More than 60 years ago, in two cases involving the Scottsboro boys--black youths found guilty and sentenced to death by all-white juries for allegedly raping two white women--the Supreme Court overturned a series of unlawful convictions and invested itself in a slow disassembling of America’s apartheid system of criminal justice. Today, in the wake of the civil rights revolution and the legal innovations of the Supreme Court under Chief Justice Earl Warren, blacks (as well as other minorities) enjoy a formal equality before the bar of the criminal law. They possess the right to counsel, to sit on juries and to be free from intentionally racist police conduct, prosecutions and sentences. They also now serve as officers of the law at every level--from beat cop to justice of the Supreme Court.
Yet, as Harvard law professor Randall Kennedy reminds us in his meticulously researched, regrettably dense and sure to be controversial “Race, Crime, and the Law,” for all this progress, the problem of racism in the criminal law remains serious and stubborn. Police misconduct, such as the excessive use of force or chronic harassment, continues to plague minority communities. Despite explicit prohibitions, prosecutors still manipulate jury selection to remove minorities from the jury box and judges, far too often, let them get away with it. In general, the system regularly under-protects minority communities from crime while over-publicizing minority wrongdoers.
Our legacy of racism also has created a destructive backlash. Among some blacks, distrust of the police and of the “system” has become so deeply ingrained that they refuse to credit police testimony or ignore strong evidence of criminality. Johnnie Cochran “played the race card” in the O.J. Simpson case because he knew from that experience it might work.
In recent years--with the Rodney King beating case, the Reginald Denny beating trial and, of course, O.J. Simpson--whatever mutual faith we had developed in our system’s ability to deliver impartial justice has suffered a terrible setback. Many of us have gravitated to extremes. One camp minimizes the injustices of our racist past and denies the continuing influence of race on criminal justice--except when minority lawyers use the “send a message” defense to avoid convictions.
A second camp sees racial oppression everywhere. To abolish today’s “white man’s law,” they would create a system explicitly organized by race. At a minimum, this group would require that every jury panel conform to the racial proportions of the community. Some of its theorists even embrace the idea that, in order to protect black communities, black jurors should vote to acquit black defendants charged with “nonviolent” crimes.
Amid this depressing chaos, Kennedy, a leading black academic, seeks a middle ground. He recognizes and condemns the racism of both past and present but also, and as important, acknowledges the racial progress we have made. The ultimate question for Kennedy is how to build on that progress. He answers, emphatically, that the only satisfactory response to the racial divisions that haunt the criminal justice system is to refuse to accommodate them and to establish a system that rejects racial sorting or preferences of any kind.
In making his case for “colorblindness,” Kennedy uses a persuasive thoroughness and candor to criticize pet practices of both the right and the left. His first target, for example, is the judicially sanctioned idea that the police may sometimes take race into account when assessing whether an individual is sufficiently suspicious to justify stopping him for questioning. Kennedy frankly acknowledges that it is sometimes rational for the police to use race as a factor in this analysis. Statistically, certain kinds of criminal conduct--say, the smuggling of illegal immigrants--do have a correlation to race.
Nonetheless, Kennedy argues convincingly that courts should forbid the police from acting on such loose statistical linkages between race and criminality. These gross stereotypes have been fuel for pure racism in the past. And their use, even if well-intentioned, inevitably subjects many law-abiding minority citizens to the pain and indignity of police interrogation simply because of their race.
Turning to the other side of the political spectrum, Kennedy is equally effective in rejecting the popular suggestion that, to ensure diversity, we should require minority representation on every jury. Kennedy is not naive. He acknowledges that minorities tend to be under-represented on juries. And he knows that inside the jury room--where differing backgrounds and experience influence individual judgments--race does matter. In response, Kennedy endorses a variety of race-neutral strategies for increasing the presence of minorities in jury pools.
But he balks at jury box quotas. In addition to raising numerous practical problems, such a system of jury service, he concludes, will only encourage us to think of ourselves as representing the interests of our separate racial identities, not our citizen-selves. By infusing every case, apparently indefinitely, with the idea that we cannot learn to trust each other, “jurymandering,” as the quota system is sometimes called, is a strategy of hopelessness. And, on balance, it is hard not to share Kennedy’s judgment that carving another color line so deeply into the law will cause many more problems than it solves.
In a few particulars, Kennedy’s insistence on denying the legal relevance of color--even as he recognizes its social significance--leads him into tight corners. In the Rodney King beating case, for instance, he finds no fault in the judge’s decision to move the trial from Los Angeles, a jurisdiction with a black population of 11%, to Simi Valley, a jurisdiction with a black population of 2% (and few other minorities as well). In Kennedy’s view (mirroring the Supreme Court’s), such a change of venue is permissible unless the judge was acting with racist intent. As Kennedy points out, there was no evidence that the beating case trial judge chose Simi Valley for deliberately racist reasons.
Kennedy’s arguments, however, reveal his own rigidness and inability to accommodate certain social realities. A paramount duty of the criminal justice system is to retain the confidence of the entire community it serves. Moving this racially charged case to Simi Valley ensured not only that the jury pool would be drained of minority perspectives and experience but that the verdict (especially an acquittal) would be delegitimized in the eyes of those citizens who felt the judge had shut them--and their view of police conduct--out of the process.
Given the history of racism that Kennedy extensively documents (as well as the substantial problems that remain), it is neither surprising nor unwarranted that minority communities exhibit a deep suspicion of the criminal justice process. Even if we should not endorse inherently divisive reforms such as jury quotas, our predicament cries out for what might best be called confidence-building measures. Surely, some of these measures may (and probably must) include such nonthreatening, racially inclusive maneuvers as seeking to ensure that inherently divisive cases arising in the racial complexity of urban Los Angeles do not disappear into the homogeneity of suburbia.
But this objection is a relatively mild one. While a strict adherence to colorblindness may not always best serve the interests of justice, Kennedy’s basic argument has undeniable merit. That impulse is simply this: that the long-term interests of minority communities in general, and the black community in particular, lie not in separatist strategies for reforming the criminal law but in responding to individuals on the basis of their conduct rather than their color.
As becomes evident from Kennedy’s careful exegesis, belief in the merit of colorblindness begins from both principle and pragmatism. Even if one believes, as Kennedy does, that inclusive race-conscious measures (such as requiring minority representation on all juries) are more acceptable than racially exclusionary ones (such as eliminating minorities from juries), racial preferences of any form still reinforce our national propensity to think in terms of color. If history is any guide, that propensity, in the run of things, will work powerfully against the interests of minorities. In this sense, then, colorblindness may well be a matter of minority self-interest.
Furthermore, colorblindness in the criminal law is a morally compelled ideal. The purpose of the criminal law is a collective holding to account, a joint enforcement of the limits of acceptable conduct. When we stop aspiring to undertake this project as one community--for example, when we embrace the idea of race-based jury nullification--then we have lost everything.
It is hard to know how to strengthen the ties that bind us in an age when a sizable group of the citizenry believes that the government is conspiring to flood its neighborhoods with crack and infect them with AIDS. But Kennedy’s sober rationality, honesty and respect for opposing views mark a sensible path.
This makes it particularly unfortunate that Kennedy’s art is not up to his argument. Much of the book arises from Kennedy’s academic articles and his narrative--overburdened with case law and scholarly score-settling--is likely to frustrate a reader unlettered in law.
For that reason, his central message bears repeating. We have come a long way from Scottsboro. We have a long way still to go. And we can survive the journey only together.