The Inveiglement of Race into the Kyle Rittenhouse Case & Verdict

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Many will know that some news sources have gone as far as falsely claiming that the three assailants Kyle Rittenhouse shot were Black. Such lies or errors are easily dismissed as bad or bad faith reporting. But recently Quillette published an essay entitled The Rittenhouse Trial: A Legal Scholar Responds which quite accurately lays out the case that according to the Law relating to self-defense Kyle Rittenhouse was Not Guilty. This is not the issue, but rather that the article also went on to claim a belief popular in many segments of American society ‘that this is yet another example of white people manifesting their privileged status in America—so privileged that they can kill with impunity. They punctuate this argument with claim that if Rittenhouse were black, he would have been convicted.’ I thought given the frequency with which this claim is now made, it bears further examination.

I would contend that this statement is both true and false- true on the surface at the level of the veneer of looking at raw numbers, but for the most part false when one digs down into the causes of disparities within the criminal justice system. In beginning to examine the evidence we need only look to a 2012 study on the percentage chances of someone being placed on death row when not guilty- for either procedural reasons or because they truly were innocent of the crime committed.

The headline figure is 4.1%- an alarming percentage at face value, but when looking at the African American demographic some have argued that this figure is closer to 10%. But what accounts for the discrepancy? Well, if we look at the demographics of relative poverty in America, part of the answer becomes clear. The poor don’t get adequate counsel in America- it shows with the fact that they are far more likely to be convicted of a crime than their more affluent counterparts accused of the exact same offense. 22% of African Americans are below the relative poverty line, compared to 9% of whites, and in terms of history recent enough to be included in the study, this figure was worse.

But accounting for poverty and inadequate counsel doesn’t explain all of the disparity. Some of this figure relates to historical racism- because the study drew from data over several decades. Nonetheless, we cannot be sure that even though most of Americas troubled past with racism has been removed from the system, that this process is anywhere near complete. If such prejudice still exists we can be sure that its influence is nebulous and difficult to pin down, because of our society-wide conscious efforts to remove racism from courtrooms- at least when its influence is overt and obvious.

So we look for more data. Perhaps the most convincing source comes from COMPAS, a case management and decision support tool which is used by courts to assess risks of future offending and potential for recidivism. It uses data-driven algorithms to help judges make fairer decisions. But here’s the rub. First, it found that the algorithm driven system was better at predicting risks than Judges- humans trained to remain impartial- especially in matters of race. Second, although the system went a long way towards removing incorrect risk assessments influenced by race, the data-driven system found that African Americans were statistically more likely to reoffend.

We could blame structural racism for this higher rate of recidivism and no doubt it would be a factor. But for better data on the disparity we need to look to Norway’s reform-based prison system. A while back I was investigating the claim of their 20% recidivism rate. Was it true? Well, it depends upon both how one measures the recidivism (re-arrest, charging or conviction) and how far one looks for patterns of recidivism (2, 3, 4 or 9 years). Across this broader range of variables recidivism rates in Norway can be shown to be between 13% and 53%- with a fairer assessment looking over a longer range, but still maintaining that recidivism should at least be measured by actually being charged with a crime, recidivism rates in Norway are closer to between 30% and 40%- which is still impressive when one compares Norway to places like the US or the UK.

But what does this have to do with a data-driven statistical bias towards African Americans? Well, the Norwegians themselves have admitted that their reform-based system doesn’t work as well with the gang involved as it does with other criminals or former criminals. They haven’t been forthcoming with data in this regard, but it is an all-important factor when we look at relative rates of gang membership by ethnicity in America. The algorithms are either coded for, or are picking up, different proportions of gang membership within the population by race.

In a grim way, the recidivism rates makes sense. Few can compete with Hasidic Jews in the jewel trade because they don’t need the expense of most (internal) security- in addition to any criminal sanctions they may face, they will lose their community forever, if caught stealing. With gang membership this dynamics is reversed, creating a powerful obstacle to reform-based systems. Any attempts at implementing a reform-based strategy in criminal justice should be mindful of this fact- and even draw upon the experience of former gang members as well as cult deprogramming experts to look at ways of breaking the cycle of gang involvement and recidivism.

More generally, we should challenge the natural assumption that bias on the part of judges is the result of racism or implicit bias- it may well be such in terms of effect, but is not racism in terms of cause. Put simply, humans are great at assessing the possibility of risk, but terrible at assessing the extent of said risk. When judges pick up more individual cases within a group where risks exist, then this means that those individuals within the group will disproportionately be affected by the overcompensation for an inflated evaluation of risk, and this will be found at the statistical level.

For proof of this very human tendency to exaggerate the likelihood of risk, we only need to look at the vast sums of money spent on tackling the threat of terrorism, when a more rational and empirically driven approach would have saved more lives by deploying the resources to other areas of the criminal justice system. This overcalculation of risk is sure to persist in an era where our moral panic has turned to an overinflated belief in the risks of White Supremacist terrorism. Regardless, this tendency to overestimate risk is probably better categorised as structural racism (or disparity) only- rather than a clear indicator of racism or implicit bias- in the same way that the brain software we develop to identify faces is specific to particular ethnicities, as those who have not grown up around a particular ethnicity lack the software to distinguish faces on the basis of criteria such as hairline, or nose thickness rather than just size and shape.

But I digress. How does this bear upon the claim that a Black man in an equivalent situation to Kyle Rittenhouse would have been found guilty? Well, much as it may dismay conservative readers, it does present something of an indictment to the American Criminal Justice System. Because although many judges now have access to software which helps them overcome the biased tendency to overestimate risk, so such facility is available to jurors. Let’s consider a young Black teenager from a poor high crime neighbourhood wrongfully accused of a crime.

He will wear the same types of clothing and hairstyle as gang members in his neighbourhood, because its a form of camouflage to avoid being bullied or beaten up by the gang. If he like most male teenagers he is also likely to be desperate to get laid. He will be all but indistinguishable from gang members in terms of speech, gait and mannerisms. People who live in the neighbourhood might possess the discerning eyes to differentiate the non-gang involved, but do we really expect a jury of 12 average Americans from a broad range of backgrounds to make the same distinctions?

Unfortunately, most Western countries are still struggling to overcome the ways in which matters of culture become inextricably linked to matters of race and lead to stereotypes which are unjustly applied. If our hypothetical young Black man has a decent lawyer, we can have a reasonable expectation that this obstacle will be overcome. He will be at pains to emphasis the lack of gang involvement (which opens up the possibility of rebuttal, if the claims are false). He might draw upon witnesses from the local community that despite appearances he is a nice young man, respectful to his elders.

He might even expound upon a great attendance record at school, occasional participation in church activities, or draw upon examples of the young man carrying groceries for the elderly. But all of this is contingent upon having a reasonable competent lawyer with time on his hands, and many public defenders have case loads which prohibits this bare minimum of due diligence. America may seem like a classless society, but when you are at the bottom of society and can’t afford an adequate lawyer, I imagine class feels very real. It should concern all Americans that poor people can be falsely convicted of crimes, if for no other reason than occasionally these false convictions can act as a shield to the real (and sometimes dangerous) culprits.

If we want to examine the claim of bias in America’s Criminal Justice System, let’s acknowledge that the problems of bias and class are a little more nuanced than we might expect and look at potential solutions. First, let’s hypothesis a system in which all African American defendants are entitled to trial by an exclusively Black jury. Second, let’s imagine a system where every defendant in entitled to a defence attorney with roughly equivalent experience and ability as the prosecutor.

Hard as it may be for those with activist inclinations to believe, the latter system would likely result in far more removal of systemic unfairness than the former. But we don’t need to speculate, because such a system already exists across the Pond, here in the UK. There is still some lingering complaint over the extent to which controversial policing measures are disproportionately applied against Black British citizens- but these complaints fall apart when we look at the disparities of crime by community the police are policing, and weigh the evidence that regardless of whether a Black or White is stopped by police, the chances of a search revealing illegal materials such as knives or drugs is exactly the same- with a roughly 30% hit rate for white people and a 30% hit rate for Black people. 16,000 knives were confiscated last year, although many would be better categorised as machetes or self-made short swords 1.

Equally, although there have been shown to be sentencing disparities by race, upon further examining almost all of the disparities evaporate. An overwhelming amount of the difference stems from the fact that minorities in the UK are less likely to trust their legal counsels and the Criminal Justice System in general and are thus less likely to avail themselves of the discounts available for pleading guilty. This is cause for concern and should be remedied by action to help establish trust in the system, but can hardly be held up as example of racism, structural or otherwise, when it within the defendants power to disabuse themselves of the provably incorrect notion that the system is rigged against them.

But the final evidence is proof of a manifestly more just system. We offer every convicted criminal not only the right to appeal, but also a highly expert team of investigators ranged from experienced former detectives, to forensics and legal experts. All they have to do is pass a lie detector test which either shows that they didn’t commit the crime or shows an inconclusive result. Contrary to the opinions of many, a lie detector administered by an acknowledged expert is 90% accurate and in cases where the read is inaccurate, it only shifts the results by one category- from either guilty or innocent to inconclusive. We are so confident of our ability to determine innocence or guilt in our courts, so convinced that miscarriages of justice are exceedingly rare exceptions, that we are willing to use taxpayer money to exonerate the innocent or wrongfully convicted.

On a separate note, the claim that an African American man would not have received a fair trial in circumstances similar to those of Kyle Rittenhouse falls apart on other grounds- the flimsiness and implausibility of the counterfactual presented. First, had Jacob Blake been white the scenario of the police shooting would have played out exactly as it did. If a white man broke into a woman’s house, sexually assaulted her, fought with police, and then made his way to the passenger footwell to retrieve a knife he would have been shot by police- no question. We know this because for every case of police brutality which has occurred the exact same circumstances and results have happened to white people. In the case of George Floyd, we even know the name of his white counterpart- that of Tony Timpa.

It might have made the local news, but it wouldn’t have caused protests, for the simple reason that mainstream media has been deliberately ignoring and de-emphasising instances of the use of force by police against whites to present people with a deeply flawed availability heuristic and a completely false narrative- the lie of racist cops targeting Black bodies in a systemic fashion. So there never would have been a daytime protest or nighttime riot.

Second, we don’t need the strawman of an armed Black man at a Proud Boys event. We have better evidence of armed BLM activists at 2A protests. We can even see a white guy holding up a handwritten sign, highlighting the case of Duncan Lemp, a white man shot in circumstances quite similar to Breonna Taylor. But in order to establish a far more accurate counterfactual roughly equivalent to the Kyle Rittenhouse case, we would have to posit a Black man protecting property from a largely white mob intent upon burning down Black businesses.

This counterfactual doesn’t even deviate that much from what we know of the events of summer 2020. If, like me, you have seen any of the footage of the night in question, you will have been struck by just how many of the nighttime ‘protestors’ were white. Contrast this with the verifiably peaceful protests which occurred during the day, and we can see a marked discrepancy. Peaceful protestors during the day who were mainly Black and ‘protestors’ at night who were mostly white.

The image is slightly more muddied than that- there have doubtless been many older more laudably liberal white protestors who have shown up during the day to support BLM, and there have been notable instances of African Americans intent upon looting- an activity endorsed as a form of reparation, an encouraged by many mainly white journalists- yet more white people intent on destroying poor Black commercial districts . But generally when we examine the roughly $2 billion in damages caused by arson, I would suggest that we have been lied to in two ways. First, the damage has been caused overwhelmingly in poorer African American neighbourhoods, to businesses which were in many instances Black-owned and, whilst insurance may cover some of the expenses and loss of business which is incurred in such circumstances, but there is no way to compensate for the uphill struggle, immense labour and emotional demands of having to recover from such a devastating loss.

Second, when riots happen and result in arson, and as they did in Kenosha, I would posit that the arsonists are far more likely to have been white than anybody realises. In these circumstances, if we imagine a Black man defending a Black property from white arsonists, I don’t think a jury would convict if he had to kill two white people and injure another in order to protect his own life, or the lives of others. In fact, I don’t think that he would have even been charged in such a case.

America needs to start looking at its racial problems in terms of class, not race. Because just as surely as being at the bottom of the socio-economic spectrum without a father makes one vulnerable to gang grooming, we can be sure that when real racism rears its ugly head it is because stereotypes have a way of being applied more broadly than is just. Similarly, given that we know that white critical social justice activists are far more likely to be university educated and come from wealthier families, do we really want to put them in the same category as far more laudable martyrs to a just cause, especially when their actions often fall far short of the standards of behaviour we expect?

To me the kids of wealthy white people burning down the life’s work of mainly hardworking Black people isn’t laudable, if we were to place it on a moral spectrum it would be on the other side of good. But this is part of the problem of ideological possession- at least some of the instigators of Arson in 2020 were Antifa with a communist ideology. To this deluded philosophy, any business operating at a profit is extracting wealth from the community. To them they deserve to be burned down. Far better to have a community non-profit arranging food- even if the local residents are less likely to be enthused by locally grown seasonal veg at an extortionately high price, rather than goods more to their liking.

Many might doubt the news source of Black pastor Corey Brooks writing an opinion piece on a Conservative website, but the fact that Black-owned businesses have suffered in South Chicago is indisputable. And the fact that all three of Kyle Rittenhouse’s assailants were white speaks for itself. One was a known arsonist…

Many of us are already familiar with many of the lies which have been propagated about the Kyle Rittenhouse case, and the subject of police brutality and BLM more generally- but we will never know all of the media’s lies, just as we will never know just how many of the Black businesses burned down in 2020 were set fire by the hands of wealthy white kids born with silver spoons in their mouths. We may be familiar with the rabbit hole, but we will never know the true extent of the warren of nefarious half-truth, lies and omissions the corporate media employs to keep America divided and support their Democrat friends in DC in Office.

On a final note, if you doubt some of my assertions have a look at the photograph at the top of this essay. Do most of the ‘protestors’ in the background look white?

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