For the Symposium: Deconstructing Ferguson One Year Later
How do we know when policing is discriminatory? Statistical
evidence is one way to show discrimination, especially in legal challenges to
police practices when the smoking gun of invidious intent is hard to find.
Plaintiffs seek to demonstrate that observed racial or ethnic disparities in
policing outcomes (stops, misdemeanor arrest, police murders, etc.) are because
of race and not something else. But what does it mean to show discrimination
because of race?
Discrimination is, to borrow from Bernard
Williams, a “thick ethical concept” that simultaneously describes and
evaluates. Thick ethnical concepts are both “world-guided”—in the sense that
facts about the world and how it is organized determine the applicability of
the concept—and “action guiding”—in the sense that if one has properly applied
the term to a situation it
provides a moral reason to pursue a course of action (or desist from a
course of action).
These philosophical abstractions come crashing to the ground
with bloody urgency around the question of discrimination in policing. When we
set out to detect discrimination in a particular field of social activity, we
ought to be attentive to the fact that methodological debates about how to identify the phenomenon are not
only debates about what the phenomenon is
but also necessarily debates about what is right—about
the “good,” “fair,” or “proper” way of conducing business in that field.
We can explore these intertwined conceptual, legal and
political questions by looking at how police discrimination is alleged and
measured by in two arenas: social science studying police outcomes and legal
challenges to police tactics. I am particularly interested in how those two
arenas interact and mutually inform a particular concept of discrimination
through the use of quantitative methods to prove discrimination in police
cases. In both of these arenas—and especially when they interact in the form of
expert statistical evidence—we see the emergence of a particular concept of
discrimination that I call the counterfactual
causal notion of race discrimination. The counterfactual causal notion of
race discrimination conceptualizes race as a treatment that triggers an
outcome. Briefly, the causal effect of treatment t on unit u is defined by
comparing some measure of interests on u,
Y(u), between a world in which u
experienced the treatment (t=1) and the
world in which it did not, (t=0): Yt=1(u) – Yt=0(u).
For purpose of my discussion, assume the unit is a space (such as a police
precinct) and the treatment is a continuous variable (the percent of the
space’s population that are Black or Hispanic individuals). Discrimination, on
this account, is detected when all other facts about the spatial unit are
“controlled for” and there is still some persistent racial discrepancy in observed
police outcomes.
Why is this important? It is important because the way
courts consume quantitative evidence too easily glosses over what are
essentially conceptual and normative questions and make them appear to be
technical or methodological questions. What we are arguing about when we argue
about whether or not statistical evidence provides proof of discrimination is
precisely what we mean by the term
discrimination. Similarly, what we are arguing about when we argue about what
ought to be “controlled for” in a quantitative exercise to detect
discrimination is what are the fair and authorized bases for making decisions and
allocating resources.
I will illustrate these arguments with data from an ongoing
project with Cong Peng about policing of misdemeanor crimes in New York City. I
argue that interpreting the coefficient on race or ethnic composition from a
regression model of police practices as an isolated “treatment” effect often
entails abstracting from the very social forces that produce race as a salient
social category in the first place (There is a long debate about whether race
can be thought of as a “cause” in the counterfactual framework. See for
example, Zuberi,
Sen
& Wasow, Holland,
Zuberi
& Bonilla-Silva). It can make race appear to be an essential, obvious
trait that somehow mechanically produces outcomes by virtue of physical
attributes as opposed to through entrenched social systems of stratification
and signification.
Starting in the early 1990s misdemeanor arrests exploded as
part of a policing strategy, often referred to as Broken Windows or
quality-of-life policing. Figure 1, graphing the number of misdemeanor arrest
events by the race or ethnicity of the arrestee from 1990 to 2014, shows that
these policies have been highly concentrated on Black and Latino populations.
In 2014, 46% of misdemeanor arrests were of Black individuals, 34% of Hispanic,
14% (non-Hispanic) white and 6% of “other.”
Figure 1
Misdemeanor
arrests are highly spatially concentrated in precincts that are primarily Black
or Hispanic. Figure 2 shows the population adjusted density of misdemeanor
arrests by precinct. Of the top 20, only two precincts have more than 30% (non-Hispanic)
white population.[1]
Figure 2
The most
common response to this is that police resources are allocated in precincts
that have higher serious felony crime. Such was the defense of the City of New
York and the NYPD in the Floyd case challenging the stop,
question and frisk program (SQF) on 4th and 14th
Amendment grounds. The City argued that if they could show there was no “effect
of race” on the level of stops in certain spaces (precincts or census blocks) after
controlling for a number of other variables—meaning no little stars after the %
Black or Hispanic variable indicating statistical significance at conventional
levels—then this was evidence that the SQF program was not discriminatory. And
what were those other variables that needed to be controlled for in order to
get at the true effect of race? To drastically simplify a complicated debate, those
other variables included the social and economic conditions of the space,
patrol strength, and some measure of criminal activity. It was taken for
granted by both parties that a true measure of the “effect of race” was had
only after controlling for such things.
My point is not to criticize quantitative methodology or
legal strategy in this or any other case. My point is a conceptual one: In
presenting quantitative evidence to courts, it is a mistake to talk as if we have
gotten at the true effect of race by modeling it as a counterfactual treatment.
In fact, I contend that to do so cements an already predominate and problematic
understanding about race in public and legal discourse: one that is
distressingly dehistoricized and desocialized.
Consider that in New York City, as in so many US cities,
Black and Hispanic population in a precinct and measures of socioeconomic
disadvantage have been highly
correlated over extended periods of time. Figures 3 through 5 show the
persistence of select measures over four decennial censuses, 1980 to 2010. Or
consider the fact that the mean violent felony complaint rate in a high Black
or Hispanic population precincts (75% or more) is 2.6 times that that in high
white population precincts. In fact, there is not a single high white population
precinct (75% or more white) that has a violent felony complaint rate at the
mean value of high Black or Hispanic precincts.
Figure 3
Figure 4
Figure 5
And that is precisely the problem that discrimination
doctrine should be seeking to remedy. As others have pointed out more
eloquently than I, the story of state action in minority neighborhoods is one
of dual state failure: failure to secure the conditions of safety and
flourishing and then the use of intensive and aggressive police tactics to
address the predictable social disorder and violence that occurs as a result
(See for example, Coates,
Miller,
Fagan
& Mears). The story about why there are high concentrations of poverty,
unemployment and violence in predominantly Black and Hispanic urban
neighborhoods is the story about the making and remaking of race in America,
one that the state has been deeply implicated in from the start.
Imagine that we can make the little stars of statistical
significance on the variable measuring minority composition in a model of
misdemeanor arrests go away by including other variables about precincts such
level of schooling, unemployment, poverty, health, violence, etc. What exactly
have we isolated? The number of people in a given space with designated
physical attributes? Questioning this is what it means to be a constructivist
about race and ethnic categories because these are not obvious natural human
divisions but social understandings that come to have meaning and import from
the historic ordering of social and economic affairs. Said another way, if “%
Black” or “% Hispanic” were no longer highly correlated with measures of
socioeconomic disadvantage then the very
meaning of the categories would be different—they would not have the same
“effect” in the world as they currently do.
If a court finds that statistical evidence fails to prove
discrimination because the correlation between race and a policing outcome does
not survive controlling for the historical covariates of race, then we should
all be clear—including those learned jurists who hold the power to make such
findings—that such a claim does not
go to the “world-guided” aspect of the term discrimination (facts about how the
world operates) but rather about the “action-guiding” aspect of it (claims
about what we ought to do cognizable of those facts). It would be false to say
that a court denied a discrimination claim because quantitative evidence
isolated a true measure of whether or
not race caused the outcome by controlling a host of factors, factors that have
historically produced race as a salient social category in the first place. It would
be true, sadly, to say that a court held that in so far as race produces
outcomes through the mechanisms of high unemployment, poverty, or violence in
these spaces, well, the law does not call upon the state to act upon those facts.
Any doctrine that thus absolves the state of its twin failures
is a misguided one indeed.
Issa Kohler-Hausmann is Associate Professor of Law at Yale Law School. You can reach her by e-mail at issa.kohler-hausmann@yale.edu
[1] Those precincts are Midtown North and Midtown South,
both with very low residential population and high concentrations of
transportation, shopping and tourism centers.