Race, Crime, and the Law.

RACE, Crime, and the Law discusses the influence of race, both historically -- it includes a history of slavery and lynching -- and at present, in the formulation and enforcement of criminal law. Randall Kennedy, a professor at the Harvard Law School, shows that race has permeated every area of criminal law, as it has, indeed, every area of constitutional law.

Kennedy, a moderate on race issues, at least in comparison with other black law professors, strives for balance and fairness throughout. Unfortunately, he largely shares the basic premises of the more radical scholars he criticizes. He believes, as they do, that "racial animus against blacks still strongly grips American society," giving the nation a "deformed social structure." He also agrees with them that oppression and discrimination are the defining facts of the black situation in America; for example, he finds it "difficult to exaggerate the importance of lynching in the development of African-American political consciousness."

Kennedy deplores "the prevalence and prominence of pessimistic thinking about race questions in American life" and believes (unlike Carl Rowan) that "racial conflict is not inevitable." His reiteration of the themes of continuing white hostility and black focus on past mistreatment is difficult to reconcile, how- ever, with the message of optimism he means to convey. It would be more help- ful, as well as more accurate, to point out that most whites welcome black success and that today's blacks are not prisoners of our racial history.

If there are grounds for optimism on race issues in Kennedy's book, they lie in the fact that the instances he cites of racial discrimination in the criminal-justice system seem, with one exception, relatively minor. One of Kennedy's principal complaints is that a recent Supreme Court decision prohibiting prosecutors from considering race in exercising peremptory chal- lenges of prospective jurors is not, in his view, being sufficiently enforced. Since the whole point of peremptory challenges is the absence of a need to show cause, the decision is highly questionable. It might be better, as Ken- nedy notes, if the peremptory challenge were abolished. But if it is retained, he argues, the prohibition against considering race, however incongruous or impractical, must be rigorously enforced. The principal effects of the prohibition, however, have been still longer and more complex trials, more appeals, and more reversals of convictions regardless of guilt. Its contribu- tion to racial equality, if any, does not seem proportionate to its damage to effective enforcement of the criminal law.

Kennedy claims that there is "credible evidence that racial discrimination plays an on-going and large (though difficult to isolate) role in the alloca- tion of capital punishment." The claim is not the traditional one of dis- crimination against black offenders, but rather one of discrimination on the basis of the race of the victim: the idea that a murderer of any race is more likely to be executed if the victim is white than if he is black. The extremely limited use of capital punishment, due to restrictions imposed by the Supreme Court at the urging of the ACLU and the NAACP -- for example, jurors must not be allowed either too much or too little discretion -- makes statistical comparisons debatable. In any event, the answer to the problem, if any, should probably be not to place further restrictions on capital punish- ment, as Kennedy favors, but to make it more readily available.

It is difficult to know what to make of Kennedy's complaint that "authorities should be candid" in discussing our racial past -- for example, "the facts behind lynching and the failure to address it." How more and more detailed discussions of lynching, which virtually ended half a century ago, can con- tribute to solving today's racial problems is not easy to see.

By far the most substantial of Kennedy's complaints is the serious and intractable problem of the appropriate use of race by law-enforcement authorities in the prevention and investigation of criminal activity. For example, may narcotics officers at airports use race as a factor in deciding whom to stop and question? Kennedy argues that they may not, even if a black is more likely than a white to be a crack courier. He criticizes the state- ment, by a court of appeals which upheld such stops, that "facts are not to be ignored simply because they may be unpleasant." The court "seems to believe," Kennedy objects, "that facts dictate the way the legal order should respond. This is erroneous."

Kennedy is similarly critical of a Supreme Court decision holding that Border Patrol officers policing the United States-Mexico border may consider apparent Mexican ancestry in deciding which cars to stop for brief questioning. The Court noted that the stops were minimally intrusive but highly effective, in that about 20 per cent of the cars stopped were found to be transporting illegal aliens. Further, less than 1 per cent of all cars were stopped even though probably more than 15 per cent were transporting persons of Mexican ancestry. Kennedy finds it puzzling that these stops should be upheld by a Court that "has been exquisitely sensitive to charges that affirmative action unfairly burdens innocent whites."

It would undoubtedly be news to the many victims of the racial-preference programs upheld by the Court that the Court has been exceptionally sensitive to their interests. More important, race is not ordinarily a relevant qualification for employment or educational opportunities; it could hardly be more relevant to the enterprise of preventing illegal immigration from Mexico. Kennedy is correct that mere facts cannot "dictate" the law's response to a problem. The facts do, however, determine which responses are likely to be effective in correcting the problem, if that should be what the lawmaker is seriously trying to accomplish.

Kennedy recognizes that "a disproportionately large share of the nation's street crimes -- robberies, rapes, murders, aggravated assaults -- are per- petrated by . . . young black men." He nonetheless recommends, unrealistically if not impossibly, that law-enforcement authorities be required to act as if they were not cognizant of this fact. To do otherwise, he warns, may cause some blacks to feel "a bitterness and thirst for revenge that should alarm all Americans." He quotes a writer's statement that "my black Ivy League friends and I" have "infinite" contempt for American values and institutions and are "cynically . . . waiting for some as-yet-unidentified apocalypse that will enable us to slay the white dragon, even as we work for it, live next to it, and sleep with it." It appears that we indeed have much to fear, but it does not seem likely that so violent a hatred for American society from those who would seem to be among its most advantaged members springs from enforcement of the criminal law. An alternative explanation is that it reflects the resent- ment and frustration that inevitably result from the "affirmative action" programs that have placed most of the blacks currently enrolled in selective institutions of higher education.

Kennedy is undoubtedly correct that it is a disadvantage to be black in terms of law enforcement. But it is also a disadvantage to be a young male in terms of automobile-insurance rates. The law necessarily categorizes; the issue is whether the disadvantages of a categorization (rule) are outweighed by its usefulness; and little is more valuable to all citizens, black at least as much as white, than the effective enforcement of criminal law.

That Kennedy is a moderate in legal academia is illustrated by considering his objections to the views of Paul Butler, a graduate of Harvard Law School, and a professor at George Washington Law School. Butler published an article in the Yale Law Journal, legal academia's most prestigious publication, arguing that the nation's mistreatment of blacks absolves them from a moral duty to obey the law. The nation, he teaches his students, "has betrayed African Americans far more than they ever could betray it," and "the African-American criminal would not be a criminal" except for our racist society. It is there- fore "the moral responsibility of black jurors to emancipate some guilty black outlaws." Accordingly, Butler "danced my freedom dance along with my sisters and brothers all over the world" when O. J. Simpson was acquitted.

Kennedy agrees with Butler that "racial discrimination remains a large and baleful presence in the criminal-justice system," as is shown by the law's allowing "police officers to take race into account in making determinations of suspicion," but he does not believe that racial problems are "as large, immutable, or one-dimensional as Butler suggests." He effectively refutes But- ler's position on the grounds that it assumes blacks are incapable of acting as moral agents responsible for their actions, that it is not likely to improve the position of blacks in American society, and that returning unpunished black criminals to black communities is hardly in the interest of blacks, an overwhelming majority of whom believe the courts should treat criminals more harshly.

Kennedy is to be commended for his refutation of Butler, but it is hardly encouraging that Butler's views are respectable enough in legal academia -- indeed, Butler is probably more representative than Kennedy of black law professors -- to require refutation. Despite its relative moderation, the net effect of Kennedy's book is to emphasize, if not exaggerate, the prevalence and importance of racial discrimination in American society. This is probably not the best route to the racial reconciliation that he seeks.