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From Scottsboro to Simpson

RACE, CRIME, AND THE LAW.\o7 By Randall Kennedy\f7 .\o7 Pantheon: 624 pp., $30\f7

June 01, 1997|EDWARD LAZARUS | Edward Lazarus is the author of a forthcoming study of the modern Supreme Court, to be published by Times Books

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.

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