Race Norming and the Veil of Ignorance: What Else Could Loury Have Meant?

If someone reads Loury’s book and thinks that there is doubt about his answer to the “veil of ignorance” question, so be it. But Loury lists out a range of implications from what he thinks are the obvious answers to the Rawls’ question. Loury notes (2008, p. 32-33):

I expect that we would still pick some set of punishment institutions to contain bad behavior and protect society. But wouldn’t we pick arrangements that respected the humanity of each individual and of those they are connected to through bonds of social psychic affiliations? If any one of us had a real chance of being one of those faces looking up from the bottom of the well — of being the least among us — then how would we talk publicly about those who break our laws? … . What weight would we give to various elements in the deterrence-retribution-incapacitation-rehabilitation calculus, if we thought that calculus could end up being applied to our own children or to us? How would we apportion blame and affix responsibility for the cultural and social pathologies evident in some quarters of our society if we ourselves might well have been born into the social margins where such pathology flourishes? [Emphasis added.]

Either the whole Rawls discussion is a meaningless sideline or not. If it means something and Loury has a conclusion, which he certainly seems to, here are Loury’s own implications for that conclusion. If blame should be apportioned based on “cultural and social pathologies,” doesn’t that mean that blacks have on average greater offsets than whites and less blame for the same crime? That whites have greater “responsibility” for the crimes that they commit? If so, doesn’t that imply that blacks should face less of a penalty? And the poorest blacks at the very least.

My previous post noted that “Loury’s book suggests that a Rawlsean approach implies … .” Indeed, I think that the word “suggests” is quite mild. Yet, if Loury means something else besides how blame and responsibility and thus punishment should be apportioned between the races, I would be interested in knowing what he means. Are there any actual implications that Loury gets out of the “veil of ignorance” discussion?

Finally, I would be most interested in Loury’s response to the policy solutions that I discussed.

Also from This Issue

Lead Essay

  • A Nation of Jailers by Glenn Loury

    In this month’s lead essay, Brown University’s Glenn Loury, author of Race, Incarceration, and American Values, points out that the United States imprisons more of its population than any country on the planet. America’s incaceration policies, Loury observes, fall disproportionately on black men. Loury is disturbed that we seem rarely to consider whether these policies make sense. He argues that they do not make sense, but that “the racially disparate incidence of punishment in the United States is a morally troubling residual effect of the nation’s history of enslavement, disenfranchisement, segregation, and discrimination.” Loury contends that the American ethos of individual responsibility has largely blinded us to the fact that “society at large is implicated in [the criminal’s] choices because we have acquiesced in structural arrangements which work to our benefit and his detriment.” Loury concludes: “What the brutal facts about punishment in today’s America show is that [the] American project of civic inclusion remains incomplete.”

Response Essays

  • Reforms that Ignore the Black Victims of Crime by John R. Lott Jr

    In his reply to this month’s lead essay, the University of Maryland’s John R. Lott, Jr. criticizes Loury for a selective presentation of facts about race and the American criminal justice system. Lott points out that blacks are the primary victims of crimes committed by other blacks. “If we punish black criminals a lot, isn’t it possible that the reason we are doing it is because we care about the black victims?” he asks. Lott argues that while the United States does have the world’s highest rates of incarceration, the evidence shows that the policies behind this fact have been effective in deterring crime. Additionally, Lott maintains that there is little evidence that other criminal penalties disproportionately burden blacks or the poor, and that well-intended policies meant to bring more blacks into law enforcement have actually increased crime rates in minority areas by lowering the average quality of new police recruits of all backgrounds.

  • Addressing the Problems that Lead to Prison by James Q. Wilson

    James Q. Wilson sympathizes with Glenn Loury’s “impassioned cry from the heart,” yet ultimately finds that it comes up short in substance. A more programmatic approach is in order, he argues. Although imprisonment has costs, it also has benefits, including decreased risk from several types of crimes. Yet programs that attempt to reduce criminality and recidivism must start outside the penal system and address broken families, neighborhoods, and educational systems.

  • Race, Crime, and Punishment by Bruce Western

    Harvard sociologist Bruce Western, author of Punishment and Inequality in America argues that although the growth of mass imprisonment in recent years has caused a modest reduction in crime, this reduction may not have been worth the costs. Not only did we spend billions on new prisons, we interrupted millions of lives and families. We lost the economic output of prisoners and alienated them from society at large. We further ran the risk of recidivism, because past imprisonment is strongly associated with future crime. Western characterizes the public safety provided by mass imprisonment as “short-term, expensive, and vulnerable to reversal.” Worse, there are other ways to reduce crime that do not rely on imprisonment. Today’s state legislators and governors are no longer as invested in the prison system and do not see more prisons as the solution to social ills, and this, to him, is a welcome development.

The Conversation