Race, Crime, and the Law. By Randall Kennedy.(*) New York: Pantheon Books, 1997. Pp. xiv, 538. $30.00.
Race, Crime, and the Law(1) surveys a large number of issues at the intersection of race and the criminal law and is both informative and persuasive on many points. Because Professor Kennedy is an obviously talented African-American Harvard Law School professor and because the book is clearly the product of enormous and thorough research, Race, Crime, and the Law will be influential. Nevertheless, the book is disappointing. Professor Kennedy is indignant about the past, ranges from judiciously critical to sanguine about the present, and expresses outrage (in unwarranted terms, in my view) at the work of two African-American writers who propose race-conscious solutions to criminal justice dilemmas. The book comes close to being an apologia for colorblindness, the doctrinal darling of today's Supreme Court, and contains few if any painful truths for the typical white reader. Despite the author's impressive knowledge and abilities, his book is unlikely to challenge common erroneous presuppositions about race and the criminal law and may even leave the uninformed reader with the impression that black partisanship is the most serious racial issue now confronting the criminal justice system. The first time I read Race, Crime, and the Law, it made me angry.(2)
Upon preparing to review the book, I read it a second time, and during the course of that second reading came to feel differently--although not to think differently--about it. This change was brought about by a seemingly unrelated event. Waiting outside my fifth-grade son's classroom, I saw a display of poems. From the titles of the poems it was clear that each child had been asked to choose a color as the subject of his or her poem. Just passing time, I started reading the poems, all pleasant homages to the chosen colors--until I reached the only poem entitled "Black," which read as follows:
Black--it's the shadow of the night,
when you don't separate wrong from right.
When you die, the color's black.
Like when your food is short, in lack.
Black is when you taste rotten bread,
It's also the color of the dead.
Black is when there is no light at all;
When you fall, and fall till there's no you at all.
When you are in the color black,
it's like you are trapped in a very tight sack.
Black is a cat, a raven, a crow,
a chandelier when it's lost its glow.
The color black is a mysterious thing;
a bird, a robin when it loses its wing.
I was suddenly sick and sad, the more so because this was written not by some angry white child from a bigoted family, but by a gentle boy I know--an Asian-American child with educated parents. I then went back and read the poems on the color "White," of which there were four, all joyous. Here is one of these four, also written by an Asian-American boy:
White is a peaceful dove. White is a cloud that
Winter brings snow, and snow brings white.
It is beautiful in a starry white light.
White is a doily and a tablecloth.
A lightbulb and a single star. A baseball, hit afar.
White is bleached leather, white can be a bird's
White is cane sugar, bad for your teeth, white is
honey bread, soft and sweet.
The sound of white is chalk squeaking on a coal
White is the color of an airplane that soars.
White is the color of a tissue from a box,
white is a whisker from a fox.
Reading the "White" poems the second time, I lost all pleasure in them, though I am white. As I stood there, I was both sad and afraid for all the African Americans I love--my sister, my brother, my daughters, my best friend, her children, and one of my death row clients. Then sad and afraid for many more African Americans whom I like, know, and admire. And, finally, sad and afraid for all those African Americans I do not know, but who are nevertheless linked to me through those I do. As I walked away, I realized that I had been angry reading Professor Kennedy's book because it was less painful than being sad and afraid: sad for the lost opportunity this book represents, and afraid for the future if a person of Kennedy's ability and position believes in the mirage of colorblindness.
Already this introduction has deliberately violated, at least in spirit, the two animating principles of Race, Crime, and the Law. Politically, Professor Kennedy embraces what he calls "the politics of respectability."(3) This approach, at least as practiced by Professor Kennedy throughout his book, is a strategic calculus for the advancement of minority groups that places great weight on anticipated white majority perceptions. It consequently urges the distancing of most African Americans from negative stereotypes. It would seem to counsel against both my written acknowledgement: that a death row client is among the list of African Americans I hold dear, and the expression of my debt to two death-sentenced clients in my first footnote. Doctrinally, Professor Kennedy advocates race neutrality, or "responding to persons strictly on the basis of conduct not color."(4) Obviously my references to Professor Kennedy's race, my own race, and the race of the poems' authors suggest that I think race is sometimes relevant in ascribing meaning to conduct; and, as I shall later explore, I also think race is sometimes useful in remedying or preventing wrongful ascriptions of meaning from race.
In its nine substantive chapters, Race, Crime, and the Law covers an enormous amount of territory; two chapters are devoted to the history of race's relationship to criminal law, two to jury selection, one to racial appeals that occur in trials, one to the death penalty, and one to the enforcement of drug laws. Rather than addressing these subjects seriatim, I have organized this Review around the two animating principles described above. Part I attempts to show that Professor Kennedy's politics of respectability not only determines which "liberal" positions and measures he supports, but also shapes the way he chooses to write about them. It then proposes an alternative to Professor Kennedy's politics of respectability. This alternative draws on other, quite different traditions from minority communities, and counsels against strategic abandonment of the most stigmatized African Americans.
Part II first summarizes the "radical" remedial and prophylactic measures Professor Kennedy rejects based upon his doctrinal commitment to race neutrality. I then focus on one proposal of my own that Professor Kennedy criticizes, affirmative jury selection, and dispute Professor Kennedy's argument that race-neutral measures are sufficient safeguards against prejudiced determinations of guilt. With respect to two other scholars' proposals that Professor Kennedy deems irresponsible, I briefly note ways in which his criticism is unfair, given that the prevailing doctrine of race neutrality has cabined the search for solutions to issues of racial fairness by labeling them nonissues. I proceed to sketch what I see as the value--and limits--of race neutrality in the criminal justice system.
Finally, Part III turns to some of the most despised African Americans, death-sentenced defendants, for some harsh truth about colorblindness. I recount the blatant racial issues that arose in the trials of two of my clients and the dismissive treatment those issues have received in the courts. I hope my reader will conclude that fighting such racism with race neutrality is like pouring water on a kitchen fire: It seems like a good idea only if you know nothing about oil.
THE POLITICS OF RESPECTABILITY
In his first paragraph, Professor Kennedy says that he wants to speak to "contending ideological camps about the race question in criminal law and clear space for a shared discussion that will uncover common grounds for action."(5) As I explore in Part II, the common ground that he proposes to uncover is race neutrality, and he identifies four target groups for this consensus-building discussion: the law-and-order camp, libertarian conservatives, proponents of a colorblind Constitution, and "those dedicated specifically to advancing the interests of blacks."(6) It is intuitively obvious, and Kennedy makes short work of explaining, how he will appeal to the first three groups. From the law-and-order camp, he asks protection for African-American as well as white victims, and he seeks understanding that racist public officials must be made to obey the law lest African Americans resist all cooperation with law enforcement officials.(7) From libertarian conservatives, he asks that their "intolerance for governmental tyranny" include sensitivity to "racial misconduct."(8) From the colorblindness camp, he quite modestly asks for consistent application of colorblind principles in the criminal justice sphere.(9)
Professor Kennedy's Argument for a Politics of Respectability
The more difficult question is why "those dedicated specifically to advancing the interests of blacks" should be attracted to race neutrality in the criminal justice sphere. It is not entirely clear whom this camp is intended to encompass, but Kennedy mentions Jesse Jackson, the NAACP, and the Congressional Black Caucus.(10) By its literal definition, this group would certainly include me, and one might assume that it would include Professor Kennedy himself; but apparently it does not. Although Kennedy "embrace[s] this camp's admirable labors on behalf of America's paradigmatic social pariah, the Negro,"(11) he describes the group as "largely marooned on the left end of the American political spectrum,"(12) and feels the need to defend to his reader the decision to "allocate considerable space and energy to critical engagement"(13) of this camp, a defense that he bases upon its "considerable influence within African-American communities."(14) In the introductory chapter alone he accuses this camp of "all too often mak[ing] formulaic allegations of...