Judge Jack Weinstein raised a very interesting, and difficult, problem when he rejected the valuation of future income in a tort case of a 4-year-old boy who suffered mental disability from the ingestion of lead paint.

Attorneys representing G.M.M. said $3.4 million was the right number, arguing that the boy would have had a bright career ahead of him; both of his parents had graduated from college and his mother received a master’s degree, according to the court documents. But the landlord’s defense put the figure at less than half that – $1.5 million. Attorney Roger Archibald noted that because the boy was Hispanic, G.M.M. was unlikely to attain the advanced education that would garner such a large income.

“The [proportion] of Hispanics attaining master’s degrees was in the neighborhood of 7.37 percent,” Archibald told the court.

See the problem? Projecting future earnings is based on a statistical analysis, and statistical analysis is based on past experience. But past experience is based upon societal discrimination. So, does the amount get reduced by the facts, or by the fact that the facts are the product of discrimination? And what of the possibility that the boy wouldn’t have a future that would either overcome past discrimination, or that society would sufficiently address discrimination such that the boy’s future wouldn’t be constrained by the past?

The problem requires a choice to be made between the best speculation (it’s all speculative, obviously) based upon known facts or speculation based upon aspirational “facts.” Should the influences of historic race, gender, whatever, discrimination be eliminated by requiring valuations to be homogenized, to not take into account demographic history? It would mean that G.M.M. gets more, but it would also mean that a child whose race and gender would benefit from the highest valuation gets less.

While this issue arose in a tort case, former judge turned victim shill, Paul Cassell, raises its applicability to criminal restitution as well (paragraph breaks added, because, well, he’s unreadable otherwise).

My cases involved the size of restitution awards for two Native American crime victims. In one case (United States v. Bedonie), the defendant had committed a federal drunk driving offense (a DUI on the Navajo Reservation, which extends into Utah), which had killed the victim — a Native American named Brian Johnson. In the other case (United States v. Serawop), the defendant had committed a federal crime of voluntary manslaughter on the Ute Reservation by killing a 3-month-old Native American baby, Beyonce Serawop, entrusted to his care. Following the convictions of the two defendants,

I appointed a skilled economist to calculate the lost income restitution that each victim should receive. In the course of calculating the projected lost income, the economist determined projected income for both victims. But in determining Johnson’s projected lifetime income, the economist discounted by a substantial amount, reasoning that Native American males earn, on average, just 58 percent of the wages of white males. And in determining Serawop’s projected lifetime income, the economist discounted not only because she was a Native American but also because she was a female. The economist noted that Native American females earn, on average, 77 percent of what white females earned — and that females earn less than males.

The variances based on race and gender are, for these purposes, significant. Simplistic, of course, but then, this is of necessity blind speculation into what the future would hold.  Cassell’s solution?

In framing restitution awards, the court certainly operates within a zone of discretion, because the process is not an ‘‘exact science.’’ As a matter of fairness, the court should exercise its discretion in favor of victims of violent crime and against the possible perpetuation of inappropriate stereotypes. This is particularly true in this case, where the defendants have deprived their victims of the chance to excel in life beyond predicted statistical averages.

In fairness to the victims, therefore, the court should … use race- and sex-neutral data in calculating losses. Moreover, defendants should shoulder the burden of proving that any reduction based on race or sex is appropriate. Here, the court concludes as a factual matter that the defendants have simply failed to prove that a stereotypical discount is satisfied. Their evidence is too speculative and insufficiently connected income losses of the particular victims in these cases.

The burden of disproving a fantasy valuation would, according to Cassell, fall on the defendant, because defendants “deprive their victims of the chance to excel in life.” He could have been Bill Gates, Mozart, Clarence Thomas, right? And how can you prove he wouldn’t?

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.

The facile use of empty rhetoric depends mostly on who’s doing the talking.  What about the constitutional rights of defendants to not be sentenced based on flights of fantasy, unsupported by facts, in furtherance of an aspiration?  Remember, those defendants are more likely to be black and Hispanic than white, not that Cassell gives a damn.

There are a wealth of questions raised, beginning with the propriety of using criminal prosecution as a means of securing restitution at all. But then, Cassell’s view would place an impossible burden on the defense to prove the negative, that a person wouldn’t “excel” beyond every known fact.

This is, of course, a policy argument rather than a legal one, that when we stick it to the defendants, we do so in a way that furthers social engineering rather than due process. But then, it is undeniable that historical fact incorporates aspects of society that reflect some of our worst nature.