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Law Matters

Randall Kennedy reminds us that criminal justice isn't always black-and-white

Randall Kennedy has a cautious temperament. "He'd make a terrific judge," says one colleague. But even Kennedy acknowledges that his new book, Race, Crime, and the Law (Pantheon Books, 1997), traverses "bitterly contested crossroads." The 42-year-old Harvard law professor clerked for former U.S. Supreme Court Justice Thurgood Marshall and, like Marshall, nurtures a faith in the American legal system. This faith is hotly disputed by other African-American intellectuals, many of whom believe the courts are inherently biased.

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Aware that he may be accused of being naive, or even insensitive to racism, Kennedy has taken pains in Race, Crime, and the Law to place his arguments for legal color blindness in the historical context of slavery and post-Reconstruction discrimination. From that vantage point, he argues that blacks have suffered more from underprotection than overprosecution. Women slaves, for instance, had little recourse against rape. He asks, "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?" Acutely sensitive to racial hypocrisy, he takes on figures as diverse as William Rehnquist (for voting against race-based employment preferences but for allowing police to use race as a criterion for determining suspiciousness) and Johnny Cochran (for "playing the race card" in O.J.'s defense). And his views do not fall neatly into identifiable camps: He sees the fact that proportionally many more blacks are put to death by the state as a grave injustice, but he also contends there are sound reasons for punishing commerce in crack cocaine more severely than that in powdered cocaine. Hugh Pearson interviewed Kennedy at the professor's Cambridge office.

Q: You think that purposely aiming for racially balanced juries should be done only when the need for it can be specifically proven. Wouldn't it be pretty easy to prove, given the prevalence of racism in our society?

A: I'm sure this will be one of the places where the book is criticized the most. I'm against the deployment of racial distinctions in the law to create racially mixed juries. I'm for a strong and vigorously enforced anti-discrimination norm so that nobody is excluded on a racial basis. After that, I say, that's enough. If it so happens that, say, a white politician in D.C. is tried by a jury that happens to be all black, as far as I'm concerned that's no problem. Those 12 people are Americans, and they should be granted the presumption that they will do their best to see that justice is done. I don't think the white politician has any basis for saying that he's been dealt with unfairly. The same thing goes for whites. If a black defendant finds him- or herself before an all-white jury, I don't think that, per se, is unfair. He is being tried before 12 Americans, and I think we should presume that the jury will try to do the right thing. And if they don't, then criticize them for that. But don't criticize the jury for being all white.

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