Imagine a system where arrests, convictions and sentencing for the crime of murder had to be in proportion to the racial composition of the population.

Since Asians are about 7% of the population, the murder arrests, convictions and sentences for Asians in such a scheme would have to be 7% of the total.  Likewise, since Blacks, Latinos and whites make up about 13%, 19% and 62% of the population, respectively, they’d have to account for 13%, 19% and 62% of the murder arrests, convictions and sentencing.

At first glance, that sounds reasonable. But of course, it is not.

The reason is because those four races commit murder at dramatically different rates. FBI data show that whites comprise 62% of the population but commit only 46% of murders. Asians comprise 7% but commit only 1% of murders. Latinos comprise 19% and commit 20% of murders.

So, who is committing all the murders that whites, Asians and Latinos are not?

Blacks are. Blacks comprise 13% of the population, but commit 51% of murders in the country. If you do the math, the statistical likelihood of a Black person being a murderer is quadruple the likelihood of a white person being a murderer, and roughly 22 times the likelihood of an Asian being a murderer.

A few tangential points are worth your attention. One, this high Black murder rate accounts for a large part (but not all) of the high overall murder rate in America as compared to Europe.

Two, the victims of these Black murderers are also mostly Black themselves. Black-on-Black violent crime in America is, tragically, extremely high.

Three, a few people would contend that Blacks don’t really commit murder at a high rate (though they cannot dispute that they die of murder at a high rate since, after all, there’s a Black body to prove it).

Those people would say that these statistics to the contrary are instead proof that the justice system racially discriminates against Blacks in arresting them, convicting them and sentencing them for crimes they did not commit (but, interestingly, does not discriminate against Latinos or Asians). Nobody really believes that contention – even the people saying it – so I won’t address it.

And four, an interesting tidbit is that the number of men we arrest, convict and sentence for murder is several times the number of women, even though the two sexes are about 50/50 in the population. Does anyone seriously contend that men are victims of sex discrimination in the field of murder arrests?

Back to our hypothetical. A scheme where people must be arrested, convicted and sentenced for murder in proportion to their racial representation in the population, even though murders are not committed in that same proportion, is undeniably unjust and probably criminal.

We would have to arrest many more whites and a lot of Asians for murders they didn’t commit. And we would have to leave un-arrested a lot of Blacks for murders they did commit, all to achieve our fantasy of racially proportionate representation in the law of murder.

This superficially appealing but fundamentally unfair concept of racially proportionate representation in the law brings us to another area of law – the way we elect Congress.

The country is divided into Congressional Districts of equal population – about 762,000 people each. Each district gets one representative. That amounts to the 435 members of the House of Representatives.

Each district typically elects a House member of the party that controls the district. Only 10-15% of the districts are actually competitive. (That’s why members of Congress are seldom voted out of office.)

Because populations shift, the districts must be redrawn periodically. That’s done by state legislatures. In doing so, the legislatures often “gerrymander” the districts. That is, they draw weird-shaped districts in order to distribute the population such that each district has a slight majority of the party doing the drawing. In a state with a 55/45 split between the two parties, the party in power can easily achieve an 80-20 split in the House members elected from that state. There’s more about gerrymandering HERE.

Gerrymandering has been going on for a long time, overtly or covertly. It’s unseemly and might be unfair, but it’s part of our system of representative government. The Supreme Court allows it, because there’s nothing in the Constitution to prohibit it.

But when the gerrymandering is done for the purpose of racial discrimination, there are special rules that have evolved and changed. For a while back in the Jim Crow days, the Democrats who controlled the South racially gerrymandered the districts in a way to prevent the election of Black representatives.

That wasn’t difficult. Even in Louisiana which is about 30% Black, they simply drew the districts such that no district had anywhere close to a majority of Black voters. Divide and conquer was the strategy. The result for many years was that there were none or very few Black members of Congress.

That changed in the last half of the 20^th century with the passage of the Voting Rights Act and numerous legal challenges to districting. In fits and starts, judges gradually concluded that the VRA together with the Equal Protection Clause of the 14^th Amendment required that a state’s Congressional delegation be Black in proportion to the Black population of the state. In Louisiana, that meant that two of their six representatives should be Black since about 30% of the state population was Black.

That was achieved with gerrymandering. They drew two “majority minority” districts that concentrated the 30% Black population. The resulting districts had a weird shape, but there was some assurance that two Blacks would get elected in those two mostly-Black districts.

It was something like affirmative action. When the number of Blacks qualifying for prestige colleges and jobs was not “enough,” society put its thumb on the qualifications scale. Similarly, when the number of Blacks getting elected to Congress was not “enough,” society put its thumb on the election scale. For a while, Lady Justice peeked to check which race she was judging.  

There’s an expression in law that hard facts make bad law. Imagine a case where a child is run over and crippled after darting into a passing car. The law says the driver was not at fault but our emotions want to help that child, and so we bend the law to obtain a result that’s emotionally satisfying but legally bad.

In racial gerrymandering, the hard fact was that not many Blacks were being elected to Congress despite a significant sentiment that Congress should have more. The bad law that resulted was divvying up Congressional districts by race.

Allocating representation in Congress by skin color is almost as bad as allocating arrests, convictions and sentencing in murder cases by skin color. It denies our individuality. It assumes that Blacks will and should vote only for Blacks while whites will and should vote only for whites. To the extend those assumptions are unfortunately accurate, the effect is to further drive people apart racially. It is all founded on a destructive us/them view of race.

Moreover, this racial divisiveness is self-perpetuating. Politicians become motivated to reinforce their constituents’ destructive beliefs that they can only be represented by a member of their own race, not “the other” race.

In short, racial gerrymandering is founded in racism, and it promotes more racism.

In my upcoming final installment of this series, I’ll discuss the Supreme Court’s landmark ruling last week abolishing racial gerrymandering. It’s the most boldly correct and politically consequential decision in years. And I’ll discuss the media’s disgraceful reporting on it.