Two Views of a Black Man Behind the Wheel

As she prepared to pronounce sentence last month in Boston, all U.S. District Judge Nancy Gertner knew for sure about Alexander Leviner was that he was a lousy driver and that police had caught him in the back seat of a car carrying a semiautomatic handgun and 14 rounds of ammunition. It was the latter offense that had landed the 33-year-old black man in her federal courtroom, and it was Leviner’s long record of convictions--nearly all for driving with a suspended license and minor drug-possession charges--that required the judge to sentence him to four to six years. When Gertner gave him only two and a half years, she turned a run-of-the-mill hearing into a first-of-its-kind race case.

Federal judges do not depart casually from the mandatory federal sentencing guidelines, if ever. After all, the guidelines were created to inject fairness into the criminal-justice system by denying judges personal discretion to perpetuate well-documented discrepancies in sentencing. The complex mathematical formula imposed by the guidelines constrains both sympathy and bias, producing uniformity. What, then, was Gertner thinking?

According to her written decision, she thought that a mechanistic application of the sentencing guidelines would overstate the seriousness of Leviner’s previous convictions. Moreover, Gertner wondered if Leviner’s history of traffic stops, aggressive prosecutions thereof and stiff sentences said more about his race than his propensity for committing future crimes. In effect, the judge told stories.

By that I mean she used the guidelines to tease out questions concerning context and experience. Why, for example, did police on seven different occasions stop a motorist who wasn’t driving erratically? Why did the district attorney consistently choose to prosecute the minor offense of driving with a suspended license so vigorously? Why would judges regularly sentence Leviner to more than a minimum 30 days in jail, a threshold that automatically counts toward triggering the sentencing guidelines? Where is Leviner’s penchant for violence that demands that he be condemned for years to a federal penitentiary? Rather than being a lousy driver, maybe Leviner is a man unable to be seen for who he is.

These are stories black people and Latinos have been telling each other--and to anyone who would listen--for years. Rep. John Conyers Jr. (D-Mich.) has cited reports showing that though blacks comprise only 14% of the U.S. population, they represent 72% of drivers pulled over in routine traffic stops. This pattern has been labeled “DWB” (Driving While Black), and the consequences are unshakable. Citing these findings, as well as a growing academic literature, Gertner wrote that “motor vehicle offenses, in particular, raise deep concerns about racial disparity.”

Before antiliberal alarms go off, remember that it was a white federal judge who first questioned the sentencing rules, in a Los Angeles case that went all the way to the Supreme Court. Race was an issue in that one from the start.

The case was United States vs. Koon, and the black motorist involved was Rodney G. King. The principal defendants, Stacey C. Koon and Laurence M. Powell, were white police officers. When sentencing the officers, U.S. District Judge John G. Davies told a story of provocation to justify his downward departure from the sentencing guidelines. The judge reasoned that King’s illegal conduct--high-speed driving while drunk--set off the entire chain of events that led to the denial of his civil rights--a violent beating--by the police. Such a provocation amounted to “unique circumstances” not covered by the guidelines, which Davis used to decrease Koon’s and Powell’s sentences accordingly, from the required range of five and a half to seven years to two and a half years. The Supreme Court agreed.

The problem with such storytelling, however, is where the storyteller starts. Both Davies and Gertner stretched the lens of the guidelines in an effort to see something of the experiences of the defendants they were sentencing to prison. Both even tried to imagine the effect of others’ actions on the defendants: King’s wild behavior that infamous March night in 1991, and the cops’ longtime suspicious suspicions of Leviner.

But the difference between the two judges’ stories can be found in how each examined the larger racial context in which the relevant experiences occurred. Davies’ story of provocation assumes something evil and dangerous about black men behind the wheel. If an unarmed King, prone and bloodied, can justifiably provoke police to beat him mercilessly, we have to also accept the general idea that black men, especially big ones, are generally more dangerous and thus more deserving of a combative approach. But that’s stereotype. Stories like that don’t examine racial context. They simply perpetuate the worst of its unspoken fears.

By contrast, Gertner’s story of Leviner’s behavior behind the wheel focuses on aspects of the racial context in which his convictions occurred and wonders if they matter. This is an expansive view of criminal justice, which some consider risky, even reckless. The evidence isn’t always so obvious, and the potential for abuse is high. But by listening to the DWB stories that many black motorists tell and reading statistics, Gertner tried to make sense of Leviner as a person and as a future criminal. “Surely the studies,” she wrote, “raise questions about what drew the officers’ attention to Leviner in the first place.”

If black motorists are pulled over more often than others, and if their violations of one kind or another are treated more seriously by prosecutors, and if judges then sentence them more harshly than others similarly guilty, well, another harsh sentence based on those built-in biases merely compounds the injustice.

Gertner looked at Leviner and saw a man who “has had a consistent employment record. He is a trained asbestos-removal worker, regularly employed over the last 10 years. Moreover, he was raised in a stable family situation, and has maintained close ties with his extended family and his children.” But she found that “Leviner, for whatever reasons, had obviously begun to hurtle out of control, in a way that was distinctly different from anything he had done in the past.”

We might question part of this story, too. We may not want federal judges making subjective decisions about whether we are good family folks deserving of a break, or pretending they know the true details of our mental states. They are, after all, judges, not psychologists.

But judges have an enormous power to determine a person’s status, as well as the freedom that goes with it. Although the Leviner and Koon cases are distinguishable--the former involving a felon with a criminal history, the latter police officers never before charged with a crime--both raise important questions about how judges mete out fairness in a society where race, ethnicity and class still carry defining weight.

In boldly trying to strike a humane balance, Gertner did not condone what Leviner did. Two and a half years is still a long time behind bars. But she reminded us that justice often has many layers, few of which are easily reduced to mere points on a grid.