Eyal Press

The Color Test

October 1st, 2000

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EARLY LAST YEAR, ROUGHLY TWO HUNDRED PEOPLE CRAMMED into a third-floor conference room at the Open Society Institute in Manhattan to hear Professors David Cole and Randall Kennedy debate the issues of race, crime, and justice. The debate was timed to coincide with the publication of Cole’s book No Equal Justice (New Press), a searing indictment of the racial inequities in the legal system. What lent the occasion drama, however, was a less fortunate coincidence: Three weeks earlier, four New York City police officers fired forty-one bullets at an unarmed West African immigrant, Amadou Diallo, while he was standing in the vestibule of his Bronx apartment building.

The killing of Diallo, and the escalating clamor over police misconduct, have made the role of race in the administration of criminal justice one of America’s most volatile social issues. Cities across the country have watched crime drop dramatically in recent years – and seen prison rolls rise just as dramatically. At the same time, practices such as racial profiling and zero-tolerance policing have raised some unsettling questions: Has the reduction in crime come at too great a cost in liberty? And to what degree does race determine whose liberties are violated?

To a great degree, argues David Cole. “We are administering a criminal justice system that is deeply unfair and that indeed depends on being unfair,” he declared at the start of the debate. According to Cole, however, the central issue is not, as many critics would have it, intentional discrimination. After all, most courts have, in recent decades, banned the explicit use of race in legal proceedings. Rather, there is a deeper and more insidious problem: “Constitutional rights are all formally equal on their surface, but their deep structure is to exploit inequality,” said Cole, a soft-spoken man whose calm, measured voice is belied by the force of his arguments. Thus, although the Constitution bars the police from arresting people on the basis of race, he explained, the courts have vastly broadened the police’s discretion to stop and arrest virtually anyone they please. Society has been willing to grant police such sweeping discretionary power, Cole argues in No Equal Justice – one of the most unsparing, and

lavishly praised, books on the criminal justice system to appear in recent memory – only because the burdens fall almost exclusively on impoverished and minority communities.

But has cracking down on crime been uniformly damaging to these communities? Hardly, countered Cole’s debating opponent, Randall Kennedy. “When we talk about inequality in the administration of criminal justice, many people think immediately – and often exclusively – of the black suspect, the black defendant, the black convict,” said Kennedy. “There is one actor, however, that is often quite marginalized…and that was marginalized in Professor Cole’s opening statement.” He paused. “That actor is the black victim.”

Historically, Kennedy observed, African Americans have suffered as much or more from the underenforcement of the law – that is, the refusal of authorities to punish those who victimize blacks – as from its overenforcement. It’s a point Kennedy stresses in his own critically acclaimed book, Race, Crime, and the Law (Vintage, 1997), and one he believes should inform any assessment of recent efforts to clamp down on inner-city violence. Kennedy, who is African American, points out that many people in the black community have long complained about inadequate police protection. “Police brutality is of course a terrible thing,” he said in the debate with Cole, “but blacks at every income level are also more likely to be murdered, raped, burgled, assaulted.” And because the vast majority of crime is intraracial – that is, either white on white or black on black – policies that disproportionately burden black offenders disproportionately benefit black victims, leading to a paradox. “If you put the question of black victimization at the center,” Kennedy explained, “protecting minority communities from crime may mean putting more minority criminals in jail.” The room fell silent.

Cole and Kennedy are longtime sparring partners who have debated these issues both in print and in person and who seem to relish their confrontations. Ironically, however, the two law professors are in many ways kindred spirits. Both share a deep belief that racial disparities remain far too common. Both are public intellectuals who write as frequently in popular as in academic venues, and their views have shaped not only the scholarly debate but also the decisions of courts and legislatures.

Where they differ is in weighing liberty against security to determine which actors, and which rights, are in greatest need of protection. To Cole, the fact that over one million African Americans are today in prison (seven times the incarceration rate for whites), and that minorities are routinely stopped and arrested under dubious pretexts, shows that we have adopted a set of punitive policies that would never be accepted were they evenly administered. But as Kennedy sees it, our central concern should be the treatment not of minority suspects but of their victims. These differences have led Cole and Kennedy to quarrel over everything from the impact of the drug war to the legal standards courts should use to redress discrimination – and have produced a dialogue of unusual depth between two highly provocative scholars.

COLE AND KENNEDY have known each other since the early 1980s, when they were classmates at Yale Law School, where Cole says he spent three years thinking he would become anything but a law professor.

“Law was not my calling,” Cole confessed as we sat down for lunch in a faculty lounge at the Georgetown Law Center, where he now teaches. As an undergraduate at Yale, says Cole, “Forget contracts – I took Keats and Shelley. I took a yearlong course on Freud and spent much of my time writing film and music criticism for the Yale Daily News. I was planning to be a writer or a critic, not a law professor.”

After completing his undergraduate degree in literature, Cole also seriously considered taking a job in the financial world. “Back in high school I’d kind of gotten obsessed with the stock market,” he recalls, chuckling. “I had this high school friend who was an options trader in Chicago. He offered me a job, and I thought, Why not? I’ll go do that and freelance on the side.”

“If I’d have taken the job, I’d be a multi-multi-millionaire by now.”

What changed Cole’s life – and sparked his interest not only in the law but in issues of civil rights and equality – was a summer internship at the New Yorkñbased Center for Constitutional Rights (CCR), a progressive nonprofit that specializes in human rights litigation. “That politicized me more than anything else,” he said. “It was a very radical place…. I was one of the only white males there, and I started working on all these international human rights cases.”

After landing a paid job at CCR, Cole got to know the legendary William Kunstler, the wild-haired radical attorney with whom he worked on the famous 1990 Supreme Court flag-burning case, United States v. Eichman. Though Kunstler insisted on arguing the case, it was Cole, who had not yet turned thirty, who wrote the briefs that convinced the Court to overturn the 1989 Flag Protection Act. His work on this case landed him a laudatory profile in the New York Times At the Bar column and prompted an opposing lawyer from the solicitor general’s office to comment that Cole’s brief was the best he’d ever read.

With his curly brown hair, boyish face, and casual attire, Cole still does not look the part of the typical law professor. He is tall and slender, with the long arms and lanky frame of a swimmer (a sport he lettered in as an undergraduate), and he has a distinctly humble manner. You would never know, from meeting him, that Cole is not only a prolific scholar, having published two books and dozens of prominent law review articles, but also one of the nation’s preeminent civil rights attorneys. During the past decade, he has litigated a dizzying array of high-profile cases, from Finley v. National Endowment for the Arts, where he defended the four artists accused of violating the NEA’s “decency” standard, to Massachusetts v. Secretary of Health and Human Services, where he helped strike down a regulation prohibiting federally funded clinics from counseling women about abortion, to American-Arab Anti-Discrimination Committee v. Reno, one of numerous cases where Cole has defended Arab immigrants against controversial antiterrorism laws that curtail civil liberties. Somehow, Cole also manages to write a column for Legal Times, serve as the legal affairs correspondent for The Nation, and speak regularly on National Public Radio. After lunch, as we approached his fourth-floor office, a narrow alcove submerged in a sea of documents from the various cases he was litigating, I asked Cole how he managed to keep everything together. “I don’t spend much time filing,” he quipped.

IF COLE’s schedule was fast-paced before, it became a veritable whirlwind with the publication of No Equal Justice. “There was a long stretch – a good two months after the book came out – where I was doing at least one radio show a day on the book,” he says. “It was just unbelievable.”

It was, however, hardly surprising. No Equal Justice appeared in February 1999, the month of the Diallo shooting and two months before the start of the Abner Louima trial, a case involving a Haitian man who was brutally beaten and sodomized with a toilet plunger by two New York City police officers. Around the same time, the New Jersey attorney general’s office released a report acknowledging that state troopers engaged in racial profiling, a problem that has surfaced in Maryland, Florida, and numerous other states. A few months later, Columbia University’s Center for Violence Research & Prevention, in conjunction with the New York attorney general, published a study showing that over a fifteen-month period in New York City, blacks were 2.1 times more likely (and Hispanics 1.7 times more likely) to be stopped and frisked than whites – even when controlling for higher crime rates in minority neighborhoods.

The flood of bad news proved perversely beneficial to Cole. “When my book came out,” he explained, “New York was being touted everywhere as the great crime miracle. Broken windows” – the theory that arresting petty criminals for low-level quality-of-life infractions would have a large deterrent effect on serious crime – “had supposedly solved the crime problem. Now I think the common perception is that the New York approach has come at a tremendous cost in terms of rights.”

“Similarly with racial profiling,” added Cole. “Five years ago, I don’t think anybody outside the black community was conscious of the phenomenon of ëdriving while black.’ Today, the latest polls are finding that 80 percent of Americans believe racial profiling is wrong, and around 60 percent believe it is widespread…. There has been a tremendous sea change in a relatively short period of time.”

What there has not been, Cole believes, is an understanding of how racial inequality is structurally ingrained in the legal system. “The root of the problem,” wrote Brent Staples in a March 12 New York Times op-ed, “is the tendency of white police officers – and white Americans generally – to associate blackness with criminality in the absence of any substantiating evidence.” It’s a common assessment, yet a misguided one, Cole believes. The real root of the problem, he argues, is less the prejudice of police officers than a series of little-noted Supreme Court rulings that have eviscerated the Fourth Amendment (which protects citizens from unreasonable search and seizure) and empowered the police to arrest people without any objective, individualized basis for suspicion.

In Whren v. United States (1996), for example, Cole notes that the Supreme Court granted officers the right to use any traffic violation as a pretext for stopping a driver even if they have no intention of enforcing a traffic law. In a 1991 decision, the Court ruled that the police may search passengers’ bags in so-called bus sweeps without establishing any individualized basis for suspicion. In an earlier ruling, Terry v. Ohio (1968), the Court determined that officers may stop people on the basis of “reasonable suspicion,” a doctrine significantly vaguer than the “probable cause” standard previously demanded.

None of these decisions allows the police to arrest someone on the basis of his or her race, Cole notes. What they do is grant law enforcement so much discretion that cops can stop virtually anyone for any reason, thus inviting racial profiling. Reviewing federal court cases involving drug stops at airports, Cole found that courts accepted the following justifications: Suspect walked quickly through airport; suspect walked slowly through airport; suspect carried no luggage; suspect carried brand-new luggage; suspect traveled alone; suspect traveled with a companion. In over 90 percent of these cases, the suspect also happened to be black or Hispanic.

To Cole, that such patterns do not appear racially motivated makes them all the more insidious. Societies, he notes in No Equal Justice, aim to balance two competing interests in devising crime policy – liberty and security. Liberals and conservatives might disagree on where to draw the line, “but both sides agree, at least in principle, that the line should be drawn in the same place for everyone.” America, however, has mediated the tension between liberty and security “not by picking one point on the continuum, but in effect by picking two points – one for the more privileged and educated, the other for the poor and less educated,” writes Cole.

All of which leads Cole to conclude that in order to address inequality, we need to go much further than simply eliminating open, intentional racism. “I take issue with those, like Professor Randall Kennedy, who argue that as long as we can rid the system of explicit or intentional considerations of race, we will have solved the problem,” he writes. To reduce the problem to such instances “is to ignore the lion’s share of inequality that pervades the criminal justice system today.”

IN FACT, as Cole is well aware, Randall Kennedy is a staunch critic of racial profiling. In Race, Crime, and the Law, Kennedy argues that although it may be “reasonable” for police officers to be more suspicious of minorities (due to higher rates of some forms of criminal conduct), such suspicion is incompatible with the ideal of creating a color-blind society. Kennedy’s criticism of racial profiling focuses on those cases where courts have sanctioned the explicit use of race as one of many factors justifying heightened suspicion. In United States v. Martinez-Fuerte, for example, the Supreme Court held that the Border Patrol can lawfully consider Mexican ancestry in deciding which vehicles to search for illegal aliens. To Cole, such rulings are hardly the central problem. To Kennedy, however, concentrating on purposeful discrimination is important. He reasons that in the absence of discriminatory intent, assessing whether a law is actually harmful to minorities is far more complicated than liberal critics commonly assume.

“A racial disparity is not necessarily indicative of a racial discrimination,” insists Kennedy in a crucial passage in Race, Crime, and the Law. He continues:

Some critics attack as racist urban curfews that regulate youngsters on the grounds that such curfews will disproportionately fall upon minority youngsters. But are black communities hurt by curfews which limit the late-night activities of minors or helped insofar as some of their residents feel more secure because of the curfews? Some critics attack as racist police crackdowns on violent gangs because such actions will disproportionately affect black members of gangs. But are black communities hurt by police crackdowns on violent gangs or helped by the destabilization of gangs that terrorize those who live in their midst?

What Kennedy is doing, of course, is placing the treatment of minority victims at the center of the concern for equality. “It’s something that’s always been there but that people really haven’t looked at,” he told me in his spacious, book-lined office at Harvard Law School, where he has taught since 1984. “Look at the history of the NAACP,” said Kennedy, who wears large plastic-frame glasses and has a lively, animated manner. “The first thing the NAACP was concerned with, for its first twenty years, was lynching. Here was a practice where black people literally lacked the equal protectionof the law.” In the most haunting chapter of Race, Crime, and the Law, Kennedy chronicles the chilling litany of cases in which white judges and juries have exonerated those who raped, robbed, or murdered African Americans. “Goodness gracious, anybody hurt?” reads the chapter’s epigraph, from Huckleberry Finn. “No’m, killed a nigger.”

It’s not that Kennedy doesn’t think minority suspects, too, have suffered from discrimination at the hands of white authorities. He recalls that while growing up in Washington, D.C., he would travel with his family to visit relatives in South Carolina, and his father would get pulled over for no apparent reason. “He was a black man with out-of-state plates in a nice car,” explained Kennedy. “That was enough.” Kennedy later interned at the NAACP Legal Defense Fund, an experience that politicized him in much the way that Cole’s internship politicized him, and went on to clerk for the Supreme Court justice Thurgood Marshall.

“It was a great experience,” says Kennedy of the clerkship. “Growing up, my father used to tell me about going to see Marshall argue one of the very last white primary cases, in South Carolina. In those days, if a problem arose in the black community, people would say, ‘Hold on, Thurgood’s comin’.’ And he would.” On the last day of his clerkship, Kennedy says, he brought his parents in to meet their hero. “My father told Marshall about seeing him argue that case…. It was very moving.”

Given these experiences, it’s hardly surprising that Kennedy, who serves on the editorial boards of both the American Prospect and The Nation, classifies himself as politically progressive. “I’m clearly on the liberal end of things.” In fact, however, Kennedy’s views are eclectic. He is above all a skeptic and provocateur who seems to delight in challenging the ideological assumptions of both the left and the right – and in courting controversy. In the Harvard Law Review back in 1989, he scathingly criticized several leading exponents of critical race theory, including Richard Delgado, Derrick Bell, and Mari Matsuda, for reinforcing dubious notions of racial distinctiveness. “Although promoted in the name of an insurgent, liberatory, intellectual endeavor,” charged Kennedy, such scholarship tends to replicate “deeply traditional ideas about the naturalness, essentiality, and inescapability of race.” His fiercest objection was to the critical race theorists’ notion that ideas and sensibilities could be categorized on the basis of race (that is, that there is such a thing as “a black perspective”), a notion that ignored “the reality of intra-racial disputes.”

His critique provoked an uproar, including articles in the New York Times and The Nation. Angry ripostes followed from Matsuda, Bell, and Delgado, who accused Kennedy of publishing the piece “for the purposes of justifying the current politico-legal system” and of turning a blind eye to the “flagrant exclusion” of minority scholars from positions of power. A year later, Kennedy launched the short-lived Reconstruction, a journal on African-American politics and culture that quickly established a reputation for bucking conventional wisdom, featuring articles by authors such as Stephen Carter, Glenn Loury, and…David Cole.

“I think Randy doesn’t like to be pigeonholed, which leads him to take positions that will surprise people,” says Cole, who contributed an essay to Reconstruction criticizing hate laws (on civil libertarian grounds). “It’s part of his philosophy of color blindness: He wants to be seen as a scholar, not as a black scholar who is expected to take a certain position because of his identity.”

Kennedy concurs: “There have been a number of times in my career where people have said, ‘Don’t say that, because you’re black and what you say will lend credibility to a bad idea.’ I understand that, but I don’t shy away from writing what I think.”

Which is why he has not refrained from drawing attention to the problem of black victimization. For all the outrage provoked by incidents like the Rodney King beating, Kennedy finds it disturbing that all too many critics, particularly those who view their mission as “advancing the interests of blacks,” pay so little attention to the startling disparities in victimization rates. “Black teenagers are nine times more likely to be murdered than their white counterparts,” he writes in Race, Crime, and the Law, and the overall murder rate for black males today is double the rate of combat deaths for American servicemen during World War II. Kennedy concludes that “blacks (and other people of color) suffer more from the criminal acts of their racial ‘brothers’ and ‘sisters’ than they do from the racist misconduct of white police officers.”

It’s a view that has provoked heated objections, particularly from other African-American scholars. Reviewing the book in the journal New Politics, New York University professor Derrick Bell complained that Kennedy’s emphasis on black-on-black crime “causes him to lose sight of how horribly invidious the problem of racism is.” Writing in the Harvard Law Review, Paul Butler, a former student of Kennedy’s who comes under harsh attack in Race, Crime, and the Law for advocating black jury nullification, portrayed Kennedy (whom he mockingly dubbed “Respectable Randall”) as an Uncle Tom who believes racism “only encumbers the bad blacks who commit crime and not the good Negroes who constitute the majority.”

To Kennedy, who took pains to xerox and share these reviews with me, such assessments may be unpleasant but seem only to confirm his sense that what he is saying is important. “At the center of all discussions about racial justice and criminal law,” he concludes, “should be recognition that black Americans are in dire need of protection against criminality.”

THE PREMISE underlies one of Kennedy’s most controversial arguments: namely, that the different punishments for trafficking crack versus powder cocaine (a person convicted of selling five grams of crack receives the same punishment as a person convicted of distributing five hundred grams of powder cocaine) are not, as critics commonly allege, the product of racism. In No Equal Justice, Cole points to statistics indicating that 93 percent of those convicted of crimes involving crack were black and 45 percent of those convicted of crimes involving powder cocaine were white, a seemingly clear sign that maintaining the 100:1 disparity exacerbates racial inequality.

Not so, argues Kennedy. “To the extent that the enhanced punishment for crack offenses falls upon blacks,” he writes in Race, Crime, and the Law, “it falls not upon blacks as a class but only upon a distinct subset of the black population – those in violation of the crack law.” Kennedy advanced this argument in a highly controversial 1994 article in the Harvard Law Review, in which he assailed a Minnesota Supreme Court ruling that had invalidated the crack/cocaine distinction on the grounds that it “appears to impose a substantially disproportionate burden” on blacks. Nonsense, charged Kennedy. “It is a ‘burden’ on those who are convicted of engaging in this conduct,” he countered. Law enforcement is a “public good” that “benefits the great mass of law-abiding people.”

“One of the reasons I wrote about that,” Kennedy told me, “is that I was reading through all these articles on the crack/cocaine distinction, and nobody – nobody – was talking about the history of congressional attitudes about crack. So I decided to look it up.” He leaned forward. “Well, it so happens that the first person to draw attention to the dangers of crack was Charles Rangel,” an African-American liberal Democrat who represents Harlem in the House, “and there were a substantial number of other black representatives who started saying, ‘Hey, let’s crack down on crack,’ because they felt it wasn’t being taken seriously.” In other words, it was not racism but a concern about crack’s devastating impact on inner-city neighborhoods that drove the legislation. Such concerns, Kennedy notes, are hardly rare in the black community: A 1993 Gallup poll, for example, found that 82 percent of blacks believed the courts in their areas do not treat criminals harshly enough, 75 percent favored putting more police on the streets, and 68 percent advocated building more prisons so that longer sentences could be given to criminals.

“The crack law may be wrong,” says Kennedy (in which case Congress should change it), “but that is very different from saying it is racist” (in which case it should be viewed as unconstitutional). In his Harvard Law Review article, Kennedy concludes that the presence “of a racially discriminatory purpose distinguishes those laws that are specifically racial, and therefore presumptively illegitimate, from those that merely give rise to racially disparate consequences that disadvantage some African Americans while benefiting others.”

Soon after it appeared, Kennedy’s article was cited in a Washington, D.C., court of appeals ruling that rejected a constitutional challenge to the crack/cocaine distinction.

It also provoked a lengthy rebuttal from David Cole. Writing in the Georgetown Law Journal, Cole argued that although Kennedy’s effort to distinguish between the crack law’s impact on law-violating and law-abiding blacks was understandable, “much of the world does not make that distinction.” The drug war, Cole pointed out, was a major factor behind disproportionate minority arrests and harassment, actions that affect all members of the black community. Charles Rangel and other minority representatives in Congress, Cole added, had originally proposed placing crack on a par with cocaine, not creating a 100:1 disparity, and congressional black and Hispanic caucuses have since proposed overturning the law, in part because the disparities in the drug war have become so glaring: African Americans, Cole noted, constitute “14% of all drug users” but “35% of all drug arrests, 55% of all drug convictions, and 74% of all sentences for drug offenses.”

In addition, Cole charged, by arguing that only laws that are explicitly racist should be subject to review under the equal protection clause (the so-called intent doctrine espoused by the current Supreme Court), Kennedy would exempt from scrutiny the vast majority of modern discrimination, which is subtle, unconscious, and structural. Cole noted that Kennedy himself argued this point in a 1991 article on the controversial McClesky v. Kemp decision. Warren McClesky, a black man facing the death penalty for killing a white police officer, had challenged the death penalty’s constitutionality by presenting evidence that defendants charged with killing whites were 4.3 times more likely to receive a death sentence than defendants charged with killing blacks. In a five-four decision, the Supreme Court ruled that while the statistics seemed to show disparate treatment, McClesky would have to show purposeful racial discrimination in his own case to raise constitutional concerns.

Kennedy has been an unsparing critic of the McClesky ruling, describing the Court as “haunted by anxiety over the consequences of acknowledging candidly the large influence of racial sentiment” underscored by the statistics. But if this is the case with the death penalty, why not with the drug war, where, Cole argues, racial selectivity is equally stark?

In his book, Kennedy differentiates between the death penalty and the drug war by suggesting that “death is different” because it is society’s ultimate punishment. When we met, however, he seemed to have moderated his position somewhat. “I do have some qualms about what I wrote” in 1994, he confessed. Pointing to a Justice Department report released in April 2000 that found black youth forty-eight times more likely than whites to be sentenced to juvenile prison for drug offenses, Kennedy said, “If it’s true that Congress would act differently if this were the impact on the white population,…then this is a policy of racial selectivity.”

“But,” he added, “I want to change the drug war because it is counterproductive or ineffective, not because it is racist. One of my criticisms of David and his allies is that they are using this very traditional approach – almost a sort of racial shaming tradition. I think he wants charges of racial discrimination to do political work, and I have real doubts about the efficacy of that…. I mean, people have tried making those charges for a long time now, and it hasn’t really gotten very far.”

“Furthermore,” Kennedy added, “I get the sense that David thinks conservatives are sort of a lost cause, that they are barely worth talking to. Well, I think it’s important to talk to conservatives. I think some conservatives, especially those who talk about limiting big government, should be concerned with the unaccountable behavior of the police…. But I think we need to reach out to conservatives who embrace the goal of building safe communities.”

“He has a point,” says Cole, acknowledging that his work focuses far more on the costs of law enforcement than on the costs of crime. Cole, however, insists that No Equal Justice does address the issue of community safety, albeit from a different angle. Citing the social psychologist Tom Tyler, who has conducted studies showing that the people most likely to obey the law are those who believe in its moral legitimacy, Cole argues that a system based on double standards paradoxically “fuels racial enmity and encourages crime” by making the targets of discriminatory practices less inclined to play by the rules. Gallup polls, Cole notes, indicate that three-fourths of African Americans believe the criminal justice system is racially biased and a majority view the police as corrupt. “In the long run, I think we all lose from this approach,” says Cole, who points to cities like Boston and San Diego, which have sharply lowered crime in recent years not by stopping and arresting massive numbers of minority citizens but by implementing community policing strategies, such as sit-down meetings with gang members and counseling and mentoring programs for youths. “One of my main points is that we have lots of choices in how we respond to crime. Boston and San Diego have decreased crime and civilian complaints about police misconduct.”

Ultimately, Cole’s book will not likely appeal to those who view punishment and incarceration as the best mechanisms for enhancing security. Interestingly, though, Cole admits that some people might answer his call for equality by arguing that criminal justice should be more punitive across the board. In Minnesota, he notes, when the Supreme Court invalidated the crack/cocaine distinction, the legislature responded not by liberalizing the crack law but by increasing the penalty for powder – an approach Cole deems overly punitive but still preferable to the existing double standard.

Still, Cole maintains that, over time, the “get tough” approach to crime would lose much of its appeal were the costs borne more equally. “At current trends,” he notes, “one in four black male babies born today will spend at least a year or more of his life in prison…. We are the world leader in freedom but also the world leader in prisons…. This would not be accepted if it were one in four white babies.”

IT’S WITHIN this context that Cole finds fault with Kennedy’s emphasis on security. “I don’t think Randy has this intent, but his work unfortunately lends legitimacy to people who are advocating harsher and harsher policies that ultimately redound to the detriment of the black community,” he says. In a recent article in the Georgetown Law Journal, Cole links this aspect of Kennedy’s work to what he calls “the new discretion scholarship.” During the past two decades, Cole notes, a growing number of scholars, building on the “broken windows” theory, have embraced the notion that in order to control crime in inner-city neighborhoods, courts need to broaden the police’s discretion even further.

Dan Kahan and Tracey Meares, at Yale and the University of Chicago, respectively, champion aggressive order-maintenance policing under open-ended statutes, arguing that such policies, if well regulated, are far from racist and in fact benefit the law-abiding members of inner-city communities. In their articles, Kahan and Meares often cite Kennedy’s emphasis on minority victimization to bolster their case. They have also echoed his arguments in a brief submitted before the Illinois Supreme Court in 1997 that endorsed a controversial anti-gang loitering ordinance; the law allowed the Chicago police to arrest people and remove them from the streets even if they were not engaged in criminal conduct. (The ordinance was recently overturned by the Supreme Court and has since been amended.)

To the consternation of Kahan and Meares, Kennedy signed on to a brief opposing the Chicago anti-gang ordinance. “I was definitely surprised and a little disappointed by that,” says Kahan. “I mean, he’s the person who inspired this whole new conception of how criminal law and policing and race relate to each other.”

Kennedy, who is largely sympathetic to quality-of-life policing initiatives (“I think laws against littering and spitting and jumping through turnstiles do make people feel they can use the streets”), says he can understand Kahan’s disappointment. “A good number of people wrote and e-mailed me to say, ‘Gee, I read your book, I thought you’d be on the other side,’” he says. But Kennedy stands by his position. “Do the police have to have discretion – of course they do. The question is, Do they need that authority augmented? I think, to the contrary, we need to make sure they are doing what they’re supposed to do.” Kahan and Meares, he adds, “seem to think political power has changed so much that racial minorities don’t have to worry about the police as armies of occupation. I think they are much too sanguine on that.”

It’s a little difficult to square all this with Kennedy’s insistence that what minority communities most need is more law enforcement. (“There is a real tension here,” he concedes.) Then again, perhaps his views have evolved somewhat in the course of recent events – and in the course of his dialogue with Cole. “He helps rope me in if I’m straying off too much,” Kennedy explains, “and I get the sense that perhaps I’ve moderated his line on certain issues. For example, he does say explicitly in his book that we should also be concerned about the victims of crime. I would have liked to see him push that a little more, but I was happy to see that.” He pauses. “Overall, it’s been a very fruitful exchange.”

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The Color Test – Two Scholars Square Off (Lingua Franca October 2000)

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