Race, Crime, and the Law

Race, Crime, And the Law by Randall Kennedy

In Race, Crime, and the Law, Harvard law professor Randall Kennedy takes an in depth look at how issues of race link with crime and law enforcement. Kennedy investigates the system from the viewpoint that race is a significant issue in criminal justice, but also an overlooked one. Kennedy then delves into the issue by showing the problems in detail and by suggesting solutions. Via these investigations, Kennedy makes a strong argument for improvement of the criminal justice system, showing that racial discrimination needs to be eliminated. At the same time, Kennedy makes his argument in an intelligent way that reveals his awareness that he is speaking to a largely white audience.

Kennedy starts the book by noting that to deal with criminal law effectively, you first have to recognize and deal with "the complex and ferocious racial politics that surround the subject" (Kennedy 3). In stating this, Kennedy makes it clear that he sees racial politics and criminal law as obviously linked. Kennedy then goes on to say that he intends to raise and discuss the issue of race. This includes Kennedy's suggestion that the issue of race is largely overlooked. It might be present in the minds of people due to prejudice, assumptions about crime and black people, or ingrained ideas, but it is not accepted and talked about. Kennedy even states directly his belief that crime and race are so well-linked for some that a discussion of crime is automatically assumed to be a discussion of race relations. This is especially apparent when he refers to the politics of crime management. For example, Kennedy (4) notes that,

For some politicians, the law and order slogan has served as a thinly veiled code with which to signal sympathy for and solidarity with whites upset by the social, political, and cultural changes brought about by the upheavals of the 1960s, particularly the Civil Rights Revolution.

This describes Kennedy's belief that when some politicians say they will be tougher on crime, they are really saying to the prejudiced people that they will be tougher on blacks and protect the white way of life. According to Kennedy, there is no need to mention race because it is accepted by the prejudiced people that a discussion of controlling crime is a discussion of controlling blacks, while a mention of maintaining law and order means maintaining the society for white people. Kennedy then notes that there is no point trying to reach these people which such prejudice. Instead, he will appeal to those who share similar concerns. Kennedy (5) notes that he can reach,

Those drawn to law and order rhetoric because they are afraid of being victimized, seek reassurance that the government will do its utmost to protect them, and desire to express outrage at street criminals.

Kennedy's view shows that he considers that there is a gap in understanding between blacks and whites. The statement above also shows that he believes there are also points of connections. At the same time, the statement suggests the major concerns of black people. Kennedy even notes that he shares those fears. This suggests that there are concerns about being victimized and also suggests that the government may not be doing its best to protect people. The main point that Kennedy tries to make is to highlight the race issues that are present and that impact on criminal law. Kennedy considers that race issues are deeply intertwined with criminal law, yet the issues are not openly discussed, investigated, or well-understood. The other important point is that Kennedy's book is targeted to an audience of people interested in "law and order rhetoric" rather than a general audience. Essentially, Kennedy wants to add his ideas and highlight the race issues so they can be added to serious consideration of criminal law. This sets the stage for the discussion of race, crime, and the law.

One of the important points that Kennedy makes is that the law enforcement is largely considered to be racist, especially by the African-American community. Kennedy (4) refers to this as an impediment "to the enforcement of decent law and order." One of the interesting points is that Kennedy is not stating at this point that law enforcement is actually largely racist. Instead, he is simply stating that it is perceived as being racist by African-Americans. Kennedy then describes the negative outcomes of these perceptions. Kennedy describes how black attorneys choose not to work for the prosecution because they consider that this would be working for the other side. Kennedy also describes how it causes black citizens to refuse to cooperate with police or investigators because they consider that they are helping the other side. Another example given relates to black jurors, where Kennedy notes that some black jurors are skeptical of both police testimony and the statements made by white lawyers. In some cases, Kennedy suggests that black jurors will return a call of not guilty simply because they do not want to side with law enforcement or the courts, which are primarily white. These examples given by Kennedy create a clear view of the problems that occur because of perceived racism. In effect, it shows that black people consider law enforcement as something that does not involve them. It becomes a case of us and them, where us is the black community, and them is the white community that also happens to represent law enforcement. The black people consider themselves outsiders and do not trust the law enforcement system. As shown by the examples, they exclude themselves from it. This causes a breakdown in the system, where the real purpose of law enforcement is lost. For example, if a black person becomes a juror, there role is supposed to be to decide on the guilt or innocence of the accused. If the juror's is instead influenced by the race of the law enforcement officers, the judge, and the court system, then the real purpose of the court case is lost. Considering that this is the system that delivers both a decision on guilt and a punishment, this is a significant breakdown in the system. Another point important in Kennedy's examples is that the apparent racism in the system ends up feeding on itself and making the system worse. Consider the example where a black attorney does not want to work for the prosecution because they consider that this would be working for the other side. The perception results in the prosecution mainly being made up of whites. This then enhances the idea of us and them, both for other potential prosecutors and for the public. The public are likely to note that the prosecution are almost always white and assume that the system is racist. This increases the perception of inequality and makes the situation worse. In this way, perceptions of racism feed on each other and create a spiral effect, where the more racism perceived, the more separated the races becomes, and the more racist it appears to be. This shows the importance of eliminating the perception of racism in criminal law.

Kennedy argues that there is a need to rectify any problems that create a perception of racism. It must be noted that Kennedy is still not suggesting that there is any real racism occurring. Instead, he remains fixed on the idea that he is referring to apparent racism. In considering Kennedy's approach here, it appears that he is structuring his argument to meet the needs of his audience. Kennedy certainly seems to realize that he is speaking to a white audience. After all, he clearly states that criminal law is largely enforced by white people, whether it be via the actual people working in criminal law or by the government behind the decisions being made. Since Kennedy's purpose is to highlight the race issues for those involved in making decisions about law enforcement, his audience becomes mainly white. It is also noted that at the start of the book Kennedy (4) refers to how "some politicians" use law and order to "appeal covertly to anti-Negro prejudice." Kennedy then goes on to state that there is no point speaking to these people. Instead, he is speaking to the people who are not anti-Negro, but who may be confused by the issues of race. In making these statements, it seems apparent that Kennedy is very aware of his audience. He starts by showing the worst view of white racist behavior and then basically says to the reader "I know you're not like that and you'll listen and consider the issues." It is an effective way and an intelligent way to appeal to the audience of white readers. Returning to Kennedy's focus on apparent racism, rather than real racism, it seems that this is also a way of appealing to his reader. In truth, it seems that Kennedy does view society as racist. However, he also realizes that he will have little success in influencing readers if he begins by making them feel like they are racist. This explains why he continually refers to the perception of racism. This is a way of showing how racism is damaging to African-Americans and to the functioning of the legal and criminal system, but without actually making accusations of racism. Kennedy then goes on to argue that officials have to be forced to respect the rules prohibiting racial misconduct and that police and prosecutors engaged in illegitimate racial practices have to be deterred from doing so. Again, Kennedy makes the argument in such a way that he is not insulting his audience of white readers. Rather than state that the system is racist, he argues that some people act in racist ways that ruin the system. The truth might be that the entire system is racist simply because it does not strongly deter racist behaviors from occurring. Kennedy chooses not to approach the problem this way. Instead, he frames the problem by suggesting that the system overall is good, but that there are some individuals who engage in racist behaviors. The way to prevent this from happening is to put in place stronger controls, where the rules prohibiting racial misconduct need to be stronger and where punishments need to be upheld. The end result is that the system does change to become less racist. However, for the reader it appears more like this has to happen to prevent the few bad examples from marring an entire system. This is another example of Kennedy making his point in an effective way that eliminates the possibility of insulting his largely white audience. This shows both Kennedy's intelligence in making his argument and also his awareness that the system is governed by white people and is predominantly racist. Kennedy simply chooses not to openly suggest that the whole system is racist, instead framing his argument as if people are simply closed-minded to the larger issues.

It must also be noted that Kennedy does not ignore serious issues of racial discrimination. However, he does frame them so the problems seem to be a result of a system or of the individuals in that system, rather than of society itself. A good example is seen where Kennedy describes abuse of power. Kennedy describes how police officers and judges can abuse their power and engage in racial misconduct. The abuse of power occurs because they are able to engage in this behavior unchecked. The emphasis is placed on controlling the behavior of those in power and maintaining standards. Kennedy argues that if standards and control are not maintained, then people can abuse their power without consequence of any action being taken. This creates a situation where complete control is lost, with this extending to problems greater than just racist behavior. With this argument, Kennedy places serious issues of racial abuse and discrimination in a context where the problem is a lack of control and an abuse of power. This takes the focus away from the issue only as a racial one and makes it a larger problem with significant consequences for the public, regardless of whether a person is black or white. This is another example of Kennedy framing his argument in an intelligent way so that it better appeals to his argument. After all, if you show a largely white population about the problems of black people, there is a limited amount of personal concern. However, if you expand this issue so that it can also be seen as impacting the white person, it has a much higher level of personal concern and the argument gains a lot more weight. Kennedy's argument here also shows that issues of race in criminal justice are related to the larger system. They cannot be changed simply by making everyone in the system less racist and more understanding of black people. Instead, the system itself needs to have controls that limit racist behavior. In essence, Kennedy is showing that the solution is not to change the views of people, since individuals judges, prosecutors, and law enforcement officers, may still have racist ideas and the beliefs of each individual cannot be controlled. Instead, the solution is to control the behavior of individuals. This means that a prosecutor or a law enforcement officer may indeed have racist ideas. However, if the system is designed to identify racist behavior and punish it, the individual cannot act in a racist manner regardless of their own perceptions and ideas. This is a practical way of eliminating racist behavior. In addition, this is also the way that the entire criminal justice system is managed. After all, individual judges, prosecutors, and law enforcement officers, cannot have opinions and ideas forced on them, but are free to feel however they like. However, this does not mean that they can act however they like. Instead, they are governed by guidelines stating what is and is not acceptable. They are also governed by the system and by their role in it. Control then is not managed via individuals, but by the elements of the system itself. Kennedy shows that he is aware of this and makes no arguments that attempt to change racist beliefs. Instead, his focus is on making changes that prevent racist behavior. This shows that Kennedy's approach is practical and linked to making real changes in how things are done, not to trying to make changes in how people feel.