Coloring Crime and Justice

Race, Crime and the Law, by Randall Kennedy, New York: Pantheon Books, 538 pages, $30.00

Less than 2 percent of Americans are directly involved with the criminal justice system at any given time. This includes all the players–criminals, police officers, judges, lawyers, and corrections officers. Despite that small number, criminal justice is still one of the indispensable adhesives holding society together. If the product of the system is seen as tainted or in meager supply, it can have baleful effects on citizens' attitudes toward themselves and each other, and can influence how they behave in public. When that famous Simi Valley jury refused to convict Rodney King's attackers, the whole country gasped and South-Central Los Angeles and Koreatown burned. When, several years later, an even more famous California jury refused to convict O.J. Simpson, the whole country gasped again and–well, Beverly Hills and Brentwood were not torched, but American race relations took a sharp turn for the ugly.

White Americans saw two things: O.J. Simpson was obviously guilty, and African Americans were celebrating his escape from justice. Celebrating! Dancing the "freedom dance along with my sisters and brothers all over the world," in the odious words of George Washington University law professor Paul Butler. That verdict raised unsettling questions about the future of American race relations, as it seemed justice could mean different things to people, depending primarily on whether they were black or white.

Race, Crime and the Law is meant to calm those troubled waters. The book considers the difference that race makes to the experience of individuals and communities with the criminal justice system. It is the soberest and most compendious treatment of this question yet written. As its author, Harvard law professor Randall Kennedy, argues, race always has mattered greatly, and it still does: to the police, to courts, and to the rest of the justice system.

Race matters first of all with respect to whether one becomes entangled with the system in the first place. After one is involved, race also affects how cases are handled and disposed of. Most of the book rehearses the considerable evidence for these propositions, knitted together by a narrative dedicated to creating rapprochement between the various antagonists–ideological, political, and racial–who share a concern about the problem of race and crime.

It's a tough task Kennedy sets for himself. He tries to bring "law and order" conservatives into the same conversation with libertarians. He tries to bridge the divide between the races, and between political entrepreneurs whose exclusive objective is to advance what they see as the interests of minority communities specifically and those who have concluded, for any number of different reasons, that racial sorting has lost any use it might ever have had for improving the quality of American community life. While success in bridging all those gaps is nearly a hopeless prospect, at least for the present, Kennedy tries admirably.

His basic strategy is to insist that for all the serious, race-linked shortcomings of American criminal justice, it is the only game in town, and that African Americans above almost all others have a stake in a tough and effective system of law enforcement. Most of the racially objectionable impacts of the legal order can be ameliorated, Kennedy argues, if racial categories are rigorously and actively exorcized from the criminal justice system. Race should be used neither as a criterion of jury selection nor as a criterion of police suspicion. When racial disparities turn up in criminal dispositions, as with the death penalty, a presumption of invidious discrimination should be entertained. Juries must not engage in race-based "nullification" (that is, acquitting an obviously guilty defendant for reason of policy or politics). Judges should discourage attorneys representing black defendants from "playing the race card"–that is, inviting jury nullification or inflaming racial passions.

It is hard to disagree. Race, Crime and the Law is a thoroughly, and characteristically, decent performance, by a scholar and teacher who has achieved great distinction by patiently expounding on the vices of racial sorting and promoting the ideal of treating people as individuals rather than as vectors of some abstract, mandatory racial identity. But there remain serious questions–not so much about Kennedy's aspirations for our country as about the means he offers for getting there.

Many of the things Kennedy rightly says the justice system must not do with race, it is already forbidden to do (or does not do anyway). It is, for example, already unconstitutional to use race as a criterion of jury selection; the trick is to figure out when peremptory challenges are being used in a race-conscious way. In most situations it is probably unconstitutional to use race as an element in a "suspect profile"–that is, a formal protocol that law enforcement agencies might use to focus suspicion on someone who has not actually engaged in suspicious behavior. But what can be done about the private, unofficial profiles that officers carry around in their heads? It is surely unattractive and often destructive for lawyers to "play the race card" in criminal trials, but trial judges already have the authority to prohibit overtly racial appeals to jurors. Of course judges vary in quality–and on average they are merely average–but there is little one can do about that. Similarly, judges are not required to inform jurors, or permit counsel to inform them, of the jury's nullification power, which allows them to acquit notwithstanding the evidence.

In most of the obvious and easy-to-fix ways, America has cleaned up its racial act. Public opinion no longer tolerates overt racial prejudice. Even an isolated off-color joke, insensitive remark, or, for that matter, the affirmation of a nonderogatory stereotype (for example, that blacks are innately gifted basketball players) could cost a prominent person his job and his respectability. Law enforcement officers nowadays are at risk of a prison sentence if, in laying hands on a black suspect, they seem to display racial animus. And yet racial polarization over issues of justice stubbornly remains.

Instead of disappearing from the world of criminal justice, race has been driven into the shadowlands of the tacit, where it is difficult to identify and intercept. Police officers are required to have articulable suspicions before stopping a suspect for questioning. A black man in a white neighborhood may not be stopped and questioned merely because of his race, or detained if he refuses to identify himself or give a satisfactory explanation of his presence. On the contrary, for more than a generation courts, including the U.S. Supreme Court, have struck down all sorts of ordinances and statutes similar to vagrancy laws, not because officers had improperly arrested the suspect in the particular case but because the open-ended vagueness of such laws leaves too much discretion to police officers, who might be tempted to abuse it.

The law is clear enough, yet its ability to constrain how officers actually behave is limited. If an officer's arrest or questioning of a suspect is called into question, he will usually have enough sense to say that he became suspicious because the suspect was behaving nervously and furtively, or that he exhibited some suspicious congeries of other readily observable behaviors that could suggest trouble. The officer will know enough to leave race out of the accounting. In a given case, maybe that's the truth and maybe it's an undetectable lie. No one can tell. How should the law respond?

One can either decide that the system should not register instances of racism that it cannot specifically detect (which is basically what we do now), or we can adopt inferential means of detecting that which we cannot observe. The much-discussed but never passed Racial Justice Act is an example of the second option.

The RJA, initially introduced in 1988 and eventually attached to (and then detached from) the 1994 Omnibus Crime Control Act, would have created a rebuttable presumption that statistical racial disparities in a given jurisdiction in charging capital crimes, levying capital sentences, or carrying out capital punishments were the result of unconstitutional discrimination. Before the state would be allowed to carry out a death sentence, it would have to prove that racial motives had not been a determining factor at any point along the line.

At least when the subject is the death penalty, Kennedy is a believer in such inference-forcing uses of statistics; in fact he even goes so far as to claim, in the most unconvincing passage in the book, that a petitioner seeking to avail himself of the RJA's protection would face "an uphill climb." As a general principle, trying to sift patterns of arrest and prosecution for racially discriminatory motives that were impossible to detect directly but that might be revealed in racially disproportionate data is wildly unworkable. It would surely falter even in a justice system where there were no (or few) actual racial disparities in criminal behavior. But it would be downright impossible in the real world, where such racial differences are very marked, especially in connection with the most serious crimes. If cops had to constantly consider statistical racial proportion in their actions, they would swiftly lose credibility and effectiveness. Cops would either have to arrest more evidently innocent white people or arrest fewer evidently guilty black ones.

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.

Daniel D. Polsby ([e-mail]) is Kirkland & Ellis Professor of Law at Northwestern University.