California state task force will recommend paying blacks $223,200 per person in reparations — $559 billion statewide

California state task force will recommend paying blacks $223,200 per person in reparations — $559 billion statewide
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A task force set up by a California law “will recommend handing out $223,200 per person to all descendants of slaves in California for ‘housing discrimination’ at a cost” of $559 billion, reports the Daily Mail. That’s more than California’s entire annual budget. The committee was created by the state legislature in a law passed in 2020.

And this $559 billion is just the beginning: “The task force has also identified four other causes for reparations: Mass incarceration, unjust property seizures, devaluation of Black businesses and health care.”

The $559 billion is “to compensate the 2.5 million Black Californians” for housing discrimination “between 1933 and 1977.”

But that period ended over 40 years ago. It is unconstitutional to give people money based on their race for what happened a long time ago. Giving people money based on their race generally violates the Constitution’s equal protection clause, even when the recipients are a minority group. Courts have struck down affirmative action programs that were designed to remedy discrimination that occurred over 20 years before the affirmative-action plan, because that’s too long ago. For example, the D.C. Circuit Court of Appeals struck down an affirmative-action plan for black people where the discrimination occurred more than 17 years before the plan, in Hammon v. Barry (1987). The Sixth Circuit Court of Appeals struck down an affirmative-action plan for women where the discrimination occurred 14 years before the plan, in Brunet v. City of Columbus (1993).

The Supreme Court has said that race-based remedies are only allowed when they target the present effects of the government’s own widespread discrimination in the relatively recent past. The government cannot provide race-based “remedies that are ageless in their reach into the past,” according to Supreme Court’s decision in Richmond v. J.A. Croson Co. (1989). Moreover, race-based remedies can only be used to remedy the government’s own discrimination, not “societal discrimination,” like discrimination by private landlords or housing providers. The federal appeals court in California has made clear that the government can’t have racial preferences, unless that’s necessary to remedy recent widespread discrimination, not just individual instances of discrimination, in rulings such as Coral Construction Co. v. King County (1991).

Past housing discrimination does not explain present-day racial disparities in wealth or income. Asians once experienced far worse housing discrimination than blacks in California, yet they have much higher incomes and more assets. As the New York Post notes, “several historically marginalized groups out-perform whites today. Take Japanese Americans, for example: For nearly four decades in the 20th century (1913 – 1952), this group was legally prevented from owning land and property in over a dozen American states. Moreover, 120,000 Japanese Americans were interned during World War II,” which forced many interned Japanese people to sell their businesses at fire-sale prices, ruining them. “But by 1959, the income disparity between Japanese Americans and white Americans nearly vanished. Today, Japanese Americans outperform whites by large margins in income statistics, education outcomes, test scores, and incarceration rates.”
The task force mistakenly views “mass incarceration” as grounds for reparations. But incarceration occurs because someone committed a crime, not because of their race. The fact that blacks are arrested and incarcerated at a higher rate than whites is not a reason for reparations, either. In United States v. Armstrong (1996), the Supreme Court ruled that a higher black arrest rate didn’t show racism, since it might just reflect a higher black crime rate, and statistics show different groups have different crime rates. The black crime rate is much higher, according to the federal Bureau of Justice Statistics. It found that for homicides, “the offending rates for blacks were more than 7 times higher the rates for whites” between 1976 and 2005. (See BJS, Homicide Trends in the United States).

The higher black arrest rate is not due to racism. A 2021 study by the federal Bureau of Justice Statistics found that although blacks are arrested for serious nonfatal violent crimes at more than twice the rate of people in general, this is not due to racism. Instead, arrests are correctly “proportional” to the actual crime rate, and to the crimes actually reported to the police, which often are committed by black offenders. As it noted, in 2018, “white and black people were arrested proportionate to their involvement in serious nonfatal violent crime overall and proportionate to their involvement in serious nonfatal violent crime reported to police.” (See Allen J. Beck, Race and Ethnicity of Violent Crime Offenders and Arrestees, 2018).

Moreover, if racism pervaded the criminal justice system, that would make blacks distrust the police, which would reduce reporting of crimes against blacks, which are overwhelmingly black-on-black. Most crimes against black people are black-on-black, according to the federal Bureau of Justice Statistics. So lower rates of reporting due to racism would cut black incarceration rates, not fuel “mass incarceration” — as black conservatives have pointed out.

Testimony to the task force claimed that the “persistence of extremely punitive sentencing laws and policies, not increases in crime rates, sustain the nation’s high rate of incarceration.” That is quite wrong. As criminology professor Justin Nix notes, “Given its level of serious crime, America has ordinary levels of incarceration but extraordinary levels of under-policing.” America incarcerates fewer people per homicide than countries like Australia, Japan, Switzerland, and Austria. While sentences are often longer in the U.S., this is offset by the fact that more offenders elude detection in the U.S. than in Europe, due to less cooperation with the police in places like inner cities, where many witnesses to crimes don’t tell the police what they know. There are many U.S. neighborhoods where a “no-snitching” mentality is common.  

Moreover, sentences in the U.S. are usually not “extremely punitive.” As a Wall Street Journal article noted,

in only 3% of violent victimizations and property crimes does the offender end up in prison. Far from being prison-happy, the criminal-justice system tries to divert as many people as possible from long-term confinement….In 2009, 27% of convicted felons in the 75 largest counties received a community sentence of probation or treatment, and 37% were sentenced not to prison but to jail, where sentences top out at one year but are usually completed in a few weeks or months. Only 36% of convicted felons in 2009 got a prison term.

While California did increase penalties for crime in the 1980s and early 1990s, it did so to deter crime — which disproportionately harms black people — not to harm black people. Crime in California fell significantly after California voters adopted Proposition 8, which mandated longer sentences for repeat offenders who kill, rape, and rob others. A study found those longer sentences deterred many crimes from being committed. Similarly, a 2008 Santa Clara University study found that longer sentences for three-time offenders led to “significantly faster rates of decline in robbery, burglary, larceny, and motor vehicle theft.”

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.” Contact him at hfb138@yahoo.com

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