Apr 30, 2010

What do you mean, reasonable?

There's an odd moment of structural instability in the criticism of Arizona's new immigrant documentation law. The criticism, for the most part, hangs on the idea that by making "reasonable suspicion" an acceptable reason to demand documentation, the law will allow racial profiling, violating the Bill of Rights' Fourth Amendment protection against unreasonable searches. The critics don't think that race is a valid reason for suspicion -- since American isn't a race -- but think it will, under the new law, count as a reasonable. So the argument, here, as I understand it, is that the law is to be opposed because, under this law, the unreasonable reason will be considered reasonable.

But if racial profiling is unreasonable, then how could it count as a reason for suspicion?

The critics of the law have kind of taken to just assuming the racism of their opponents and the phrase "reasonable suspicion," which is probably true but also cedes too much. Maybe it would have been better if they had just said, over and over, "yeah, reasonable ... but, um, what is a reasonable suspicion? Could you give me an example?"

The text of the law does, also, allow for at least some profiling, with the half-prohibition that documents cannot be demanded "solely" on the grounds of "race, color or national origin." This opens up the same weird indeterminacy in the law, in that race-based suspicion is considered to be both reasonable and unreasonable, sufficient and insufficient, a kind of half reason that both can and can't be used to justify something. What this probably means, practically, is that an officer cannot cite race as a reason for demanding documentation, but that if a defense attorney can show race was a factor in the officer's actions, the officer can admit it without any negative consequences. This doe mean that even overt racism wouldn't get the case thrown out of court, since the officer can easily give an account of race plus something, while the defense has the impossible task of arguing race was the one and only reason.

The real issue of the law is probably more rightly the question of whether people in America should be required to carry documentation at all times (something that's pretty normal in much of the world and yet which seems somehow opposed to core American principles); the real issue in the debate over the law is probably actually the question of what an American looks like. The mistake, however, the misplaced emphasis of the criticism, and the odd indeterminacy of the idea of reasonableness in the law points to some of the strained seams of the legal concept, which is to say the way that it is a fiction and an after-the-fact construction.

In criminal law, for instance, a person's actions can be judged by comparison to what a "reasonable person" would do, which is meant to be an objective standard. That requires, however, a jury (say) to imagine a hypothetical person who is a kind of theorized ideal. The "reasonable person" can't actually be a person in order for the legal fiction to work, since any actual person would necessarily be subjective, and would not provide an objective standard unless the law declared that this particular person was arbitrarily going to be the standard (allowing legal questions to be settled by just asking the person what he or she would do). But how can anyone know what a hypothetical person who is really reasonable would do? If two people disagree on what a "reasonable person" would do -- say, for example, at what speed such person would drive on a highway during the rain -- what can they appeal to as support, except their own, subjective, conjecture? Wouldn't any disagreement on reasonableness automatically be at an impasse?

The fictionality of this quickly becomes complicated and possibly confusing, too, when it ceases, in practice, to be a fiction. For example, in the Don't Ask Don't Tell policy, a soldier can be dismissed for "language or behavior that a reasonable person would believe intends to convey that [the soldier is] homosexual or bisexual." But if, for example, a Marine major believes a private is acting gay, the private can't argue that a reasonable person wouldn't think so without arguing or at least implying that the major is not a reasonable person. Thus thinking something is true is almost ipso facto transformed into it counting as true because of the "reasonable person" standard, unless, again, there's not a consensus, and, to quote a phrase, reasonable people disagree.

Even this, though, misses the kind of obvious and strange point that reasons and reasonableness are almost always constructed after the fact of the action. This is, in some ways, necessarily true, since we don't have access to the intentions or thoughts of the person acting, but only to the actions, and to the person's own account, which, 1) can only occur as an after-the-fact explanation and which, 2) we would have to assume is as least somewhat biased. There is also, however, no requirement, for example, that an officer have good reasons for something as it occurs, but only that reasons can be found in the future. An officer might well act on instinct, or not think at all and only react, as might be necessary in some emergency situations, and this is normally acceptable if an explanation can be found that could, theoretically, have been the reason, even if it wasn't. However, this is not to say that to say a suspicion that turns out not to be true is then, therefore, unreasonable, if one can construct a way in which it could have been reasonable, even if it wasn't and isn't.

There is, in this sense, a kind of tenselessness to the law enforcement phrase "reason to believe." On the one hand the reason seems to be present and projected into the past ("there was reason to believe" not necessarily meaning that that reason was the reason, but instead meaning there is, now, a reason that can be put in the past tense) and, on the other hand, the reason is not present now (so "there was reason to believe" means the reason can not be supported in the present, with present information, but could have been in the past, which puts it in that past perfect formation, "to have believed" but without actually having happened in the past). The reason, then, in this little bit of law enforcement lingo, is grounded neither in the present nor in the past, but in a hypothetical. It's almost as if there's a hypothetical tense.

But even if one ignores the fact that a reason for a suspicion is, in a way, a construction and a fiction which is, perhaps, both tenseless and indeterminate, it is close to impossible to chose among possible reasons for an interpretation of an action without resorting to conjecture. When one is presented with multiple possible reasons for a past action, all of which are constructed from the evidence of accounts and one of which involves there not having been a reason, how does one decide between them, how does one reach a conclusion of reasonableness (except, possibly, through charity)?

For example, I reported on a case where a police officer detained and deported about a dozen teenagers. In his account of what happened, he was responding to a report of truancy, a group of Hispanic high school students having a party in the middle of the day. When they told him they didn't have to be in school because of their age, he asked for documentation, and then, he says (and there was no way to verify this), they told him they didn't have any because they were in the country illegally. He then detained them all and called their parents. When some of the parents showed up, they were asked for documentation and, according to the officer, didn't have any, and so were also detained for deportation. I was later told, however, in a secondhand account (which also could not be confirmed), that the officer had a history of derogatory comments about Hispanics, and that the students had "mouthed off" at the officer, possibly calling him a racist nigger, and he had said he was going to "fucking deport them and their whole spic families."

Given what would seem to be three possible reasons for the detainment and deportation -- racism, retribution, or accepted, legal law enforcement procedure -- or some possible combination of reasons, plus the fact that none of the facts can be independently verified, how should one go about deciding on a reason or choosing a constructed account of a reason, without just picking one, or deciding on a bias to take?

Neither court nor jury ever got to consider that, of course, since the teens disappeared into ICE vans with only a few inches of text recounting the police's account in the paper and 20 seconds of typically breathless and unquestioning footage on that night's news.

So maybe reason has nothing to do with it.