Coloring Crime and Justice

Daniel D. Polsby from the December 1997 issue

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We could explicitly legislate against the use of race in suspect profiles, but even explicit legislation would be bound to fail at street level. If such profiles are efficient (as Kennedy concedes they often would be), but it remains difficult or impossible to tell whether they have been used in a particular case, it is a safe bet that their use would continue, though protected with artifice, half-truth, euphemism, and outright lying. This is not the way things should be, but alas, under the circumstances, should has little power.

So we are left with a daunting practical problem with criminal justice in a culture riven by race. One cannot dispense with a justice system, but that system can only be perfected to a certain, not very satisfactory, point. One might take this situation as a cue to launch the postmodernist set piece, cobbling an overtly racist past together with a racially disproportionate present into a polemic for the quintessential illegitimacy of a (white) justice system attempting to adjudicate the guilt of non-white defendants. Arguments asserting the inadequacy of institutions dominated by whites to represent in good faith the concerns of minority constituencies are à la mode in contemporary universities, as the widespread influence of Lani Guinier's writings on racial gerrymandering will attest. Kennedy, to his great credit, seems not to have a trendy bone in his body. His old-fashioned sensibility allows him to see that apocalyptic contentions about the impossibility of sound race relations lead nowhere. Better to make what incremental improvements one can and keep on plugging.

Improving the racial justice of criminal law, or its justice in any connection, is a worthwhile objective in its own terms. Yet one wonders whether Kennedy overestimates the degree to which changes within the four corners of the legal system could bring about any meaningful or sustained sort of racial reconciliation. American race relations, after all, have many painful nodes. Not just the justice system, but the economic and political systems as well, often seem to produce tensions along racial lines.

Moreover, one cannot logically exclude the bleak possibility that, at the end of the day, what each race wants from the other in these various arenas will consist of things the other is not prepared to give. But Kennedy's arguments, at a minimum, push the conversation in a positive direction. It is not an easy thing to do in a book about race and crime, and we may be grateful for his accomplishment.