“If I were doing the Melbourne traffic lights, I would actually have — instead of the woman — I’d have a Sudanese guy with a crowbar flashing up on the lights to warn you that you’re about to be carjacked …”

One begins to see why Rowan Dean, the author of the above hilarity, is described by Andrew Bolt as “Australia’s finest satirist”.  His work is the very essence of satire, as you can tell from what he said next:

“… which is the situation that Daniel Andrews has left that state in, a state of anarchy. Nice one, Labor.”

It’s not only the wit that’s razor sharp — so is Dean’s analysis of a critical issue of social and legal policy. He has pinpointed the problem: Sudanese men are all carjackers.

Racial profiling is hardly a new phenomenon, but it is very much back in vogue. The Profiler-in-Chief let the dogs off the leash when he pronounced, of the entire Mexican population, that “they’re rapists”.

In Australia, racial stereotyping had a boom time in the Howard/Hanson years when we were all fearful of Asians, that monogamous mass of Triad drug dealers who turned Cabramatta into a godless den of excellent Vietnamese food. Then there was a lull, before Tony arrived to remind us that fear of foreigners is a timeless national value.  And, on cue, Hanson returned with a fresh set of targets of whom she can insist “they don’t assimilate …”, while pointing to “ghettos” as if she has the slightest clue what that word actually means.

However, I’m not here to be outraged; I’d rather point out the deadly consequences of racial profiling for the civil society with which social “conservatives” quaintly like to associate themselves. The danger is very real and history shows in explicit terms what it does to the legal systems that exist to protect us all.

The US Supreme Court is, thankfully (for now, until Trump remakes its membership), alive to the concern. This week, it brought down a ruling that seeks to balance the insidious danger of racial profiling against the general principle of blind justice, a central pillar of the rule of law.

[Rundle: the right suffers a hat-trick of losses on 18C, and it was just amazing to watch]

Miguel Angel Pena-Rodriguez, a Hispanic American, was accused of sexually assaulting two teenage girls in the bathroom of a Colorado racetrack. He was convicted by a jury. Afterwards, his lawyer “entered the jury room to discuss the trial with the jurors”. (That could never happen in Australia, but is apparently unexceptional in the US.) Two jurors told him that another juror had said this during the jury’s deliberations:

“I think he did it because he’s Mexican and Mexican men take whatever they want.”

Further, relying on his experience as a former law-enforcement officer, the juror had explained that “nine times out of ten, Mexican men were guilty of being aggressive toward women and young girls”.

There’s an ancient rule of law that jury verdicts cannot be impeached. This means that, once the jury has made its decision, there’s no looking behind it to discover whether the jury did its job properly. It goes back to 1785, in a case where the jury had decided its verdict by tossing a coin. The court refused to hear evidence of this, setting down the rule that jurors can’t testify later about what happened in the jury room.

This “no-impeachment” rule was adopted in America, being applied in cases such as one in 1915 where the jury decided on the amount of a damages to award by averaging out what each of them thought would be fair. The theory is that, if jurors’ reasoning processes could be re-examined later, “no verdict would ever be safe”. However, jurors can give evidence about extraneous things, which infected the jury.  A common example occurs where it turns out that jurors have been doing their own investigating on the internet instead of just considering the evidence.

The Supreme Court was troubled, however, by the particular problem of jurors making their minds up on the basis of racial bias or prejudgment. Of course, that happens all the time and always has (the majority cited the example that, in 1865-6, all-white juries in Texas acquitted all 500 white men who were charged with murdering African-Americans). However, when there is clear evidence, as there was in the Pena-Rodriguez case, that a juror has decided on racial grounds, should an exception to the no-impeachment rule be made?

The court decided yes, ruling that the Sixth Amendment to the US Constitution (which ensures citizens of, among other things, “an impartial jury”) overrides the no-impeachment rule in a case where a juror makes a clear statement that they relied on racial stereotypes or animus to convict someone.

[The wildest and wackiest submissions to the 18C inquiry]

I insist that you read what the Supreme Court said, because it’s 100% true and deadly important:

“Racial bias [is] a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice. An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy.”

In Australia, as usual, we have no such legal protection. We do have the famous section 18C of the Racial Discrimination Act, which Dean’s slur on Sudanese people obviously contravenes but of which he is evidently unafraid. 

But 18C is, in this as in most contexts, a distraction. Blatant racial stereotyping, of the kind Dean thought so clever, will not be prevented by its outlawing. In the closed confines of jury rooms, boardrooms and other chambers where decisions are made and lives affected, it will continue to do its insidious work, perpetrated without thought or care by people wielding their privilege against those on whom they dare to believe they can pass judgment on the evidence only of their skin colour.

I agree again with the Supremes here: “The duty to confront racial animus in the justice system is not the legislature’s alone.” They enlisted the courts to play a crucial corrective and protective role.

I’d add that the same responsibility lies in the wider world. Laws alone cannot protect our society and its legal system from the corrosive effects of the bile that bigoted sentiment will always place in men’s mouths. All of the institutions of society, and most importantly those who purport to lead, must fight back whenever racial profiling rears its ugly head.