Race, Crime, and the Law.

• Author: Skolnick, Jerome H.

Race, Crime, and the Law. By Randall Kennedy. New York: Pantheon Books. 1997. Pp. 538. $30.

If "the color line," (in W.E.B. Du Bois's 1903 phrase and prophecy)(1) was to be the twentieth century's greatest challenge for the domestic life and public policy of the United States, the law has had much to do with drawing its shape. No surprise, this. By now, legal theorists accept that law does not advance in preordained fashion, immune from the sway of political interest, belief systems and social structure. Still, it is hard to exaggerate how powerfully the law has shaped the life chances of Americans of African heritage, for good or ill, and in ways that we scarcely think of today.

The act of interracial marrying, for example, does not today evoke visions of criminality, although it once did. Thirty-nine states -- including states in the North and West -- had at one time passed laws forbidding intermarriage between persons of different race.(2) Many of these laws were still in effect following World War II.(3) If a black man had married a white woman in Virginia in 1966 the marriage would have been void ab initio, and they would each have been guilty of a felony. Loving v. Virginia,(4) the 1967 case that freed interracial couples to marry, is only a footnote in Randall Kennedy's Race, Crime and the Law, but that is understandable.

The anti-miscegenation laws arose out of racial theories asserting that the children of "mixed" marriages would be defective. In one respect, these laws were often breached in practice. Black women were taken or raped regularly by white men who were rarely, if ever, punished (p. 35). Such children were sired in uncounted numbers, and then denoted as "Negro." The laws criminalizing intermarriage thus delegitimatized the offspring of relations between white men and black women so that they could not inherit their father's property. In another respect, the laws were rigorously enforced to prevent black men from having consensual sex with white women under any circumstances, including marriage. These laws implied that no rational, adult, white woman would agree to have sex with a black man. Any breaking of the sex-color line taboo between a black man and a white woman could be -- and in the peculiar logic of the deep South should be -- considered the moral equivalent of rape, even if blessed by the sacrament of marriage.

In the context of such racial theorizing, accusations of rape against black men made by white women were rarely disbelieved. Such accusations were likely to draw the unbridled viciousness of white vigilantes, who remained unpunished for the crimes they committed while carrying out lynchings -- which often included whipping, torturing, burning, and eventually hanging the victim -- the "strange fruit" of Lillian Smith's acclaimed novel.(5) Southern court records show that when a black man was accused of murdering a white man, he was usually not lynched, but was given a trial and, if found guilty, capitally punished.(6) The accusation of rape, by contrast, was more likely to evoke the hot-blooded savagery of a lynching.

The institutions of southern justice -- police and courts -- typically ignored the crimes committed by those participating in the lynching. Southern blacks passed around stories, which became legends, about sex, terror, and the meaninglessness of the official legal order. Lynching maintained the caste superiority of whites and the bloody etiquette of cross-racial sex, and it undermined any trust Americans of African descent might have had in the legal order. "Nothing has more nourished dreams of racial revenge," Randall Kennedy, a former law clerk to Justice Thurgood Marshall and a Professor at Harvard Law School, writes, "than the knowledge that buried in American history are scores of black victims of lynching whose murderers, though known, escaped punishment" (p. 49).

NO RACE-BASED LAW ENFORCEMENT

This ignominious history of legal theory and practice is a necessary preamble to any understanding of race and crime in America today. For this reason, one has to wonder whether America is now ready for the message throughout Randall Kennedy's recent book Race, Crime, and the Law -- that in enforcing the criminal laws, the courts and the police should never base their judgments and actions on race.

Kennedy's position is scarcely that of a reflexive radical on the complex and polarizing issue of contemporary race and crime. He discusses and deplores how African Americans are doubly victimized by crime and argues that "the principal injury suffered by African Americans in relation to criminal matters is not overenforcement but underenforcement of the laws.(7) Randall Kennedy, like Jesse Jackson, recognizes that disproportionate black criminality leads to understandable fears among potential victims, whether black or white. And like his mentor, Justice Marshall, he does not excuse "thuggery" when perpetrated by blacks. Kennedy's fair-mindedness concerning race and crime is further illustrated when, in discussing the now-mythic beating of Rodney King, a black victim of white police, Kennedy points out that the case was more complicated than is generally acknowledged by those familiar only with the portion of the videotape shown on television. At the Simi Valley trial, defense attorneys focussed the jug's attention on King's behavior leading to the beating. He was, after all, drunk, driving at high speed, and resisting arrest. Some use of escalated force was probably justified against him, although not the fifty-six powerful blows that were actually inflicted. At the Simi Valley trial, Kennedy reminds us, defense attorneys were able to point to subtleties that clouded the issue of whether the police harbored racist intent.

Kennedy unfolds his thesis -- that the courts and the police should never base their judgments and actions on race -- in discussions of five major issues: (1) the use of race as an indicator of suspiciousness; (2) the use of race-based peremptory challenges; (3) the death penalty; (4) race-based jury nullification; and (5) race-based disparity in punishment.

THE PROPRIETY OF RACE AS AN INDICATION OF SUSPICIOUSNESS

Kennedy devotes a significant portion of his book to a related issue, but one more subtle than police brutality. "By too easily permitting the police to use race as an indicia of suspiciousness," he writes, "courts also derogate from the idea that individuals should be judged on the basis of their own, particular conduct and not on the basis -- not even partly on the basis -- of racial generalizations (p. 157). He asserts that it is...