Race and the Law

There’s a long-ish article at the City Journal about race and the criminal justice system.

It seems to be commonly accepted (and frequently claimed) that the system is racist. This article argues that common knowledge is wrong. Why are proportionately more black people in jail than white people? Because they commit proportionately more crimes.

The writer (Heather Mac Donald) discusses the higher penalties of crack possession vs. powder cocaine, the sentencing of convicted criminals, the arrests of suspected perpetrators, and more. In every case, racism seems to play no part.

And I think she’s mostly right. I’ve read it all before, in a book that she mentions in her article: Race, Crime, and the Law, by Randall Kennedy. That book is an extremely thoughtful and carefully researched look at the issues. (Randall Kennedy is the Harvard Law Professor who also wrote, “Nigger: The Strange Career of a Troublesome Word,” and “Sellout: The Politics of Racial Betrayal.”)

The City Journal article and Kennedy’s book pretty much agree, but there is one place where Kennedy DID find signs of systemic racism, and which Mac Donald left out of her article. I think it’s a little shady to write a 5500 word essay about the topic and forget to mention the one place where the data suggests a wrinkle. On the other hand, this one sign of racism isn’t what you might think, and maybe she felt it muddied the waters.

Here it is:

NOT RACIST: Two murders are committed, one by a white guy and one by a black guy. The level of brutality is the same. The prior convictions of the criminals are the same. Everything else is the same, except the races of the assailants.

Apparently, the numbers show that the men have a similar chance of being convicted, and once convicted, will enjoy about the same amount of time in prison.

RACIST: As above, but the assailants are the same race, and one of the VICTIMS is white and one is black. The murderer of the black victim will most likely get less time in prison than the murderer of the white person.

It’s all about the victim, regardless of the color of the perpetrator. I can’t remember whether Kennedy felt that prosecutors seek (and judges apply) higher penalties against killers of white folks. If they do, then that’s a racist element in the system that should be corrected by government. If not, then the juries are to blame, and we can’t properly correct that through legislation.

But I do remember his book mentioning the difficulty of fixing the problem, even if judges and prosecutors are to blame. Where’s the civil rights law suit? Who exactly would bring the suit, saying that they’d been discriminated against? Could a black killer say that he was discriminated against because he received a high penalty for killing a white man? But his sentence is the same as a white killer’s would have been.

Could a black victim bring suit? Maybe he could claim that he was more likely to be attacked than a white man, because penalties are lower for attacking him. But could he really convince a court that the assailant picked a black man to rob because of lower penalties? And anyway, it wasn’t the government who robbed him. Doesn’t a person bringing a suit to court have to claim that he’s suffered damages that the defendant is responsible for?

Tricky.