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

|The Volokh Conspiracy |

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.

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.

In rejecting these race and gender discounts, I noted that equal protection barriers might well preclude such differentials. But following the principle of avoiding unnecessarily reaching difficult constitutional questions, I found a narrower ground for rejecting the race and sex distinctions:

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.

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.