Should race-based income projections be banned from the courts?

The Washington Post

On Tuesday, The Post ran this interesting article about race-based income projections in tort cases. The article highlighted a recent federal case in which a Brooklyn jury had to determine how much to award a 4-year-old mentally disabled boy who had been harmed from living in an apartment illegally coated with lead paint. The landlord’s defense attorney disputed the lifetime income projections provided by the boy’s attorney because the boy was Hispanic and, accordingly, the attorney argued, statistically less likely to obtain an advanced education that would result in such large earnings. The landlord’s attorney explained that”the [proportion] of Hispanics attaining master’s degrees was in the neighborhood of [only] 7.37 percent.”

Judge Jack Weinstein refused to allow this argument, however statistically sound it might appear to be. In a published opinion, he wrote that “[r]ace and ethnicity are not, and should not, be a determinant of individual achievement. To support such a proposition distorts the American dream, denigrating minorities’ chances of climbing the socio-economic ladder. Using these statistics to calculate future economic loss reinforces the rigid racial and ethnic barriers that our society strives to abolish.” Judge Weinstein concluded that relying on the child’s ethnicity to reduce damages would violate due process and equal protection principles.

I agree with Judge Weinstein’s underlying point and thought it would be worth highlighting a similar opinion that I wrote a few years ago in two criminal cases involving restitution for two Native American victims. My opinion suggests that Judge Weinstein’s concern about disparate treatment may have broader application beyond tort cases.

Because income projections necessarily involve some degree of estimation — in both tort cases and criminal cases — judges have some discretion in determining what factors the jury will be allowed to consider. Even apart from constitutional requirements, judges have discretion to exclude evidence that is unduly prejudicial or a distraction from central issues. We aspire to have a race-blind and gender-blind justice system. Allowing economists to explicitly discount based on such factors unnecessarily introduces impermissible characteristics into tort calculations and sentencing decisions. The practice should be forbidden.

By Paul G. Cassell who teaches criminal law, criminal procedure, and crime victims' rights at the S.J. Quinney College of Law at the University of Utah. He also served as a U.S. District Court Judge for the District of Utah from 2002 to 2007.

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