Justice for Blacks?

1.

African-Americans make up an eighth of the population, but they occupy about half the places in American prisons. This figure, as Michael Tonry, the author of Malign Neglect and a professor of law and public policy at the University of Minnesota, writes, “greatly underestimates” the vast disproportion of blacks, particularly young black men, caught up in the criminal justice system.¹

In 1990, of every 100,000 whites in the US, 289 were in prison; of every 100,000 blacks, there were 1,860 in prison. Jerome Miller, a social worker and former head of the juvenile justice detention systems in Massachusetts and Illinois and author of Search and Destroy, reports that in Los Angeles in 1991, nearly one third of black men in their twenties had spent some time in jail. In Baltimore in 1992, 56 percent of black men aged eighteen to thirty-five were either imprisoned, on parole, out on bail, or had warrants out for their arrest. Young black men are also disproportionately victims of violence. Elliott Currie, a criminologist who teaches at Berkeley, cites a study by Donald Schwartz of the University of Pennsylvania medical school showing that over a four-year period, 40 percent of young black men from inner-city neighborhoods in Philadelphia “suffered a violent assault serious enough to send them to a hospital emergency room.”²

While the authors of the three books under review take very different political positions, none questions the fact that, in Randall Kennedy’s words, “relative to their proportion of the population, blacks are more likely than whites to commit street crimes.” Nor do these writers suggest a solution to the problem of black crime. Instead all three are concerned with the poisonous secondary effects that black crime has on race relations, politics, and jurisprudence. Blacks complain that whites treat them as potential criminals. Whites complain that blacks put loyalty to race over loyalty to the criminal justice system. Such incidents as the Tawana Brawley hoax and the cases of Charles Stuart and Susan Smith, who each gave false testimony accusing an imaginary black man of the murders they had themselves committed, periodically inflame one set of grievances while they are going on and another set after they have been exposed. Meanwhile, even while crime rates are falling, local and national governments are committing more and more of their financial resources to prison construction, shrinking the revenue available for other public services.

What has served to intensify the racial disparity in prisons since the early 1980s is the federal “war on drugs,” and particularly the Anti-Drug Abuse Act of 1986, passed after the death from a drug overdose of a college basketball star. The Anti-Drug Abuse Act imposed extremely harsh penalties on users and dealers of crack cocaine. Federal law now requires judges, in sentencing drug offenders, to treat one gram of crack as the equal of one hundred grams of cocaine—a distinction that Tonry insists has nothing to do with the power of the two drugs. Since more than 90 percent of crack defendants are black (and only 20 percent of those accused of possession of powder cocaine are black), the distinction has had the effect of increasing the disproportion of blacks in prison still further.

The percentage of drug offenders in the federal prison population rose from 25 in 1980 to 58 in 1992, and during that time the proportion of prisoners who were black steadily increased as well. Tonry estimates that the number of blacks in prison has tripled since 1980.³ Because the number of violent crimes by blacks has not grown during that time, it follows that the result of the war on drugs, if not the intention, has been to increase the black prison population rather than to reduce black crime.

Search and Destroy was written in reaction to the crime policies of the last decade. Jerome Miller believes that since the Eighties criminal justice authorities have been carrying out a politically motivated campaign to imprison masses of young black men. “The centerpiece of law enforcement was its preoccupation with highly visible groups who could be relatively easily and publicly arrested,” he writes. “The crown jewel was the handcuffed black youth or young men paraded before TV cameras so all might behold this symbol of lawlessness and disorder.” Miller regards the present system of criminal justice as a “rite,” which “may exist not so much to lower crime as to reassure the larger society that its metaphors regarding offenders in general, and the black male offender in particular, are sustained. Cutting actual crime seems beside the point.” His book contains several comparisons between the contemporary United States and Hitler’s Germany and the Soviet Union under Stalin.

Apart from his overheated rhetoric, Miller is in what was once the mainstream in thinking about crime. The position he expresses in his book shows the influence of the classic work on crime of the University of Chicago sociologists of the 1920s and 1930s, such as Robert E. Park, Ernest Burgess, and Clifford Shaw, who belonged to a tradition of liberal, meliorist thinking about crime that reaches back into the late nineteenth century, when Jacob Riis and Jane Addams ventured into the slums with a view to improving the lives of poor people, and turning young men away from crime to legitimate pursuits. The Chicago sociologists merged that tradition with academic research. Shaw, for example, did his fieldwork in the streets, finding individual criminals to study. He interviewed them extensively, producing case histories, with titles like The Jack-Roller: A Delinquent Boy’s Own Story, which ended by triumphantly reporting that the lad had been set on a straight course through intervention by social workers and placement in a foster home. In his most important work, Juvenile Delinquency and Urban Areas, Shaw pointed out that certain neighborhoods in Chicago, those with the highest proportions of poor people and immigrants, had the highest crime rates. He believed that adverse social conditions, not individual pathology, were the main cause of crime.

Interviewing his subjects face to face created an empathy with criminals, especially juveniles, who, Shaw thought, could be put right by education, economic opportunity, and “participation in the life of conventional social groups.” There is a direct line of descent from the Chicago School sociologists to many of the academic criminologists of the 1960s, such as Lloyd Ohlin, who was himself trained at the University of Chicago and later became a professor of social work at Columbia, and Richard Cloward, a colleague of Ohlin’s at Columbia, both of whom were important advisors for Lyndon Johnson’s War on Poverty. Even more than Johnson, Robert Kennedy, who in the early 1960s headed the President’s Council on Juvenile Delinquency, believed that young criminals from poor neighborhoods could be reformed through government programs to improve social conditions.

Today the liberal view that crime can best be reduced by bettering the lot of the poor, and that many criminals can be reformed by supportive parole officers and social workers, has virtually no public acceptance. The most influential experts on crime today are conservatives like James Q. Wilson (not a criminologist but a political scientist, as Miller reminds us) and John DiIulio, a professor of public policy at Princeton, both of whom are more concerned with crime victims than with criminals, and believe that punishment, not rehabilitation, is the way to reduce crime.

In 1985 Wilson and Richard Herrnstein published a book called Crime and Human Nature, which revived theories of an innate predisposition to criminality that the Chicago sociologists had thought they had laid to rest three quarters of a century ago. Everybody knows that criminals are disproportionately male and young; yet Wilson and Herrnstein also explored whether body type and race (in the genetic sense) might be predictors of crime. It is difficult to estimate the effect of the idea that what Wilson and Herrnstein call “constitutional factors” in people cause crime, because no politician or policymaker would dare to voice it directly. Still, Wilson, who wrote in Crime and Human Nature that “the evidence leaves no doubt that constitutional traits correlate with criminal behavior,” is frequently consulted, and cited, by Republican politicians, including Mayor Rudolph Giuliani of New York City. Virtually no Democratic politician would publicly express the view that greater social opportunity and rehabilitation reduces crime.

Miller is troubled that academics writing on crime today rarely meet their subjects at close hand and tell their stories (although in his own book he does not do so either). Instead, he says, books by academic criminologists usually consist of computerized analyses of crime statistics that attempt to determine which of a series of variables correlates most closely with changes in the crime rate. By becoming more and more dependent on statistics, criminologists have deprived black criminals today of the empathetic treatment given the Chicago School’s criminals, who were mostly white immigrants.

It also bothers Miller that in the current atmosphere conservative politicians and policymakers produce tendentious statistics that the press accepts unquestioningly. For example, in 1992, William Barr, the US attorney general, claimed that the imprisonment of each convicted criminal saves society $400,000 a year, a figure computed on the basis that out of jail the average prisoner would commit more than 200 crimes a year. And in 1994, John DiIulio wrote in The Wall Street Journal that “more than 95 percent of state prisoners are violent criminals, repeat criminals (with two or more felony convictions), or violent repeat criminals.” DiIulio got this figure by including as “repeat offenders” people who were in jail for parole violations or minor drug crimes. Tonry, citing a convincing Justice Department study from 1991, says that about two fifths of state prisoners are in jail for the first time; while Elliott Currie points out that a fifth of state prisoners have no record of violent crime but are imprisoned for minor drug and other offenses. One can grasp the heart of the crime debate by turning these statistics around: while DiIulio seems prone to exaggeration and unreliable to professional criminologists, the criminologists find it hard to acknowledge that most state prisoners are, in fact, violent criminals.

For the most part Search and Destroy is a long wail of outrage. Yet it makes one useful point: if we continue to put a large portion of the adolescent black male population in jail for nonviolent offenses, including drug possession, the long-term effect may be to increase crime, not decrease it. Prison has become the main socializing institution for young black men. “The central abiding reality in our inner cities is that most of the young men who live in them can anticipate being ushered through a series of hothouses for sociopathy—prisons, jails, and reform schools,” Miller writes. “There they will learn to nurture the very deficiencies in human interchange that will subsequently be labeled as pathological.” The idea that early contact with the criminal justice system is itself a generator of crime has some statistical support: Miller cites a study by two sociologists, John H. Laub and Robert J. Sampson, showing that juvenile offenders are most likely to turn away from crime as adults if they find stable jobs and marry, both of which become less likely the longer they stay in jail.

2.

Race, Crime, and the Law is Randall Kennedy’s first book, but he has long been well known as a leading member of the rising generation of black public intellectuals. The son of a judge, educated and trained at Princeton and Yale Law School, a Rhodes Scholar, and Supreme Court clerk to Thurgood Marshall, Kennedy is now a professor at Harvard Law School and the founder and editor of Reconstruction, a quarterly journal on race relations. He is usually described as a “moderate,” an accurate but reductive term which doesn’t quite do justice to his commitment to calm, reasoned discourse on racial matters, in which the participants would argue from principles rather than from racial loyalty.

By announcing his intention to “clear space for a shared discussion” in which all the “contending ideological camps” might be able to agree, Kennedy is clearly attempting to apply his commitment to reasoned discussion to the subject of black crime. The first third of his book is an account, case by case, of the history of racial bias in American law enforcement. He touches on most of the notorious outrages visited upon blacks by whites, especially in the Jim Crow South, and upheld in the courts. It is a litany in which some of the names are familiar but the details, when recounted, have fresh power to horrify. The Scottsboro boys, nine black Alabama teenagers, were convicted three separate times in the mid-1930s of a rape they almost certainly did not commit, in trials that, in Kennedy’s words, “were parodies of due process,” including many flagrantly prejudiced statements made to all-white juries by prosecutors and by judges. Emmett Till, a 15-year-old black boy from Chicago who, while visiting relatives in Mississippi, flirted with a white store clerk, was tortured and then murdered by the clerk’s husband and another man, who were acquitted by an all-white jury after only an hour of deliberation, even though they had initially confessed to the crime.

Black prisoners were regularly conscripted or leased into brutal forced labor arrangements; to quote Kennedy on one notorious example, “In 1877- 1880, of 285 convicts sent to build a railroad in South Carolina, 128, or 44.9 per cent, died.” In a 1934 Mississippi case, the state supreme court upheld the murder convictions of three black men, Ed Brown, Arthur Ellington, and Henry Shields, even though their confessions had been extracted by police torture—whipping with leather straps, hanging by ropes from trees—that the police proudly admitted to in court. Kennedy’s careful account of these incidents, and many more, goes a long way toward explaining the roots of black mistrust of the criminal justice system. By citing such cases he also explains the liberal tendency to think about crime and race by concentrating on the unjustly treated black defendant.

But Kennedy is up to something richer and more complicated than simply demonstrating the unfairness of the criminal justice system. There are three distinct black interest groups involved in criminal matters: accused criminals, crime victims (who are also disproportionately black), and people who have no direct contact with crime but are treated differently by whites because black crime is so high. Kennedy does not discuss each category systematically. He does, however, in the course of his book, demonstrate an understanding of the suffering of each of the three groups, while making it clear that his main concern is with victims of crime. “The principal injury suffered by African-Americans in relation to criminal matters is not overenforcement but underenforcement of the laws,” he writes. “The most lethal danger currently facing African-Americans in their day-to-day lives is not white, racist officials of the state but private, violent criminals (typically black, since crime is mainly intraracial) who attack the most vulnerable without regard to racial identity.”

Before the Civil War, Kennedy notes, “criminal law in the slave states explicitly withheld protection from slaves with respect to many offenses,” and even today, he says judiciously, “there does exist a kernel of truth in the general complaint that, in all too many instances, networks of decision makers…respond differently—more attentively—when whites rather than blacks are victimized by crime or other injurious activity.” By concentrating so much on the black crime victim, and by refusing to accept that blacks are simply oppressed by the criminal justice system, Kennedy effectively changes the grounds of discussion. As he points out, “To a degree unprecedented in American history, blacks are exercising authority as jurors, attorneys, and judges.”

The rest of his book is a highly critical account of officials of both races in the criminal justice system, who tolerate any sort of different treatment of blacks (whether tougher or easier) on account of their race. Dorothy Roberts, a law professor, elicits Kennedy’s scorn for arguing that crack-addicted black women should be exempt from prosecution for fetal abuse. Kennedy criticizes the US Sentencing Commission for advocating easing the punishment of crack offenses solely because it falls so heavily on blacks. He reports with evident disapproval the statement made by Anthony Amsterdam of the University of Pennsylvania, when arguing a case before the Supreme Court, that it would be unconstitutional for a black man accused of raping a white woman in Arkansas ever to be sentenced to death, but constitutional for the same sentence to be given to a white man accused of the same crime.

Kennedy is striving for a consistent position of colorblindness on the part of the police and the courts. He is strongly opposed to allowing police to stop suspects solely on the ground of their race, something the courts have repeatedly sanctioned. In State v. Dean, for example, police in Phoenix questioned a man partly because “he was a Mexican male in a predominately white neighborhood,” and in United States v. Weaver, a drug enforcement agent in Kansas City questioned a passenger getting off a plane from Los Angeles because of several suspicious factors, one of which was that he was black. In United States v. Martinez-Fuerte, Border Patrol officers stopped and searched a man because he looked Hispanic. In all of these cases the courts ruled against the plaintiffs. Kennedy, in criticizing the decisions, insists, “Race is different. In America, the making of racial distinctions has proven to be more destructive and more popularly distasteful than other lines of social stratification.” Therefore, “taking race into account in a small, marginal, even infinitesimal amount still constitutes racial discrimination.”

Any permitted use of race as a consideration in police procedure will have, Kennedy warns, an enormous reverberating effect in black America. It “nourishes powerful feelings of racial grievance against law enforcement authorities that are prevalent in every strata of black communities” and “causes people who might otherwise be of assistance to police to avoid them, to decline to cooperate with police investigations, to assume bad faith or dishonesty on the part of police officers, and to teach others that such reactions are prudent lessons of survival on the streets.” Kennedy’s passion to keep race separate from police work is as strong as it is because he believes in the possibility of a black America that trusts the justice system, and he sees protecting black people from crime as the mission of the police. Part of his intention in this book is to convince his black readers that they ought to put aside blind racial loyalty.

Kennedy applies the ideal of colorblindness to the main section of his book, a critical discussion of courtroom procedure. Often lawyers in criminal trials use their peremptory challenges to reject potential jurors on the grounds of their race, and this, he believes, they should not be allowed to do. The Supreme Court, in the 1986 case of Batson v. Kentucky, has taken the same position, but Kennedy cites some worrisome reports that many prosecutors around the country are ignoring the decision and continuing to make race-based peremptory strikes, even though they do not identify them as such. (That is, they systematically dismiss black jurors on the pretext of other reasons than race; in one example Kennedy cites, a prosecutor rejected a thirty-four-year-old black man supposedly for being too young, while allowing an eighteen-year-old white man to serve.)

Nor should judges allow lawyers to appeal to a jury’s racial loyalties, something Kennedy presents as a sin far more often committed by white lawyers than black. Yet regarding what most people think of as the most notorious recent case of jury nullification, the acquittal of O.J. Simpson, Kennedy has a more complicated view. He points out that in Johnnie Cochran’s famous summation to the jury, in which he “played the race card,” he did not ask for nullification per se: to do that means conceding the defendant’s guilt but asking for an acquittal anyway because he is black. Cochran merely asked the jury to consider sending a message about racial bias in police work as an additional reason to acquit, which is, Kennedy believes, quite different from its being the only reason. (Of course, Kennedy realizes that he is making a legal distinction; in practical terms, Cochran probably won over all the incipient nullifiers on the jury without literally calling for nullification.)

Kennedy opposes efforts to increase black representation on juries—not only through formal quota systems but also through changes of venue to neighborhoods where the jury pool is blacker, and through dropping juror qualifications that tend to whiten the pool. He supports such restrictive policies as allowing only registered voters, or high school graduates, or people with no past felony convictions, or people who have filled out a mailed questionnaire successfully, to serve on juries. All of these restrictions have the effect of disproportionately excluding blacks, but he finds them defensible: “Jury service entails (or should entail) the application of certain abilities that some persons, unfortunately, do not have.” Among these abilities, he mentions familiarity with written and spoken English, without which a juror cannot independently evaluate evidence.

Kennedy’s strict intellectual honesty sometimes leads him to take positions in support of something commonly described as racist, because he finds that the epithet is being used sloppily. He finds the Anti-Drug Abuse Act acceptable, largely because it was passed for other reasons than racial ones. Most of the members of the Congressional Black Caucus supported it. Crack, compared to cocaine, is, anyway, “more addictive, more closely linked to criminal violence, more perilous to the health of users, and more widely accessible.” Kennedy finds the initial acquittal of the police officers in the Rodney King case, which led to the 1992 Los Angeles riot and is commonly described as a racist verdict, to be arguably justifiable: before the famous videotape began capturing the struggle, he recalls, King tried to run away from police who had asked him to pull over for speeding, and when he was finally caught he, in Kennedy’s words, “not only refused to follow police instructions but resisted officers in such a way as to justify their initial use of force against him.” Kennedy concedes that the much-replayed videotape of the incident “appeared to show an unambiguous episode of naked brutality,” but says it did not constitute clear evidence of criminal intent on the part of the officers, which was the key legal issue.

Kennedy’s reverence for the idea of “a legal system that looks beyond looks” is not widely shared by American blacks. Ethnic loyalty (a loyalty which is hardly confined to African-Americans) tends to be a more powerful force than abstract principle. Another reason for this loyalty among blacks is the siege mentality that has been created by the current racial lopsidedness of the population in the criminal justice system. History, as Kennedy demonstrates, is also a factor. During the long struggle for equal legal rights, many black leaders (Kennedy lists Martin Luther King, Robert Moses, Fannie Lou Hamer, Rosa Parks, and John Lewis) consciously violated the Jim Crow laws and so became, officially speaking, criminals. “By using the criminal law against these and others involved in resisting racial oppression,” Kennedy writes,

officials have destabilized the moral meaning of conforming to law and violating it. That is why being a ‘good,’ law-abiding Negro came to be associated with acquiescence to oppression…and why being a ‘crazy,’ law-breaking ‘bad nigger’ came to be associated with laudable rebelliousness.

Still, he believes that blacks will be far better off trusting a colorblind system than trying to create a friendly color-conscious one. “Along that road lies moral and political disaster,” he writes: if race is considered over principle, whites, who are much more numerous than blacks, will always win.

Kennedy’s most vehement disagreement is with Paul Butler, a law professor at George Washington University who is the country’s best-known advocate of jury nullification by blacks, and a frequent guest on national television shows. In a criminal case with a nonviolent black defendant, Butler believes, black jurors should find the defendant not guilty because “the decision as to what kind of conduct by African-Americans ought to be punished is better made by African-Americans themselves.” Kennedy sees this as a strategy not only guaranteed to fail, but dangerous: “If a sufficient number of people were to follow his proposal…conditions might be brought into existence that would make his caricature of American society a self-fulfilling prophecy.” His main objection, though, is based purely on principle:

The implications of Butler’s theory for American race relations are staggering. If it were believed and acted upon, his conception of the responsibility of blacks would impose upon African-Americans a disability from which they were free even during the era of slavery: the disability of being perceived as people wholly devoid of moral choice and thus blameless for purposes of retribution, the same way that infants, the insane, and animals are typically viewed as morally blameless.

Still, in Race, Crime and the Law Kennedy endorses race-conscious justice in one instance. That is the imposition of the death penalty. In McCleskey v. Kemp, a Georgia case involving a black man convicted of killing a white police officer who was trying to stop him from robbing a store and sentenced to death, lawyers for the condemned man commissioned a statistical study of sentencing patterns in capital cases. The study found not much discrimination on the basis of the race of the defendant, but a great deal on the basis of the race of the victim: people convicted of killing whites were eleven times more likely to get the death penalty than people convicted of killing blacks. In 1987 the Supreme Court upheld the imposition of the death sentence in the case on the grounds that, study or no study, race had not been proved to be a factor in this particular sentencing.

Kennedy disagrees with the majority opinion by Justice Lewis Powell, calling it “vacuous,” “predictable,” “demagogic,” and characterized by “resolute evasiveness.” To Kennedy, Powell was far too facile in assuming that race had not been a factor in the sentencing, given the weight not only of the statistical study but of Georgia’s long history of discrimination in capital cases.

In capital cases he proposes the following policy for government officials: “Either respond as vigorously to the murders of blacks by condemning perpetrators of such crimes to death (as is done to murderers of whites), or relinquish the power to put anyone to death.” Kennedy never declares his opposition to the death penalty as a matter of general principle. It is only the racially skewed way in which the death penalty is meted out that he opposes—so deeply as to make any use of that punishment at all, to his mind, invalid.

How can Kennedy even consider what he freely admits is a “race-conscious plan” of the kind he stoutly opposes everywhere else in the criminal justice system? He says the argument for a racial “level-up solution” in capital cases “rests heavily upon the ‘death is different’ distinction,” although, in a passage I have quoted earlier (“Race is different”), he argued for colorblindness on the same grounds. Kennedy makes an exception in death penalty cases not only because of the unique gravity and irrevocability of the punishment, but because of the disrespect for the families of black murder victims that the disproportionate sentencing statistics imply. It isn’t the idea of blacks on death row that most troubles Kennedy; it’s the idea of murderers of blacks who aren’t on death row, and would be if they had killed whites instead. He acknowledges that his “level-up solution” could turn into a grisly quota system by forcing the executions of killers of blacks so that their punishment would be proportionate with that of killers of whites. To him this may be “a danger worth risking in order to encourage officials to take more seriously the security and suffering of black communities.”

What is consistent and refreshing about this position, besides Kennedy’s candor, is his concern for the safety of law-abiding people in black communities, a note that, unfortunately, is rarely struck in most liberal writing on race and crime. Kennedy’s concern for the welfare of law-abiding blacks may explain why, on drug issues, his position is practically a mirror image of the one he takes on capital sentencing. The racial disproportion in drug convictions is nearly as high as in capital convictions, and the absolute numbers are far higher—but here the statistical disparities do not seem to trouble him. In 1994 a federal judge in Missouri, Clyde Cahill, refused to sentence a crack offender to the ten-year sentence the Anti-Drug Abuse Act mandates, on the grounds that the act expresses “unconscious racism.” Cahill’s decision draws a long, stern, and just rebuke from Kennedy: “Once the racism charge is loosed, considerations of personal honor and public reputation elevate the stakes and polarize the antagonists…. It tends to dominate all other concerns.”

Kennedy’s optimism that public discussion of race can take place without the charge of racism hovering somewhere in the vicinity is unusual, and it is surely admirable. But while Kennedy showed a tolerance for considering statistical racial disparities in cases where the death penalty is at issue even when racist intent can’t be proved, he won’t consider similar disparities in drug cases. One reason for the contradiction may be that the effect of locking up black crack dealers and users en masse is to make black neighborhoods safer. The effect of racial disparity in capital sentencing, which favors black murderers of black victims, would arguably be to make them less safe, because it would encourage the idea that killing an African-American is a crime punishable only by prison sentence (probably followed by parole), not by death.

There is a case to be made against the drug laws, and it is Michael Tonry, I think, who makes it most effectively. The war on drugs, Tonry writes, “should never have been launched.” It did not eliminate drug dealing or cause crack to become unavailable on the streets, as it was supposed to do. Mandatory sentencing provisions have generated a severe overcommitment of public resources to the prison system. And, Tonry argues, enormously increasing the black prison population, which has been the clear result of the war on drugs, has done more harm than good. Tonry considers Kennedy’s defense of the war on drugs on the grounds that it was not designed for the purpose of punishing blacks. But he proposes instead that we embrace the principle that if a law has a clearly foreseeable effect of racial discrimination, as penalizing crack a hundred times more severely than cocaine does, then intent doesn’t matter. “Policymakers should generally treat purpose and knowledge as moral equivalents,” he writes.

A recent writer on crime, Katheryn Russell, has proposed that we adopt a vaguely defined policy she calls “affirmative race law” to ensure that blacks do not feel that the criminal justice system is their enemy.⁴ Kennedy would surely regard this idea with contempt. Some sort of “affirmative race law” would only give blacks an even deeper sense of alienation and a more adversarial, destructive relationship with the white majority. It would encourage whites in the legal system to look after their own first and think about justice second, because blacks are doing the same thing.

Still, Kennedy is not indifferent to the effect on the consciousness of American blacks when a policy that isn’t racist falls much harder on blacks than on whites. To be troubled by the racial effects of the war on drugs, and to wonder whether any crime-control benefits aren’t outweighed by creating a vast territory in black America where most fathers, brothers, husbands have criminal records, is a legitimate worry by Kennedy’s standards, since it so powerfully undermines the chances of an atmosphere of interracial trust.

The recent decline in crime rates, after the long, alarming, and socially destructive rise in the 1960s and 1970s, has been among the most salutary recent developments in American life. It conceals no hidden danger. But it may have the effect of obscuring for whites what appears to be an unrelated phenomenon, the enormous recent increase in black incarceration resulting from the war on drugs. Perhaps Kennedy is right and black Americans will generally accept the imprisonment of such a large proportion of its young men because it is the result of laws without racist intent and because it makes the streets feel safer. If he is wrong, then the interracial bitterness and mistrust that he has so admirably devoted himself to combating will, despite all the good news about crime rates, only increase.