Book Review — Race, Crime and the Law

This is a book review I wrote for the Boston University Public Interest Law Journal. The book review (of Randall Kennedy's book "Race, Crime and the Law") was published in 1998.

Boston University Public Interest Law Journal
Winter 1998
Book Review
*173 RACE, CRIME AND THE LAW
Randall Kennedy
Pantheon Books, 1997
Keith O. Boykin [FNa1]

Copyright © 1998 Trustees of Boston University; Keith O. Boykin

In his book Speaking Frankly, Congressman Barney Frank writes, "Whenever something is obvious and has a significant impact on people's lives, those who try to make believe it does not exist cede control of the debate to those who are willing to talk about it." [FN1] In Race, Crime and the Law, Randall Kennedy proves Frank's point, attempting to redirect the race debate in criminal law merely by talking about it.

With credentials from every one of the so-called top institutions in our higher educational system, Kennedy is nothing if not credible. The Princeton undergrad went to Yale Law School, to Oxford as a Rhodes Scholar, and to Harvard to become a law professor. One might expect any arrogance in his academic credentials to be tempered by his experience clerking for one of the nation's most caring and sensitive jurists, Supreme Court Justice Thurgood Marshall. Yet this coveted clerkship helped to cap his credentials and made Kennedy the archetype black Ivy League law professor.

Kennedy gleefully defies the stereotypes of what a black legal scholar should say or think. He is not a conservative like Clarence Thomas, but he could hardly be labeled a liberal either. In the simplistic "zero sum" shorthand of a predictable legal rhetoric that disguises itself as "discourse," he is something of an enigma.

Despite his establishment credentials, Kennedy focuses his career on the vexing question of race, while other black credentialed intellectuals often shy away from these issues out of fear of being pigeonholed. Because of this fear, the two extremes - black conservatives and black progressives - dominate the race debate, leaving little room for moderates like Kennedy. Still, Kennedy makes room for himself in the dialogue, with a beautifully written book that offers an enlightening *174 and sometimes challenging view through the cloudy window glass of America's courtrooms.

The thesis of Race, Crime and the Law seems to rest on two misleadingly appealing propositions. First, Kennedy contends that public discourse about race and the law has become too sloppy and predictable, and he uses this position to challenge liberals who pull out the "race card" too quickly or with inadequate research and thought. Second, he argues that American criminal law and policy should, to the greatest extent possible, be guided by principles of race-blindness.

Certainly, policy makers and advocates of all political persuasions too glibly and commonly bludgeon one another with disingenuous race-based arguments. Kennedy correctly reminds us that our debates have become "sterile," and he advocates a "proper appreciation for words" and a "proper interpretation of statistics." However, by extending his observation into a critique of progressives, Kennedy's comments run the risk of appearing to be more concerned about the violation of a pedagogic process of semantic purity than about the real need for racial justice. Why should we care if black progressives zealously play their race card when they cannot definitively prove that race is the defining factor for their oppression? Because, according to Kennedy, improper allegations of racism sometimes have the effect of "stiffening the resolve of opponents." He may be right, but they are, after all, opponents.

Kennedy's second argument is seductively attractive. In a society that publicly despises racism and privately continues to practice it, race-blind policies appeal to a simplistic, collective sense of fairness. They provide an imaginary tabula rasa, giving us an easy way to declare the death of racism by fiat and then allow us to start from scratch. To be sure, this is not Kennedy's position. He carefully documents the continuation of racism and prejudice in society and does not fall into the trap of arguing for race-blindness for everything. However, precisely because of his thorough documentation of the continued pervasiveness of race bias, Kennedy's advocacy of race neutrality in some policies such as jury selection seems hopelessly optimistic. We should only seek juries that contain "conscientious people," he argues, and states his belief that racial conflict "can be overcome," in part, by declining to formalize race-mindedness in jury selection. But this argument seems weakened by the current persistence of racism even though race consciousness is not now formalized in the jury selection process.

On their face, both of Kennedy's propositions make sense. We should, of course, choose our words more carefully and we should aspire to a race-blind society. But to establish acontextual, ahistorical, and anal retentive race- blindness is no way to run a legal system.

Structurally, Race, Crime and the Law is well organized and divided into four sections: first to show common ground between various political factions on race issues; second to explain how the history of unequal racial protection is worse than the history of unequal enforcement; third to determine when it is defensible to discriminate racially; and fourth to help determine how to analyze race discrimination in ostensibly race neutral policies.

The first section fails to achieve its own goals. It does not help in "changing the politics of the conflict," as the title indicates, nor does the section create any *175 "common ground," as advertised. In fact, Kennedy seems to make no effort to find common ground as he describes four competing camps in the rhetorical wars (law and order advocates, libertarian conservatives, proponents of color-blind policies, and liberal progressives) and then admittedly aims all his ammunition at the weakest camp - the progressives.

In analyzing the beneficiaries of policies that protect black criminals and defendants, Kennedy creates a false distinction between law-abiding black citizens and a black criminal class. " [C]ourts should be careful to avoid conflating the interests of a subdivision of blacks - black suspects, defendants, or convicts - with the interests of blacks as a whole," he writes. Unfortunately, this argument mistakenly assumes that the larger black society is not harmed by laws and policies that unfairly single out or mistreat black suspects and even criminals. Ironically, he allows conservative Glenn Loury to make the case "that the young black men wreaking havoc in the ghetto are still 'our youngsters' in the eyes of many of the decent poor and working class black people who are often their victims."

Later, Kennedy reveals that for every 100,000 black Americans, 1,860 were in jail or prison as opposed to only 289 for every 100,000 white Americans. Clearly, the loss of a major portion of a generation of black youth is a cognizable harm.

In the second section of his book, Kennedy again mischaracterizes the beneficiaries of racially just criminal policies and the protection of black defendants' civil liberties. Kennedy argues that unequal protection is "worse" than unequal treatment "because it has directly and adversely affected more people than have episodic misjudgments of guilt." Even assuming the questionable premise that the severity of discrimination can be ranked based on quantifiable traits, Kennedy still misses the larger point that misjudgments of guilt stigmatize the entire black race and therefore affect far more people than the specific individuals mistreated.

What he does accomplish in his discussion of the past is to present a compelling story of our nation's shameful history of racial injustice toward blacks. In vivid, painful detail, Kennedy paints picture after picture of horrors perpetrated against blacks. For the uninitiated, these pictures may be the greatest achievement of Race, Crime, and the Law .

In the final two sections of his book, Kennedy provides a serious, sophisticated, and complex analysis of race consciousness and race neutrality. He carefully examines the nuances of using race-based profiling for decisionmaking and evaluates the differing impact when such decisions are made by police, business operators, individuals, and others.

Given the complexity of Kennedy's views, he is not an easy target for progressives or conservatives. He appropriately criticizes the hypocrisy of some advocates of "color-blind" policies and then goes on to advocate his own version of color-blindness. On one page he rightly chastises the scandalous racial bias in the application of capital punishment, but on another page he suggests capital punishment is no big deal. Kennedy even suggests the federal sentencing *176 distinction between crack and powder cocaine may be misguided but then attacks those who call the disparity "racially biased."

Not surprisingly, Kennedy's arguments throughout the book are well supported by examples in the case law that bolster his views. Ultimately, however, the persuasiveness of his book rests not on which side can marshal more facts or cases to its cause but rather to a choice between competing visions of the role of the law in society. Those who view the law as a racially corrupt institution for the perpetuation of the status quo, as many blacks do, will not likely be persuaded.

[FNa1]. Dartmouth College, A.B., 1987; Harvard Law School, J.D., 1992; Former Executive Director, The National Black Lesbian and Gay Leadership Forum.

[FN1] Barney Frank, Speaking Frankly 124 (1992).
END OF DOCUMENT

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