The Strange Career of Randall Kennedy

Derrick Bell

[from New Politics, vol. 7, no. 1 (new series), whole no. 25, Summer 1998]

Derrick Bell visiting professor at the NYU Law School, has written widely on race. He is best known for his allegorical stories featuring his fictional heroine, Geneva Crenshaw, the most recent of which is Afrolantica Legacies published in 1998.

AFTER FIVE YEARS OF WORKING ACROSS THE DEEP SOUTH as a Legal Defense Fund lawyer in the mid-1960s, I accepted what was then considered a relatively high level civil rights position in the federal government. After listening to a speech I presented to a civil rights group explaining why our enforcement strategy was more modest than conditions demanded, a young, NAACP attorney came up and criticized my remarks in one searing sentence: "Well Derrick," she said, "I see you have become a most efficient apologist for the government."

The unnerving comment served as a sharp reminder that while working in government, I was still representing black people whose rights, because of racism, remained rigidly circumscribed. I should not forget, she counseled, that I held quasi-influential positions because of the sacrifices that blacks, particularly those in law, had made over the years. More than 30 years have passed since then, but black people today continue to need advocates in their liberation struggle against racism, not apologists for the system optimistically pointing to the "progress" we have made while ignoring the undeniable fact that, however harmful to blacks, this nation moves to correct even the most serious racial injustices only when reform is clearly in the interests of whites, or some of them.

My militant lawyer friend would have ample reason to label Randall Kennedy's book, Race, Crime, and the Law*, an apology for the system. Except that Kennedy is not a government official obligated by his position to defend policy decisions he did not make. Rather, he is a tenured, black professor at one of the nation's best-known law schools with all the leeway of statement that academic freedom provides. Surely, he cares about the plight of blacks far less fortunate than himself. They need advocacy on a range of racial issues involving the administration of the criminal law. Why has he turned his back on that role and volunteered to serve as objective moderator in an arena where the whites who dominate policy making are not interested in mediation and welcome his well-intended concessions as arguments against needed reforms?

A Promise Not Yet Fulfilled

IN THE DOZEN OR SO YEARS SINCE JOINING the Harvard Law School faculty, Randall Kennedy, because of a range of writings in law review journals and lay publications, has become a much-sought-after expert on race whose views are solicited on television talk shows, in important periodicals, and at scholarly conferences. A Harvard professorship insures prominence to all those who hold one, but Kennedy has the credentials so valued by law school gate-keepers. He has degrees from Princeton and the Yale Law School, a Rhodes scholarship, a judicial clerkship with the late Associate Justice, Thurgood Marshall, all leading to a tenured position at the Harvard Law School by his mid-30s. These are impressive for anyone and they remain exceptional in the extreme for a black man. And yet, Kennedy, despite his abilities, did not get to Harvard without the struggle of many others who demanded more minority faculty at that august institution.

When in 1986, I returned to Harvard after a five-year stint as dean of the Oregon Law School, Randall Kennedy had accepted an invitation to teach there offered in the wake of student protests demanding that the school hire more black faculty. The protests were sparked when I departed and the school gave visitor status to then Legal Defense Fund, director-counsel, Julius Chambers and board chair, Jack Greenberg to teach one of my courses jointly. Black students boycotted the course, not because Greenberg was white as some media pundits charged, but because students felt the visiting post should go to someone who could be considered for a permanent position. The school certainly and Kennedy, perhaps, would deny any connection between the student protests and his hiring. The reality, of course, is that few institutions -- and certainly not Harvard -- move toward more racial inclusiveness without pressure sufficient to awaken a tardy recognition that a modicum of diversity can be a valuable addition to a school's reputation.

Randy Kennedy began his teaching career with great promise. He is smart, personable, well-read, and he works very hard. His first few articles were stunning models of racial advocacy.1 They seemed to foretell that this gifted young man would become a powerful voice for a people whose expectations that the civil rights era would gain its racial justice goals were fading fast. I saw in Kennedy a comrade and an eventual successor in my racial battles with Harvard. In keeping with this expectation, I declined the dean's offer to again teach Race, Racism, and American Law, the civil rights course I had created when I joined the faculty years earlier. Kennedy had been teaching it in my absence. "Let Randy keep it," I told him. "I will teach something else." It was a decision I came to regret. Kennedy retained the course name, but dropped its advocacy orientation. Disgruntled students complained that Kennedy spent more time challenging and even denigrating civil rights positions than he did analyzing the continuing practices and policies of discrimination that made those policies, whatever their shortcomings, necessary.

Over the years, Professor Kennedy has become the impartial, black intellectual, commenting on our still benighted condition and as ready to criticize as commend. As self-appointed monitor of civil rights positions, he stands ever ready to balance even the most heinous racial abuse with criticism of blacks when, in his view, our accusations condemning racism in the criminal justice system go too far and are counter-productive. He interrupts attacks on racist practices by pointing out that blacks, too, sometimes abuse the criminal justice system. When advocates condemn a system that is filling the nation's jails and prisons with legions of young, black men, he responds with the non sequitur that these men are guilty of many of the crimes that lead to their imprisonment.

Kennedy, like Thurgood Marshall, is a contrarian. He loves to argue and play the devil's advocate. This is a useful talent in the classroom and is quite helpful in fine-tuning litigation strategies. Justice Marshall, though, never forgot whose side he was on, particularly in public proclamations as opposed to private discourse. In public, he was the ultimate advocate for the black cause as reflected in his civil rights career and his judicial tenure. Kennedy, on the other hand, is quite willing to take his differences with black people public in ways that -- whether intended or not -- serve to comfort many whites and distress blacks. It is not that his criticisms are new. White conservatives have made similar arguments and worse.2 It is that he is relinquishing a much-needed advocacy role and taking positions that render him an apologist on aspects of the criminal justice system that are less overtly racist than in earlier times but no less ominous in the threat they pose for all blacks.

There may have been earlier signs of Kennedy's transformation from advocate to critic of blacks, but his ideological shift crystallized in his major article in the Harvard Law Review questioning the need and value of Critical Race Theory (CRT).3 The name covers a widely varied stream of relatively new legal writing in which mainly minority scholars depart from traditional modes of legal analysis -- parsing precedents and critiquing doctrine -- none of which seem adequate to delineate the impact and significance of racism in the society and the legal rules generated by the society.4 Instead, Critical Race Theorists -- I among them -- use fictional stories and personal experiences as vehicles for understanding and condemning the virulence of racism.

When I read his anti-CRT manuscript, I urged Kennedy not to publish it both because I thought his criticism of the CRT writers was inaccurate and unfair, and because there were a legion of white law teachers who did not like and felt threatened by our writings. They, I cautioned Kennedy, would welcome his article and wield it as a club to denigrate and even deny tenure to young scholars who dared identify with the new movement.

His response to my warning was: "Can't I write what I think?" "Of course, Randy" I agreed, "but whenever a black person is in a position to get his views on race published, he or she should keep in mind that white people who do not like what we are doing, do not play fair." I explained that those with an anti-black axe to grind take our words out of context and use them with what they will claim is black-endowed legitimacy to harm those blacks less well off than we are. My prediction proved accurate. Kennedy's article was hailed by white critics of our work5 and condemned by most black6 and some white7 scholars. In a lengthy article, the New York Times quoted an anonymous source who told them minority law teachers were out to lynch Kennedy and were excluding him from our conferences.8 In a letter to the Times, I denied the charges by their anonymous source, adding: "the Times story itself shows that the media is ready to accord Kennedy that special celebrity status available to any black willing to speak for whites -- like the Times' anonymous source -- who are unwilling to criticize blacks for the record. The list of blacks who achieve renown by serving as racial apologists is already too long. I regret that, as I predicted, Kennedy's article is read by so many as an audition to play the role of academic minstrel. A person of Professor Kennedy's talents and potential deserves a reputation built on far more honorable ground."9

A Racial Contrarian's Career, Well-Launched

KENNEDY'S BOOK EXAMINES MAJOR AREAS of racial discrimination: the composition of juries, the death penalty, and the War on Drugs. He also reviews the inadequacy of law in protecting black rights with special emphasis on the rape and lynching of blacks. In each of these areas, he competently covers material well known to those working in the field. Even as he describes the discriminatory policies that continue to distort the American criminal justice system, his search for the neutral stance causes him to lose sight of how horribly invidious the problem of racism is for black people who disproportionately find themselves at the mercy of a criminal justice system that unapologetically prefers and protects whites.10

Kennedy sets the tone of neutral commentator in his opening chapter, titled: "The Race Question in Criminal Law: Changing the Politics of the Conflict." Stylistically, Kennedy uses the first chapter to give a basic overview of what each following chapter holds. He begins by identifying what he believes to be the major camps of thought regarding the race question and crime. Here, he seeks to distinguish the law-and-order zealots who are covertly appealing to anti-Negro prejudice from those who are genuinely concerned about personal safety and safe streets. The latter group, he urges, should give high priority "to correcting and deterring illegitimate racial practices that diminish the reputation of the law enforcement establishment." (p. 4) It is this reputation that contributes to African Americans' distrustful "attitude" toward the criminal justice system. He calls on libertarian conservatives who are dedicated to limiting government power generally to join the effort to eliminate racist practices in the criminal justice system, and points out that those, like Justice Clarence Thomas, who view the Constitution as color-blind should be as opposed to discrimination in criminal justice as they are to affirmative action. Finally, as to racial justice advocates, he urges that we too quickly charge racial bias without bothering to grapple with the evidence and arguments that he suggests rebut our charges. Predictably, as evidence for this statement, he offers the Tawana Brawley controversy; the case that whites have advanced for years as exculpatory proof that black people lie about racism and racial violence.

Kennedy's choice of words, reliance on black stereotypes, and magnanimous viewpoint on sensitive racial issues are disturbing. It is as though he is a visiting scholar from Mars whose report on our criminal justice system is based on interviewing mainly white conservatives on the subject, all of whom acknowledged that racial discrimination existed in the past but gave short shrift to contemporary charges of continued discrimination. Throughout the chapter and the book, Kennedy seems to seize upon the image of blacks as irrational, emotion-driven, attitudinal people. He states that this black "attitude" about racism in criminal law "causes some black attorneys to eschew joining prosecutors' offices" because they don't want to "sell out" or work for the "Man." Further, according to Kennedy, this "attitude" causes blacks to "decline to cooperate with police investigations be unreasonably skeptical of police testimony or even refuse to vote for convictions despite proof beyond a reasonable doubt of defendants' guilt."

All of these statements are strictly stereotypes. Blacks are usually very willing to assist police investigations and, when on juries, they are also more prone than whites are to convict. Blacks do question authority because power corrupts, and blacks, who remain the truly disadvantaged in American society, are the first to suffer corruption-bred injury. Kennedy seems to suggest that black people should not question authority by being critical of a system that has historically terrorized and oppressed them.

Kennedy states that in order to alleviate race issues in law enforcement, society needs more "reforms aimed at outlawing wrongful or illegal racial discrimination suggesting, perhaps inadvertently, that there might be a rightful racial discrimination. He argues that activists who are dedicated to the advancement of blacks "make formulaic allegations of racial misconduct" with the result that the abundance of "poorly conceived allegations of racial misconduct also spread harmful confusion" (p. 8).

While the first chapter is inundated with many more derogatory, stereotypical and inaccurate statements, the section where Kennedy suggests that blacks are exaggerating by claiming "that American drug policy is really genocide," (p. 9), and that blacks misuse terms like "racism, lynching and holocaust" when describing how the American criminal justice system deals with them is especially outrageous. Let's put aside the government's too vigorously denied report about the Central Intelligence Agency's initiative to supply black drug gangs in California with guns and drugs in the 1980's. The appropriateness of the genocide charge can be effectively weighed by imagining the government's response if the devastation of the drug trade was happening in white, middle-class communities.

Analogy, though, is unnecessary to support genocidal fears when reliance can better be placed on statistics that reviewer Paul Butler concludes Kennedy felt were irrelevant because he could not find them in Kennedy's book. Butler reports "half of prison inmates are black; almost half of the women in state prison are black; nationally, nearly one third of young black men are either in prison, on probation or parole, or awaiting trial; more young black men are in prison than in college."11 Rather than viewing the disproportionate number of blacks in jails -- mostly for drug offenses -- as an important component of the black genocide argument, Kennedy argues that their imprisoned presence might not have anything to do with police bing racially discriminatory when making arrests. It may, he argues, simply signal that more blacks than whites are committing criminal offenses. This is an argument I have heard from well-meaning but unenlightened whites. I did not expect that it would be raised, even as a debating point, from someone as able as Randall Kennedy.

Given the disparities in the percentages of whites and blacks imprisoned, it is, at the least, an understandable paranoia that would lead some blacks to conclude that the government is out to get us and the criminal justice system is a principle vehicle for our elimination. Disparity in sentencing, as is the case for powder and crack cocaine may harm some blacks, Kennedy concedes, but may help those black communities who are freed of crack dealers. Thus, he urges, courts should "avoid conflating the interests of a subdivision of blacks--black suspects, defendants, or convicts -- with the interests of blacks as a whole." (p. 11).

To encourage such distinctions by courts and the society in general, Kennedy urges blacks to adopt a "politics of respectability." Noting that blacks are burdened by the "fears, resentments, and stereotypes generated in part by the misdeeds of black criminals" (p. 17), he reasons that if we define our conduct based on white middle-class normative behavior, black communities will be able to elicit respect from white Americans and can begin to reduce whites' indifference to racial injustice. One might criticize this approach as harking back to the long-discredited Booker T. Washington theme urging blacks to "prove ourselves worthy." In fact, though, there is now "a deeply rooted impulse in African-American culture to distinguish sharply between "good" and "bad" Negroes." (p. 17), all in the hope of attaining an aura of respectability in a society all too ready to judge us all by the worst in our midst.

While it is true that blacks feel the need to emphasize that they are "good" blacks because society makes them feel "tainted" by the misdeeds of black criminals, Kennedy chooses not to discuss why whites are not made to feel the same way about the misdeeds of white criminals. My research assistant, Keisha-Ann Gray, reports that as the only black student in her senior class in high school, she was expected to explain to her white classmates why some black teenagers raped a white woman in Central Park. No white student, on the other hand, was expected to explain why Jeffrey Daumer, a white man, enjoyed eating dead black people. It would have been interesting if Kennedy had looked deeper into this problem, and discussed, or at least articulated the fact that the politics of racial respectability does not affect white people who feel no need to distinguish between "good" and "bad" whites while black people find it necessary to distinguish themselves in this way.

Kennedy ends the opening chapter of his book with more troubling statements. By arguing that blacks "suffer more from the criminal acts of their racial "brothers" and "sisters" than they do from the racist misconduct of white police officers" (p. 20), he seems to be saying that (1) as long as blacks hurt one another, they should not complain when someone outside of the "family" hurts them, and (2) racist police misconduct harms fewer black people than does black on black crime. The first implication is ridiculous on its face. However, the second implication, that racist police conduct is not as bad as black-on-black criminality is inaccurate, dangerous, and warrants some response.

The police force is arguably the most powerful organization in society because officers of all ranks are imbued with the power to infringe upon the liberties of society's citizens. Therefore, the racist misconduct or power abuse of white police officers entangles their victims in the criminal justice system. Corrupt police conduct has more far-reaching, long-term and life-altering detrimental effects than does black on black criminality because police, not blacks, have immense social and institutional power. While blacks do not hold any significant power in society, Kennedy appears to believe that we do. In the final paragraph of the chapter he writes that "blacks effectively exploit [their] racial power" by "playing the race card" (p. 28). When compared to whites, what "racial power" do blacks possess in American society? The "race card" that blacks play, as Kennedy uses the term, is their refusal to remain silent about the impact of racist policies.

IN HIS CHAPTER ON UNEQUAL LAW ENFORCEMENT, KENNEDY PROVIDES a worthwhile chronological history of how slaves were raped and killed with virtually no interference by law. Even after the Civil War, the United States government deliberately failed to protect blacks from racist treatment and racial violence perpetrated by whites. This material is informative, interesting and accurate. He provides details of a few of the 3,446 blacks officially recorded as lynched in the period from 1882 to 1968, offering as well the excuse offered by many whites that allegations of a black raping a white woman justified such lawless conduct.

Kennedy is at his finest as he traces the frustrated efforts in Congress to enact anti-lynching laws. Beyond the opponents' assertions that no law would prevent whites from taking vengeance on blacks who raped white women, there was the legal argument that such laws would exceed the national government's powers and trample the principles of federalism established in the Constitution requiring that local crimes be prosecuted by the states where they occurred. The Supreme Court relied on this argument to reverse the few convictions federal authorities were able to obtain under post-Reconstruction civil rights statutes.

Kennedy points out, however, that a dozen years before the defeat of a major, anti-lynching bill, Congress overcame federalism concerns and passed the White Slave Trade Act barring the transportation of women across state lines for purposes of prostitution. Proponents of the measure bolstered their arguments by evoking the specter of white women being taken across state lines to further interracial sex. Similarly, a national narcotics act passed easily, facilitated by testimony that cocaine use increased blacks' propensity for violent crime, particularly the rape of white women. And Southern congressmen who used the shield of federalism to block anti-lynching legislation, supported a measure to bar the interstate transportation of fight films, a measure Kennedy reports that reflected white antipathy to Jack Johnson, the first black heavyweight champion who roundly defeated his white opponents and added insult to injury by marrying a white woman. Regrettably, the willingness to use racism as leverage in achieving policy goals is as present today, albeit on a more subtle level, as it was a century ago.

In his coverage of lynching, Kennedy gives inadequate attention to the fact that alleged rapes were often the cover for the murder of blacks who had the audacity to achieve some economic success. Dozens of so-called race riots were, in fact, massacres or pogroms, including East St. Louis, Rosewood, Tulsa, and Chicago. They were sparked by economic envy rather than sexual retaliation. Government was as ineffective in investigating and prosecuting these mass murders as it was in bringing to justice those who killed blacks one or two at a time.12

Even in this grisly recounting, Kennedy strains to balance racist atrocities by whites with what he views as similar conduct by blacks. He relates how during a white rampage in Springfield, Illinois, in 1908, whites placed handkerchiefs outside their residences to distinguish their property from black property and thus avoid the violence of a white mob that killed two innocent blacks, injured scores of people, and burned and looted black-owned homes and businesses. In the very next sentence, Kennedy dilutes the horror of this image by saying that blacks did the same thing by placing "Soul Brother" signs on black-owned property to protect it from black rioters. (p. 48) By choosing to compare what blacks did as an identification practice in ghetto riots aimed at property and often sparked by police brutality with what whites did during a bloody massacre of unarmed blacks to maintain white supremacy through terror and fear, implies that they are comparable.

Later, Kennedy addresses in more detail and in a condescending tone the belief in an anti-black governmental conspiracy theory that many blacks harbor (p. 71). He dismissively states that "much of the conspiracy-minded rhetoric is inflated by paranoia. No one, he claims, has brought forth any substantial proof evidencing "a deliberate governmental effort currently to harm black people, and the plausibility of such a scheme is nil" (p. 72). History, however, has shown that conspiracy is too technical a term to describe a society's almost universal agreement that blacks were to be disenfranchised and subordinated in every aspect of life and that little or no protection would be offered them. This was the prevailing policy in this country for three hundred years. And even after the gains achieved in the last 40 years, there remains plenty of evidence that the commitment to white supremacy remains firmly in place. Thus, a belief in an anti-black conspiracy theory is more a continued certainty than dismissable paranoia. It deserves far more serious attention than Kennedy devotes to it.

HAVING COVERED THE NATION'S FAILURE TO PROVIDE CRIMINAL PROVISIONS to protect blacks against unlawful attacks, Kennedy turns to the history of unequal enforcement of existing laws. Beginning with the laws that criminalized conduct by slaves that was perfectly legal if performed by whites, and continuing with bars limiting the freedom of free blacks both before and after Emancipation, the discrimination against blacks, particularly those charged with crime was outrageous. During the segregation era, there were a few cases in which the Supreme Court reversed convictions of blacks that shocked their consciences and Kennedy covers them well. He also provides a damning review of J. Edgar Hoover's war against black political activists including Marcus Garvey, Martin Luther King, Jr., the Black Panthers, and Malcolm X. His overview of the presence of racism in police conduct and the investigation and adjudication of criminal disputes is painful to read because the record of discrimination in the past is mirrored in recent police killings in which the offending officers either are not prosecuted or acquitted of wrongdoing.

Kennedy pulls no punches in describing this disheartening failure of law enforcement, but in discussing the 1979 police acquittal in the beating and killing of black motorist Arthur McDuffie, and the 1992 police acquittal in the beating of black motorist Rodney King, Kennedy argues that factors other than racism in the jury room might explain why an all-white jury acquitted white police officers in the McDuffie case, and a jury with no black members acquitted white LAPD officers of using excessive force on Rodney King. Both acquittals led to major riots in the black communities of Miami and Los Angeles. Given the impressive evidence of jury reluctance to convict policemen charged with beating or killing blacks both before and since these cases, it is not clear why Kennedy is attempting to offer an alternative to the belief that racism influenced the jurors' decisions that precipitated the Miami and Los Angeles riots.

Kennedy begins a chapter-long discussion of race as a basis for suspicion in law enforcement by asking: "Is it proper to use a person's race as a proxy for an increased likelihood of criminal misconduct?" (p. 137). From the time when even free black persons were presumed to be slaves through World War II when the nation imprisoned all Japanese-Americans based on their race, the law's answer was clearly, yes. Kennedy details how police have continued to use race as a basis of suspicion and how, with few exceptions, courts have approved such presumptions as rational and appropriate. In opposing such policies, he notes that affirmative action is under tremendous pressure politically and legally because whites claim they are innocent victims of policies that penalize them for the misconduct of others who also happen to be white. As a result, the Supreme Court has severely limited those programs by requiring that they meet the exacting standards of strict scrutiny. But the Court ha approved race-based police stops with barely a mention of the harm suffered by innocent blacks or Mexican-Americans who look like suspects who also happen to be black or Latino. This inconsistency is not an aberration but part of a long-standing pattern to shape legal standards to protect whites when such protection can be achieved at the expense of blacks. In urging reform that he acknowledges is unlikely to be adopted, Kennedy believes: "the law should authorize police to engage in racially discriminatory investigative conduct only on atypical, indeed extraordinary, occasions in which the social need is absolutely compelling: weighty, immediate, and incapable of being addressed sensibly by any other means."(p. 161) Given the deeply ingrained practices of using race as a synonym for suspicion, Kennedy's suggested standard, without further elaboration, is capitulation to a vicious practice that, like the ante-bellum, fugitive slave laws, places all blacks at risk of altercations that can lead to arrest, beatings, and death.

Turning to the jury in criminal cases, Kennedy reviews the more than century-long struggle to gain recognition and rejection of the practice of excluding blacks from the jury, either in the composition of the jury panels or in the use of peremptory challenges to remove those blacks who managed to reach the panels from which the jury is selected. Despite the best efforts of reformers, black defendants in cases where the victim is white will usually be tried by all-white juries. The conclusion that race and racism continue to be major influences in the jury selection process and in the outcomes of juries seems beyond doubt, but Kennedy retains his commitment to anti-discrimination as the appropriate standard in jury selection as in all other aspects of the law enforcement process. Rejecting procedures that would insure racial diversity in the jury box, he writes: "We should seek to look beyond looks. We should seek to require not that juries contain certain numbers of people who are white, brown, yellow, red, or black but simply that juries contain conscientious people committed to doing all that they can to bring about that mysterious quality we know as justice. (p. 152)

IN A REMARKABLE ILLUSTRATION OF HIS EVANGELICAL NOTIONS OF RACIAL REFORM, Kennedy deplores racial appeals to the jury whether by prosecutors trying to convict blacks or defense counsel seeking acquittals because, as he puts it, "doing so subverts the goal of the trial process to present a judge or jury relevant evidence and arguments on which to determine fairly the culpability of a defendant." (p. 256-57) He concedes that most such appeals have been by prosecutors in cases involving black defendants and white victims, or by counsel representing whites charged with serious crimes against blacks. Kennedy offers hair-raising examples of the rabid, racial appeals to juries and the refusal of a great many appellate courts to reverse because of them. He discusses the controversy over Johnny Cochran's appeal to race in his summation in the O.J. Simpson case, but notes Cochran's critics might better use their time condemning the many cases where blacks are convicted because their attorneys do virtually nothing to defend them. It is a suggestion that Kennedy could have as easily applied to his earlier biracial condemnation of racial appeals.

Kennedy is clearly unnerved by a Yale Law Review article by a black professor, Paul Butler, who suggests nullification by black juries in some cases where blacks are charged with "nonviolent, malum prohibitum offenses, including victimless crimes like narcotics offenses." (p.298) He devotes ten pages to ridiculing and rejecting Butler's stance, concluding that it encourages "an ultimately destructive sentiment of racial kinship that prompts individuals of a given race to care more about 'their own' than people of another race." (p. 310) Butler's nullification plan is no more likely to be taken seriously by blacks than Kennedy's call for nonracial jury selection processes will be by most whites. One can only surmise why he takes such umbrage to Butler's scheme while peppering his book with suggestions that race b removed from every aspect of law enforcement.

While his book is filled with a horrendous parade of examples of racial kinship by whites against blacks deemed a threat because of alleged crimes or simply because they are black, Kennedy fears Butler's argument will demolish the moral framework upon which a just system must be built. It is well that Kennedy puts his faith in the New Jerusalem of non-biased law enforcement, but he might be more understanding of less optimistic views that urge nullification and other forms of radical self-help that, while not without risks can, as has happened in so many cases, bring closer the just system he espouses.

The record of racial discrimination in death penalty jurisprudence is so devastating, particularly in interracial rape cases, that Kennedy can do little other than join in condemnation of the racial disparities and those, who, in denying that there is a racist component to the high percentage of blacks on death row, are "willful[ly] blind to invidious racial discrimination in punishment." (p. 348) The unwillingness of modern courts and the Congress to recognize and provide relief in the face of the uneven application of the death penalty is quite like the similar refusal to enact anti-lynching laws earlier in the century when no politician wanted to seem "soft on niggers." Now, the refusal to address the racist components of the death penalty is due to the reluctance of even liberal officials to appear "soft on crime." Kennedy misses the scary similarity of these politically-motivated refusals and the dangers they pose for all black people, not simply those on death row.

There is no sense in which Kennedy perceives he and other blacks are endangered by the waves of racial bias contained in his book. In his vision, the nation, moved by his willingness to stretch and offer a balanced account of the criminal justice system, will come forth, confess its wrongs, and move to remedy them. In his final chapter addressing the War on Drugs, Kennedy prostrates himself on the altar of balanced comment. He spends several pages taking to task a law review article by Professor Dorothy Roberts that severely criticizes the prosecution of mainly black women for fetal abuse who have transmitted their drug addictions to their newborns. Roberts argues that: "Poor Black women have been selected for punishment as a result of an inseparable combination of their gender, race, and economic status."13 At the conclusion of his lengthy rebuttal, Kennedy claims he is not in favor of prosecuting pregnant drug abusers, but is taking to task those opponents of prosecution because their allegations of unconstitutional racial discrimination, in his view, have not been persuasively substantiated.

Kennedy's insistence that charges of racism should not be made unless they can be proved beyond a shadow of doubt leads him to defend the drug laws which impose penalties 100 times more serious for possession with the intent to distribute crack than powder cocaine. He devotes the balance of the book to challenging critics who argue that the incongruity in crack as opposed to cocaine sentencing is a direct result of racism. He writes, "allegations of racial discrimination have been insufficiently substantiated to delineate a constitutional violation under governing law. Second, these allegations are not only unpersuasive in courts but also counterproductive in legislature. The allegations are counterproductive in that they trigger an especially stubborn defensiveness in support of existing policy from politicians who take umbrage at being accused of having engaged in racial conduct." (p. 352)

Having taken the Supreme Court to task for not acting on a statistical study of the administration of Georgia's death penalty indicating that the odds of being condemned to death were 4.3 times greater for defendants who killed whites than for defendants who killed blacks, Kennedy refuses to recognize the far more obvious statistical disparities supporting the contention that racism is a prominent cause for the harsher sentences doled out to crack offenders, who, in 1992 were 92.6% black and only 4.7% white, as opposed to cocaine offenders, who in 1992 were 45.2% white and only 20.7% black.

While powder cocaine use is still extremely high in America, the current "War on Drugs" campaign is primarily geared toward crack used or sold in the inner city. It is frightening but no less obvious that the criminal justice system has declared war not only on drugs, but also on the inner city and all blacks who reside there. Kennedy claims that the police are protecting black communities from the ravages of crack, but they are losing the war. And neither the Congress nor the President are willing to equalize the penalties for crack and powder cocaine, not because they believe those penalties are either effective or fair, but because they fear their corrective action will be condemned by political opponents as soft on crime. The same can be said for support of the death penalty, the emasculation of habeas corpus, and the filling of prisons with young blacks sentenced for lengthy periods, often for non-violent offenses.

Kennedy, Come Home!

IN AN AFTERWORD, KENNEDY OFFERS A LAUNDRY LIST OF REFORMS officials should make to eliminate discrimination in the criminal law process. Both history and current experience refute any hope that officials and the society they serve will adopt these reforms and abandon the biased policies with which they are currently satisfied. Advocacy of the "colorblind" administration of criminal law as the means to gain equal treatment for all persons regardless of race, sounds noble, but as one of the few critical reviewers of Kennedy's book complains: "this view denies the heterogeneous, cantankerous reality that is American society. Differences in opportunity, education, experience and, yes, even race deeply inform all of our actions. Kennedy's ideal is little more than a banality until our judges, lawyers and police begin to examine more carefully their own biases in the execution of criminal law."14 He admits that "much remains to be done," but proclaims that "the administration of criminal law has changed substantially for the better over the past half century. . ." (p. 388) And, he condemns as "foolish, counterproductive, and immoral" those who maintain that conditions have not improved and that racism is a permanent and necessary component of American life.

Kennedy's optimism is belied by virtually every page of his book save those in which he is criticizing civil rights advocates for daring to suggest that affirmative action is as needed in the criminal justice system as it is in the workplace. Unsupported optimism will not alter the frightening statistics regarding black infant mortality, education, unemployment, income, wealth, family disorganization, unwed motherhood, and life expectancy. Life under these conditions is the major factor leading one-half of young, black men and an increasing number of black women into paths that lead to long terms in prison or early often violent death. Labeling these blacks "criminals," as Kennedy does, and urging the rest of us to distance ourselves from them, sacrifices them without protecting us from the dire racial conditions that threaten all Americans, white and black.

With the publication of Race, Crime, and the Law, Randall Kennedy has had almost a decade to experiment with his Politics of Respectability, reaching out to critical whites through his lectures and writings with the olive branch of sweet reasonableness. In effect, he has been saying: "We blacks have faults as well as rights. I concede the former and hope you will recognize the latter." If he can show that this approach has brought about any significant policy reform in the criminal justice system, perhaps we racial advocates should reconsider our practice of lambasting whites for the society's racism. Our efforts have certainly not slowed the growing opposition to any policies deemed of help to black people. I hope that Kennedy is able to recognize that his approach, while personally satisfying, is not making any difference in the policies and practices that are devastating black people. Indeed, it is time for him to acknowledge that his positions, however honestly held, are a comfort to conservatives and advocates of the status quo.15 I urge him to return to the hard-hitting writing filled with bite and passion with which he began his career. While those writings will not win him invitations to criticize affirmative action on the NBC's "Nightly News,"16 he will better serve those, black and white, now seriously disadvantaged by the current enforcement of criminal laws. Come home Randy! We advocates of racial justice need you on our side, not in our way.

My thanks to Keisha Ann Grey, third-year law student, New York University Law School for her valuable research assistance and writing work on an early draft of this essay.


* Randall Kennedy, Race, Crime and the Law, New York, Pantheon Books, 1997-538pp. return

  1. See, e.g., Randall Kennedy, "Race Relations Law and the Tradition of Celebration: The Case of Professor Schmidt," 86 Columbia Law Review 1622, 1622 (1986),(attacking the practice of hailing the works of Supreme Court justices with little regard to their anti-black decisions); Randall Kennedy, "Persuasion and Distrust: A Comment on the Affirmative Action Debate," 99 Harvard Law Review 1327 (1986),(refuting arguments that "affirmative action has not opened opportunities for blue collar black workers" and disputing that "affirmative action should be provided only to the most deprived strata of the black community"); Randall Kennedy, "McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court," 101 Harvard Law Review, 1388 (1988),(condemning the Supreme Court's requirement of intentional discrimination in capital cases a hopelessly inadequate tool to address modern forms of racial oppression). return

  2. See, e.g., Stephan Thernstrom & Abigail Thernstrom, America in Black and White (Simon & Schuster, 1997), acknowledging the harmfulness of historic racial discrimination but, like Kennedy, predicting a bright future if we will only get rid of all racial preferences. return

  3. Randall Kennedy, "Racial Critiques of Legal Academia," 102 Harvard Law Review, 1745 (1989) return

  4. See, e.g., Critical Race Theory: The Key Writings That Formed the Movement (Kimberle Crenshaw, Neil Gotanda, Gary Peller, Kendall Thomas, eds. (The New Press, New York, 1995); Critical Theory: The Cutting Edge, Richard Delgado, ed. (Temple University Press, 1995). return

  5. See, e.g. Lloyd Cohen, "A Different Black Voice in Legal Scholarship," 37 New York Law School Law Review, 322 (1992),("Professor Kennedy's thesis or presentation . . . . is merely a very thorough, scholarly, well argued, and well written essay. It is written in the only "voice" that ultimately matters in legal literature, that of the reasonable and articulate scholar. That is enough to sharply distinguish it from the works that it criticizes."). return

  6. Colloquy: Response to Randall Kennedy's Racial Critiques of Legal Academia: Leslie G. Espinoza, Masks and Other Disguises: Exposing Legal Academia, 103 Harvard Law Review, 1878, 1885-86 (1990),("The strength of Critical Race Scholarship is its identification of the commonality of minority experience. It is a shared courage to be different. . . . Kennedy's call for individualism reinforces exclusion by delegitimating the commonality of the experience of otherness many minorities feel with other minorities and express in their scholarship. Although there is much individual divergence, focusing on the individual before we recapture that which is our shared difference would result in a cacophony of voices unrecognized, indecipherable, and overwhelmed by the dominant discourse.

    Richard Delgado, Mindset and Metaphor, 103 Harvard Law Review, 1872 (1990), ("his deployment of the two approaches -- at times scientific, rational, meritocratic, at other times the direct opposite -- makes us question his sincerity. Both modes of attack have the same bottom line -- the empowered remain empowered, while the disempowered are rendered even more so. . . .The discourse of powerlessness is used against the powerless; that of power, in defense of the powerful. Each approach could be used to attack the status quo (as many critics and some mainstream liberals have done). But when used together to defend the current system, one wonders about the author's objectivity and consistency.") return

  7. Milner Ball, The Legal Academy and Minority Scholars, 103 Harvard Law Review, 1856, 1859 n.30 (1990) ("Stories create worlds, characters, and experiences and invite us to recreate them in good readings."). return

  8. Charles Rothfeld, "Minority Critic Stirs Debate on Minority Writing," New York Times, Jan. 5, 1990, Sec. B; Page 6, Col. 3. return

  9. Derrick Bell, New York Times, Jan. 26, 1990, at A14 (letter to editor). return

  10. Paul Butler, "(Color) Blind Faith: the Tragedy of Race, Crime, and the Law," 111 Harvard Law Review, 1270(1998),(comparing the militant positions Kennedy took in his earlier writing with his apologetic posture on current discrimination issues in his recent book); Kim Taylor Thompson, "The Politics of Common Ground," 111 Harvard Law Review, 1306, 1307-08 (1998),(examining how Kennedy's "politics divorce him from the intricate realities of discrimination and ultimately drive him to conclude that the path to social justice requires minimizing racial differences."). But see, Akhil Reed Amar, "Three Cheers (And Two Quibbles) for Professor Kennedy" 111 Harvard Law Review, (1256), (hailing Kennedy for a "great and wise book" that rhetorically and politically places him mid-way between his mentor, Thurgood Marshall and Marshall's successor, Clarence Thomas). return

  11. Paul Butler, supra note 9 at 1270. return

  12. A series of these atrocities are summarized in"Nigger Free" in Derrick Bell, Gospel Choirs: Psalms of Survival in an Alien Land Called Home, 115-140 (Basic Books, 1996). return

  13. Dorothy Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right to Privacy, 104 Harvard Law Review, 1419 (1991). return

  14. Colin Crawford, "Should Justice Be Colorblind?", Newsday, p. G12 (July 27,1997). return

  15. With only a cursory search, I found two dozen reviews of Kennedy's book, virtually all of them lauding the book as objective, fair-minded, and nuanced. The New York Times reviewed the book in both its daily edition, Richard Bernstein, "Trumping the 'Race Card' With Careful Analysis," NY Times, Sec, C, p. 17, col. 1 (May 21, 1997),("Kennedy has written a book that is deeply informed, all encompassing in its transracial humanity, and firmly anchored in a kind of impassioned common sense."), and its Sunday Book Review Section, Roger Parloff, Radically Neutral, NY Times, Sec. 7, p. 16, col. 2 (June 8, 1997), ("This is an admirable, courageous and meticulously fair and honest book."). return

  16. Tom Brokaw, "Harvard Law Professor and Author Randall Kennedy Discusses His Views on American Race Relations" (June 10, 1997). return

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