to better understand what social-psychological research has begun to reveal about the conscious access individuals have to their own racial attitudes, as well as the intentional contents of the attitudes themselves. -/- First, I argue that implicit racial biases form part of the “background” of social experience. That is, while they exert a pervasive influence on our perceptions, judgments, and actions, they are frequently felt but not noticed, or noticed but misinterpreted. Second, I argue that our unreflective racial attitudes are neither mere associations nor fully articulated, propositionally structured beliefs or emotions. Their intentional contents are fundamentally indeterminate. For example, when a white person experiences a “gut feeling” of discomfort during an interaction with a black person, there is a question about the meaning or nature of that discomfort. Is it a fear of black people? Is it anxiety about appearing racist? There is, I argue, no general, determinate answer to such questions. The contents of our unreflective racial attitudes are fundamentally vague and open-ended, although I explain how they nevertheless take on particular shapes and implications—that is, their content can become determinate—depending on context, social meaning, and structural power relations. (If, for example, a perceived authority figure, such as a politician, parent, or scientist, encourages you to believe that your uncomfortable gut feeling is a justified fear of other social groups, then that is what your gut feeling is likely to become.). (shrink)

In this paper I attempt to unpack the current public debate on racial transformation in South African sport, particularly with regard to the demographic make-up of its national cricket and rugby sides. I ask whether the alleged moral imperative to undertake such transformation is, in fact, a moral imperative at all. I discuss five possible such imperatives: the need to compensate non-white South Africans for the injustices in sport’s racist history, the imperative to return the make-up of our national (...) sides to what they would have been in the absence of that history, the requirement that national sides be representative of the country, the need to eliminate ongoing racial bias in selection, and the obligation to provide all South Africans, regardless of their race, the opportunity to compete as equals for places in the national side. I argue that the first three, drawn from talk of “rectifying the injustices of the past,” “achieving demographic proportionality between the sides and the country,” “representivity,” and “transformation” itself, are not compelling. The remaining two are of great moral import, but that the sorts of phrases just mentioned, and which are frequently used in the debate, have little to do with those genuine moral requirements. (shrink)

How can researchers use race, as they do now, to conduct health-care studies when its very definition is in question? The belief that race is a social construct without “biological authenticity” though widely shared across disciplines in social science is not subscribed to by traditional science. Yet with an interdisciplinary approach, the two horns of the social construct/genetics dilemma of race are not mutually exclusive. We can use traditional science to provide a rigorous framework and use a social-science approach so (...) that “invisible” factors are used to adjust the design of studies on an as-needed basis. One approach is to first observe health-care outcomes and then categorize the outcomes, thus removing genetic differences as racial proxies from the design of the study. From the outcomes, we can then determine if there is a pattern of conceivable racial categories. If needed, we can apply dynamic notions of race to acknowledge bias without prejudice. We can use them constructively to improve outcomes and reduce racial disparities. Another approach is nearly identical but considers race not at all: While analyzing outcomes, we can determine if there are biological differences significant enough to identify classifications of humans. That is, we look for genetic patterns in the outcomes and classify only those patterns. There is no attempt to link those patterns to race. (shrink)

I argue that traditional views on which beliefs are subject only to purely epistemic assessment can reject demographic profiling, even when based on seemingly robust evidence. This is because the moral failures involved in demographic profiling can be located in the decision not to suspend judgment, rather than supposing that beliefs themselves are a locus of moral evaluation. A key moral reason to suspend judgment when faced with adverse demographic evidence is to promote social equality—this explains why positive profiling is (...) dubious, along with more familiar cases of negative profiling, and why profiling is suspect even when no particular action is at stake. My suspension-based view, while compatible with revisionary normative positions, does not presuppose them. Philosophers of all stripes can reject demographic profiling both in thought and deed. (shrink)

In this paper I critique the ethical implications of automating CCTV surveillance. I consider three modes of CCTV with respect to automation: manual, fully automated, and partially automated. In each of these I examine concerns posed by processing capacity, prejudice towards and profiling of surveilled subjects, and false positives and false negatives. While it might seem as if fully automated surveillance is an improvement over the manual alternative in these areas, I demonstrate that this is not necessarily the case. In (...) preference to the extremes I argue in favour of partial automation in which the system integrates a human CCTV operator with some level of automation. To assess the degree to which such a system should be automated I draw on the further issues of privacy and distance. Here I argue that the privacy of the surveilled subject can benefit from automation, while the distance between the surveilled subject and the CCTV operator introduced by automation can have both positive and negative effects. I conclude that in at least the majority of cases more automation is preferable to less within a partially automated system where this does not impinge on efficacy. (shrink)

In Plato’s Statesman, the Eleatic Stranger applies a specialized method of inquiry—the “method of collection and division”, or “method of division”—in order to discover the nature of statecraft. This paper articulates some consequences of the fact that the method is both a tool for identifying natural kinds—that is, a tool for carving the world by its joints (Phaedrus 265b-d)—and social kinds—that is, the kinds depending on human beings for their existence and explanation. A central goal of the paper is to (...) illuminate the extent to which this use of the method of division allows us to identify Plato as an early historical forerunner of racialism, which is an ideology according to which humanity divides into races differentiated by heritable physiological, cultural, and intellectual traits, as a way of vindicating oppressive and exploitative social, political, and economic systems. -/- I defend an interpretation of the Stranger’s claim, much discussed in the literature, that the division of humankind into Greek and barbarian is unnatural (Politicus 262c-263a). I argue that, in the Stranger’s view, this division reflects subjective illusion and prejudice, rather than the fundamental, and teleological, structure of human social organization, which concerns how human beings rationally cooperate to self-produce as a species. Nonetheless, the Stranger’s alternative theory of the natural structure of human society, I suggest, is proto-racial in another way. Through a brief consideration of the Stranger’s affirmative and complex division of kinds in the city, I argue that he re-introduces naturalistic foundations for unjust human hierarchies through his alternative theory of natural kinds and human social teleology. (shrink)

Ambient assisted living technologies are increasingly presented and sold as essential smart additions to daily life and home environments that will radically transform the healthcare and wellness markets of the future. An ethical approach and a thorough understanding of all ethics in surveillance/monitoring architectures are therefore pressing. AAL poses many ethical challenges raising questions that will affect immediate acceptance and long-term usage. Furthermore, ethical issues emerge from social inequalities and their potential exacerbation by AAL, accentuating the existing access gap between (...) high-income countries and low and middle-income countries. Legal aspects mainly refer to the adherence to existing legal frameworks and cover issues related to product safety, data protection, cybersecurity, intellectual property, and access to data by public, private, and government bodies. Successful privacy-friendly AAL applications are needed, as the pressure to bring Internet of Things devices and ones equipped with artificial intelligence quickly to market cannot overlook the fact that the environments in which AAL will operate are mostly private. The social issues focus on the impact of AAL technologies before and after their adoption. Future AAL technologies need to consider all aspects of equality such as gender, race, age and social disadvantages and avoid increasing loneliness and isolation among, e.g. older and frail people. Finally, the current power asymmetries between the target and general populations should not be underestimated nor should the discrepant needs and motivations of the target group and those developing and deploying AAL systems. Whilst AAL technologies provide promising solutions for the health and social care challenges, they are not exempt from ethical, legal and social issues. A set of ELSI guidelines is needed to integrate these factors at the research and development stage. (shrink)

The author has extensive law enforcement experience and the paper is intended to provoke thought on the use of technology as it pertains to information sharing between the police and the private sector. -/- As the world edges closer and closer to the convergence of man and machine, the human capacity to retrieve information is increasing by leaps and bounds. We are on the verge of knowing everything and anything there is to know, and literally in the blink of an (...) eye! -/- This means that police will have the capacity to learn everything about everyone with the only restriction being privacy legislation. But it also means that those involved in immoral, unlawful or illegal activity will have that same capacity and with no such restriction. ‘Bad Brother’ may be far more dangerous than ‘Big Brother!' -/- The global community requires a secure and credible system to retrieve and assess all of the information ‘generally available to the public.' A system that will strive to keep ‘Big Brother’ in check and ‘Bad Brother’ out, all the while providing a means of alerting citizens to genuine risks or to dangerous people. Such as system would help diffuse the systemic inaccurate and harmful profiling that is often based on rumours and innuendo. -/- There is an identified public-private partnership opportunity. A chance to work with privacy advocate groups and background checking private companies to define, design and deliver on something that will be of immense benefit to citizens around the globe. -/- We have an opportunity to create something that will work to ensure that only the best information gets used and in a moralistic, lawful and legal way! Technology continues to move forward at incomprehensible speeds – failure to act could have serious consequences. (shrink)

Historically, laws and policies to criminalize drug use or possession were rooted in explicit racism, and they continue to wreak havoc on certain racialized communities. We are a group of bioethicists, drug experts, legal scholars, criminal justice researchers, sociologists, psychologists, and other allied professionals who have come together in support of a policy proposal that is evidence-based and ethically recommended. We call for the immediate decriminalization of all so-called recreational drugs and, ultimately, for their timely and appropriate legal regulation. We (...) also call for criminal convictions for nonviolent offenses pertaining to the use or possession of small quantities of such drugs to be expunged, and for those currently serving time for these offenses to be released. In effect, we call for an end to the “war on drugs.”. (shrink)

This paper defends the concept of racialization against its critics. As the concept has become increasingly popular, questions about its meaning and value have been raised, and a backlash against its use has occurred. I argue that when “racialization” is properly understood, criticisms of the concept are unsuccessful. I defend a definition of racialization and identify its companion concept, “racialized group.” Racialization is often used as a synonym for “racial formation.” I argue that this is a mistake. Racial (...) formation theory is committed to racial ontology, but racialization is best understood as the process through which racialized – rather than racial – groups are formed. “Racialization” plays a unique role in the conceptual landscape, and it is a key concept for race eliminativists and anti-realists about race. (shrink)

In this paper I defend anti-realism about race and a new theory of racialization. I argue that there are no races, only racialized groups. Many social constructionists about race have adopted racial formation theory to explain how ‘races’ are formed. However, anti-realists about race cannot adopt racial formation theory, because it assumes the reality of race. I introduce interactive constructionism about racialized groups as a theory of racialization for anti-realists about race. Interactive constructionism moves the discussion away from (...) the dichotomous (social vs. biological) metaphysics that has marred this debate, and posits that racialized groups are the joint products of a broad range of non-racial factors, which interact. (shrink)