Affirmative Action In Execution

Trigger Warning: Facts ahead that will traumatize people who can’t stand facts that don’t comport with their emotional beliefs.

The numbers don’t lie.

The black-white gap is 15 points when measured on the Wechsler tests, 18 on the Stanford-Binet. Both tests are, of course, normed so as to produce an average of 100, but the white average is a bit higher. On the Wechsler metric, whites and blacks average 102 and 87, respectively. On both tests, the gap between the races is almost exactly 1 SD (standard deviation). The gap of 1 SD has been observed since the earliest days of intelligence testing.

IQ Distribution

This gap is uncontestable. The value of its message, and the causes for the gap, are an entirely different matter, and one that has been the subject of huge debate since Charles Murray wrote The Bell Curve.  It will not be debated here.

Then why raise it?  Because, my dear SJWs, your response to these numbers is coming around to bite you in ass.  Cornell prawf Sherry Colb makes the argument.

An excellent article by Robert Sanger calls attention to a particular sort of challenge to IQ scores that has developed in the Atkins context. This challenge or critique provides that African Americans, Latinos, and Latinas are disserved by IQ tests, as life experiences of deprivation, for instance, produce artificially low scores on such tests, relative to the test-takers’ true ability. In some contexts, this critique could help minorities applying for jobs and educational opportunities. Here, however, the proposal is to give minority defendants a “bump up” on their IQ scores so that they qualify to be executed.

The same explanations used to reject the notion that minorities are innately less intelligent have found a new use.  In Atkins v. Virginia, the Supremes held that it was unconstitutional to execute a person with an IQ of 70 or below. Mental retardation provided a cutoff for killing.  They then watered this bright line down in Hall v. Florida, by using the foreign language of “standard deviation” to fuzzy up a concept they introduced into the test.

Florida’s rule disregards established medical practice in two interrelated ways. It takes an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence.  It also relies on a purportedly scientific measurement of the defendant’s abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise….

And so a constitutional line in the sand becomes subject to the vicissitudes of soft science, where hemming and hawing to avoid being unduly judgmental ends up exposing the intelligence gap to gamesmanship.

So if IQ scores for minorities are subject to a “bump up” for some purposes, reflecting the rejection of the notion that minorities are inherently less intelligent than those descended from white Europeans, why not for all purposes, including execution?

The first thing wrong with racially adjusting minority IQ scores upward for execution purposes is that it constitutes blatant and invidious race discrimination against minority individuals. It basically says that a person with an IQ test score of X will live if he is white but (potentially) die if he is black. And this result is not simply a matter of observed disparate impact but of intentional practice in the courtroom.

This argument is an appeal to bias. If, presumptively, one is against execution, then the use of mechanics to increase the pool of defendants who are competent to be put to death based upon race is, indeed, “blatant and invidious race discrimination.” For those who take the view that it’s the proper punishment for the crime, then defendants are just getting what they deserve, and it’s the exact opposite, that minority murderers are no more entitled to live than whites.

But even if there is some validity to discounting or elevating IQ test scores based on race, one needs to ask when such a move is constitutionally—not just scientifically—valid. And Sanger addresses this issue thoroughly as well, explaining that race-based adjustments are subject to—and handily fail—strict scrutiny, under the Equal Protection Clause of the Fourteenth Amendment.

Colb’s point is that the “bump” can only be constitutionally justified as a salutary measure:

Generally, affirmative action at its best is aimed at either rectifying specific racial injustices or at fostering a needed diversity in such venues as educational environments.

The bump applies only when it solves a constitutional deficit, and is not available constitutionally when its use would be to kill people. Certainly, there’s no shortage of minorities on death row such that a disparate impact must be prevented or greater diversity is needed.

It is indeed bizarre to suggest that we might “enrich” the environment of death row by adding racial diversity, and I cannot imagine anyone even articulating this argument with a straight face.

I can. Hi, Bill Otis. But the fact that there will always be death penalty proponents who raise bizarre arguments, even if Colb can’t imagine them, isn’t important. What is important is whether the Supreme Court will find this persuasive. The issue isn’t whether providing a race-based rationale for favoring minorities, to the detriment of others, can be justified. Atkins and Hall plucked IQ as the measure of mental retardation for the purpose of Eighth Amendment analysis out of their butts.

This leads to the question of whether the use of a fuzzy IQ cutoff is a valid metric for a purpose for which it wasn’t exactly intended. If the metric isn’t valid for one purpose, it isn’t valid for the other. And if it isn’t valid, and there is no equal protection detriment to whites that needs to be explained away, then the Supremes may very well hold that if the bump is good enough to impose a burden on whites in the educational context, it can’t be ignored as the basis for executing blacks who might otherwise be found to be mentally retarded, but aren’t.

Yet again, the unintended consequence of an argument that seems brilliant in one context is used in ways that do remarkable harm.  Be careful what you ask for kids, because the world isn’t limited to your happy place, and everybody doesn’t see it through your eyes.

10 thoughts on “Affirmative Action In Execution

  1. Nick Boorer

    The “bump up” for education seems to me to be about the prospects for future attainment – necessarily contingent and amenable to change and improvement. It represents an opportunity to overcome background and the cognitive deficits caused by deprivation and discrimination.

    Conversely, execution refers to a fixed event in the past. To the extent that IQ can indeed be reasonably ascertained, the convict’s IQ at the time of the crime is a fixed data point. The bump up is irrelevant as there is no way it can be used retrospectively to improve the convict’s cognition at the time of the crime and thereby provide him with the requisite capacity for an event in the past.

    The two situations are entirely independent and an argument that the use of the bump up in one domain supports its use in the other is unsustainable.

    1. SHG Post author

      Sorry, but I fail to see what your temporal argument has to do with anything. Maybe you have a point, but if so, I can’t see it.

  2. Marc Randazza

    “African Americans, Latinos, and Latinas are disserved by IQ tests, as life experiences of deprivation, for instance, produce artificially low scores on such tests”

    I can understand this from the perspective of African Americans. I’m open to the idea that 400+ years of getting fucked over can have a cumulative negative effect, that we might even need some degree of affirmative action to repair.

    But, I’ve never understood the argument for Latinos. They’re as descended from European conquerors as Lord Jeffrey Amherst’s descendants. They’re from all echelons of society. They’ve suffered no greater discrimination than any other non Anglo group.

  3. Marc Randazza

    I did. reading comprehension fail. Dammit, I keep stumbling into rooms without seeing the “Safe space” sign. I feel like Donny from The Big Lebowski.

  4. LTMG

    Sherry Colb refers to Robert Sanger writing “…the [minority] test-takers’ true ability.” How do either Colb or Sanger know that the test-takers’ true ability is different from any mental capacity suggested by an IQ test? What other statistically rigorous means would Colb or Sanger suggest for measuring that “true ability”, if it even exists? In the absence of any such means, Colb and Sanger would, I infer, like to use magical social engineering to suggest there should be a means, but in it’s absence, they throw out IQ scores because the data do not support the required social narrative.

    1. SHG Post author

      And this is one of the reasons why I included “It will not be debated here” sentence. Colb has substituted her social views for science to explain the disparity, but as much as she can’t provide any answer to the conundrum, neither can we. So let’s ignore the why and focus instead on what it means for the death penalty.

  5. mb

    The assumption that different groups of people always perform equally, and that therefore they should earn equal amounts of success, and that therefore any inequality is the result of unfair practices, was never intended to apply in the context of responsibility. Because it was always a lie. “Equality” doesn’t mean equality of opportunity or of outcome. It means disparate outcomes, possibly just as unequal as the ones I’m complaining about, except I want to be the one who gets to pick.

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