Race, Crime, and the Law by Randall Kennedy
Race, Crime, and the Law
by Randall Kennedy
Pantheon. 539 pp. $30.00
Four decades ago, the civil-rights movement began in earnest. Over three decades ago, the first major civil-rights act was passed. During those heady times, anyone who wondered where our society ought to head was usually told that it was struggling to free itself of racial classifications. When, as a student, I asked a liberal professor what African-Americans wanted, I was told, simply, that they wanted to be treated like everyone else.
It was a compelling answer, and one that I believed. In those days, a racial liberal was one who believed in a color-blind Constitution. But without knowing it, we were wrong as we spoke.
When the Supreme Court outlawed school segregation in 1954, it did so on the grounds that separate schools were inherently unequal. But in justifying that claim, it looked not to legal principles but to the findings of social science. Racially separate schools were unequal, it asserted, not because it was wrong to tax everyone for education and then deny students equal access to what their parents had supported, but because separate schools might make black students feel unequal. Some years later, when a Southern school opened its doors to students of every race, the Court objected, saying that a freedom-of-choice plan was wrong if it did not achieve the “ultimate end,” which was a “unitary, nonracial system of education.” That is to say, desegregation was not enough; actual integration was essential. A few years later, the Court, now speaking through the words of a Chief Justice appointed by a Republican President, said that not only was freedom of choice insufficient, but if separation had been the result of actual past discrimination, then the Constitution might require redrawn district lines, the reassignment of teachers according to race, and court-ordered busing.
As businesses began to open their doors to black Americans, the same verdict was passed. The Duke Power Company, ruled the Court, could not require new employees to have a high-school diploma if that requirement affected black and white applicants differently. The company would have to show—somehow—that any such qualification was necessary to the performance of its tasks.
Again, when all college doors were opened to African-Americans, it was not enough that black and white applicants have an equal chance based on prior academic performance. It became necessary that a certain fraction of blacks be admitted, in order to achieve an undefined goal called “diversity.” Though the Bakke case (1978) limited the outright use of quotas, it did nothing to slow this demand for diversity. When, this year, the California constitution was amended by referendum to bar the state from discriminating against, or granting preferential treatment to, any individual or group on the basis of race or ethnicity, those who supported the amendment were inexplicably denounced as racists. The longstanding idea that the Constitution is color-blind was not only refuted, it was stood on its head; to advocate color-blind law now marked one as a reactionary.
When, finally, the 1965 Voting Rights Act, part of the landmark civil-rights legislation of the mid-1960’s, was amended in 1982, the new Section 2 gave African-Americans the right to demand the adoption of altered electoral districts in cities and counties, not because existing district lines reflected a discriminatory intent but because the absence of elected blacks was itself deemed to be racially discriminatory.
Given the move from race neutrality to race favoritism, and the emergence of racial preferences in law—a trend that has proceeded apace for 30 years now—one looks almost in vain for any assertion of the old principle of racial neutrality. I come, therefore, to the new book by Randall Kennedy, a professor at the Harvard Law School, with a certain enthusiasm. For in it Kennedy boldly puts forth a claim for race neutrality at least with respect to one part of the law namely, criminal law.
In particular, Kennedy rejects the notion that high penalties for dealing crack cocaine, or laws requiring juvenile curfews, indisputably reveal a racist intent, or that getting tough on urban gangs hurts blacks more than it helps them. He has no patience with the African-Americans who rallied around a black gang that raped a white woman, or who defended Mayor Marion Barry of Washington, D.C., when he was arrested using cocaine, or who supported a black federal judge impeached by the Senate, or who devised a new legal theory to excuse blacks for beating a white man, Reginald Denny, nearly to death. On similar grounds, Kennedy disdains proposals that juries in criminal trials be racially mixed.
Kennedy does not hold these views because he thinks race does not matter in American society. On the contrary, it matters greatly. Human beings, with their limited capacity for extended sociability and their ingrained preference for groups like themselves, make distinctions on evidence far less obvious than race. Fifteen-year-olds will not play with thirteen-year-olds; men make jokes about women, and women return the compliment; every ethnic group ridicules its rivals (though today this is done privately); Yankee fans hate Red Sox fans and vice versa. All these things matter, and race matters even more.
But Kennedy has a different standard for the law, because it is the law. The central concepts of Anglo-Saxon criminal law rest squarely on the principle of legal equality, granting different criminal verdicts to persons only on the basis of their behavior and such narrowly defined considerations as accident, duress, self-defense, and premeditation. Who you are—rich or poor, black or white—should make no difference. It is out of this traditional understanding of the law that Kennedy writes: “I oppose racial discrimination by public officials in all but the narrowest of emergencies.”1
Of course, how the law is applied often does make a difference, and so Kennedy devotes two chapters to reviewing how, historically, the law’s practical applications have been distorted by anti-black prejudice, slavery, lynchings, and racially selective enforcement. His account helps us understand why so many African-Americans have come to distrust the way the law has been used. As a nation we have come far in correcting these problems, and we still have a way to go. But shifting applications of the law have not, in general, required altering the law itself. The statutes that allowed an Alabama jury in 1931 to convict the Scottsboro boys on charges of having raped two white girls, or a Mississippi jury in 1955 to acquit the men who lynched Emmett Till, did not have to be changed; what had to change was the conduct of the people who enforced those laws: police, judges, and juries.
Although racist assaults against defenseless blacks have not ended, they have been sharply reduced. To a degree, they have been replaced in importance by the no less racist claims of some African-American law-school professors who now endorse the practice of racially based “jury nullification.” That means excusing African-Americans from some crimes simply because they are African-Americans. This kind of subversion of the law is no different in principle from what whites have historically done in excusing white attacks on blacks, or in failing to enforce the law when blacks have stolen “only” from other blacks. A principal advocate of the new view is Paul Butler of the George Washington University Law School, who has argued, in the prestigious Yak Law Journal, for making juries the expression of racial kinship, a position which discredits the notion that the law rests on the moral foundation of equal treatment of all. Butler’s view is, in effect, that there should be no law. Kennedy subjects Butler to a savage attack.
In another area, Kennedy examines at length the controversy over racial discrepancies in the imposition of the death penalty. Here, although claims of across-the-board discrimination against blacks can easily be shown to be false, there is, he concludes, a particular, middle range of homicides—neither the least vicious, where the death penalty is rare, nor the most vicious, where the death penalty is common—in which the racial identity of the victim does make a difference, even after controlling for other factors. In this middle range, a death penalty is more likely to be imposed in the case of a white victim than in the case of a black victim. Kennedy relies on a study by David Baldus which may not be the last word on the subject and which in part was the result of the litigation strategy of the defense team in a murder trial; but it is a competent study, and could have led the courts to restrict the death penalty only to the most serious homicides. (It did not.) Kennedy’s analysis of the Baldus study is done with great care.
The most difficult task Kennedy undertakes is to find ways of reducing the anger that honest blacks, especially black men, feel when they are the targets of heightened police scrutiny. We have all heard of decent African-Americans or Mexican-Americans being stopped and questioned as they move about engaged in innocent pursuits. But everyone also knows what the police know: African-Americans are much more likely than whites of the same age and sex to commit violent crimes. People are more worried about facing a young black male alone on a street corner than about facing a young white male. Jesse Jackson has confessed to such feelings himself. Of course, the chances of an average black male assaulting or robbing anyone are very small. But they are six times higher than in the case of an average white male. How should we—and more importantly, the police—act when we take these odds into account?
Kennedy struggles with this problem but not, I think, altogether successfully. He acknowledges that most appeals courts, hearing complaints that the police have used race or ethnicity as a marker for further investigation, have upheld the police. But at the same time, he reminds us, courts have subjected the use of racial classifications to “strict scrutiny”—that is, to the test that they are everywhere wrong unless narrowly tailored to serve a compelling government interest. Is there, then, a way to reduce the anger felt by innocent blacks or Mexican-Americans without hopelessly entangling the police in a policy that deprives them of the reasonable hunches their past experience has generated?
Kennedy’s answer to this conundrum is to propose more intensive policing so that everyone will be stopped at the same rate, except in unusual cases where racial identity is part of a clear description of a criminal suspect. “Instead of placing a racial tax on blacks, . . . governments should, if necessary, increase taxes across the board.” To do this, we will have to hire many more police officers, each of whom will be denied the right to use race as an indicator suggesting closer surveillance.
But this will not happen. Most of our big cities are already in desperate need of more officers. I have made this point on many occasions, citing the growing disproportion between citizen calls for help and the number of officers available to respond. In 1960, in Los Angeles, for example, there were three reports of violent crime for every police officer; by 1990 there were ten. It is true that a few more cops have been hired, but not nearly enough. To add yet a new goal—the pursuit of nonracial policing—to the many other reasons for beefing up the force will, I think, meet with a similar lack of response.
But suppose Los Angeles today had as many police, in proportion to the police workload, as it did in the 1940’s, when the police had enough time to ticket you for jaywalking. Even if Los Angeles had 20,000 officers instead of its present total of fewer than 10,000, each individual officer would still be working in a remote area, detached from judicial supervision, facing tens of thousands of unknown citizens, having to identify people worth questioning by relying, as ever, on cues: age, sex, location, attitude—and race and ethnicity. Statistically, each cue is about as reliable as the next. Kennedy cannot raise the tax on all of us high enough to make race meaningless in investigations any more than he can raise it high enough to make being a young male meaningless.
I have no quarrel with Kennedy’s urging that judges be ready to strike down police investigations in which race is used as a cue without any other supporting cues. I also admit that this, by itself, will not do much to improve the lot of innocent African-Americans, not only because the police may sometimes lie about why questioning has occurred but, more importantly, because once they have been released, innocent African-Americans who feel they have been harassed will ordinarily lack a legal opportunity to question the police conduct.
But the problem remains what it always was: when police were plentiful they were suspicious of young black males, and now that they are often scarce they are still suspicious. The answer to this problem is to bring down the rate at which young African-Americans commit crimes. Once black males commit murder at the same rate as white males, rather than at a rate six or more times higher, race will no longer be a useful cue and the police, with little judicial prompting, will cease depending on it.
And how does one reduce the youthful black crime rate? There is no well-understood program, though ideas for one abound. But the cause is not altogether hopeless. Arnold Barnett of MIT has already found a sharp decrease in the homicide rate among adult black males. And exceptionally difficult as the task may be, it is no more difficult than persuading the police—and pedestrians, and employers, and taxi drivers—to abandon the practice of estimating risk according to skin color. As long as we cannot make this argument convincingly, many law-abiding black men will continue to find themselves dodged by pedestrians, ignored by employers, and avoided by taxi drivers. They will suffer, and regrettably so. But the answer to their problem is not to be found within the confines of the law.
One last word: Randall Kennedy is an African-American. It should not be necessary to say this, but even in discussions of the law, race still seems to matter.