Randall Kennedy Examines
The Embattled Crossroads
of
Race and Justice


With the publication in May of his new book, Race, Crime, and the Law (Pantheon Books, 1997), Professor Kennedy has brought invigorating ideas and legal analysis to national discussions about race relations and criminal justice. The book has been widely reviewed, in the New York Times Book Review, the Los Angeles Times, and elsewhere; and Kennedy has been a guest on "The Today Show," "Nightly News with Tom Brokaw," and the National Public Radio shows "Fresh Air" and "The Connection." The Bulletin asked several of Kennedy’s colleagues to comment on chapters that particularly interested them.

Suspicion


In the fourth chapter of Race, Crime, and the Law, Professor Kennedy discusses the use of race as a factor to identify persons who are, in the circumstances, more likely to be engaged in criminal conduct. For practical purposes, that has meant largely black males, either because they are in a generally nonblack neighborhood or because they fit a profile for some category of crime. (As he points out, if a white person is "out of place," a police officer may conclude not that he is dangerous but that he is in danger and needs help.)

Professor Kennedy separates the statistical basis for race-related heightened suspicion from the policy that authorizes public o¤cials to act on the suspicion. The former he acknowledges as a matter of fact: "blacks, particularly young black men, commit a percentage of the nation’s street crime that is strikingly disproportionate to their percentage in the nation’s population" (p. 145). The policy, however, he rejects except in the narrowest circumstances, which satisfy the standard of a compelling public interest. His argument is entirely convincing.

He exposes the indignity and humiliation of being subjected to police investigative tactics, which are rarely respectful and often forceful and threatening. The extent of such occurrences is attested repeatedly by persons whose own conduct gave no basis whatever for suspicion. Each such occurrence, Professor Kennedy observes, exacerbates the di¤cult relationship between minorities and the police. More generally, racially discriminatory law enforcement, however it is explained, impedes other strong public policies by reinforcing stereotypes that we are committed to eradicate.

From RACE, CRIME, AND THE LAW
"This effort to reorient thinking about the race question in criminal law is animated by a sense that inherited debates between liberals and conservatives have become increasingly sterile. It is also animated by a belief that useful prescriptions for problems as complex as those generated by the imperatives of law enforcement in our large, rambunctious, multiracial society can arise only from thinking that frees itself of reflexive obedience to familiar signals."

Reprinted with permission from Pantheon Books.

Professor Kennedy notes that in other aspects of public life, including some in which race has been used as a factor favoring minorities, the Supreme Court has sharply distinguished the policy in question from the facts on which it is based. The comparison makes his insistence that reliance on race as an element in law enforcement is not a simple matter of fact but a choice, and one that disserves the polity, all the more pointed.

- Professor Lloyd Weinreb ’62

The Death Penalty


Few subjects have inspired as much passionate prose as the death penalty. Some classics have emerged, like Albert Camus’ moving Reflections on the Guillotine. But, alas, much muddled thinking has also resulted. Chapter 9 of Randall Kennedy’s Race, Crime, and the Law, entitled "Race, Law, and Punishment: The Death Penalty," is a refreshingly clear-headed, precise, and even-handed treatment of this di¤cult subject and its disquieting intersection with racial injustice in the United States. Kennedy is tremendously e›ective in elucidating the historical impact of race on capital sentencing, addressing both the recent but easily forgotten history of interracial rape prosecutions and the more current controversy regarding the disproportionate imposition of the death penalty on those who murder whites rather than blacks. But despite the discriminatory abuses of capital punishment that he depicts, Kennedy resists the easy answer of single-minded support for the movement to abolish the death penalty. Even as he criticizes supporters of capital punishment for being unwilling to confront its racist applications, Kennedy chastises death penalty abolitionists for being insensitive to the fact that legislative majorities overwhelmingly view the death penalty as a social good. Ultimately, he calls for greater honesty and forbearance on both sides of this contentious issue.

Full of wit, style, and irreverence, this book will actually be read all the way through rather than collect dust on academic shelves. For example, in discussing his own personal views on the constitutionality of the death penalty, Kennedy candidly admits that clerking for the great abolitionist Justice Thurgood Marshall led him to question his own abolitionist leanings as he read the gruesome details of the crimes of murderers sentenced to death. And in explaining why abolition of the death penalty is not necessarily the proper remedy for race-of-the-victim disproportion in capital sentencing, Kennedy o›ers the unforgettable analogy of reducing to darkness a town in which streetlights have been provided on a racially unequal basis. Bracingly iconoclastic and eminently quotable, Kennedy’s book will clearly prove to be indispensable in future debates about capital punishment.

- Assistant Professor Carol Steiker ’86

O. J.


In his otherwise excellent book on race and justice, my colleague Randy Kennedy makes a number of telling mistakes in his discussion of the O. J. Simpson case. He says that, "Judge Ito ruled wrongly in initially permitting the defense to examine Fuhrman on his use of the N word." In support of this conclusion, Randy cites "the applicable rules of evidence," which permit "questions going to Fuhrman’s credibility," but then argues that the relationship between Fuhrman’s racism and credibility is too tenuous to permit introduction of his racist comments. But trial judges make decisions on the basis of the governing case law, not on the basis of some general principles of evidence approved by professors. And there is a California case that ruled specifically that racial bias is directly relevant on issues of credibility. Following that case, Judge Ito made the right decision.

Surprisingly, Randy also is wrong when he says that, "Judge Ito permitted the Fuhrman tape to be played in its entirety in court, albeit outside the presence of the jury." That simply never happened. Indeed, to my knowledge, the entire tape has never been played in public to this day. I have urged various television and radio shows to play the entire Fuhrman tape so that the extent of his anti-black, anti-women, anti-Mexican, and anti-Jewish bigotry might be known. But in the absence of a pending trial, the Fuhrman tapes are no longer relevant news. So Randy is also wrong when he suggests that Judge Ito could have satisfied the public interest in Fuhrman’s bigotry, "by releasing the tapes after a verdict."

So much of the discussion about the Simpson case has been based on misinformation that it is important for an objective scholar—which Randy Kennedy surely is—to get it right. On the larger issues of race and justice, I tend to agree with much of what Randy has written.

- Professor Alan Dershowitz

Interview with Randall Kennedy
Bulletin: Is your book relevant to President Clinton’s discussions on race relations?

Kennedy: Yes. There is no more volatile area in race relations than that contested crossroads that marks the intersection of racial conflict and the rules governing the administration of criminal law.

What might you do differently if you were starting to write Race, Crime, and the Law today?

I should have devoted more attention to prisons. I discuss prisons to some extent. Given their unfortunate significance in American society, particularly African American society, I should have had a more elaborate analysis of their functions and failings.

Why have you chosen to present much of your work in magazines such as the Atlantic Monthly rather than in law reviews, and in trade books rather than university press books?

I write for a wide variety of forums, purely academic publications as well as publications for the general reader. I do this in order to reach as wide an audience as possible. I enjoy and learn from the feedback I receive from academic peers. But I also enjoy and receive useful instruction from the proverbial John Q. Citizen.


Compiled by Nancy Waring