LIFE, LIBERTY AND EXCESSIVE FORCE

The police killing of Amadou Diallo and the exoneration of the four
officers who shot him have naturally set off heated debates on police
procedures and race relations in our cities. But this tragedy has
implications of a broader and more profound nature: when viewed in light of
ongoing trends in our criminal justice system, it exposes deep-seated
contradictions in our conception and practice of personal liberty.

Three of the most fundamental principles of Western liberal democracies are
at issue. One is the right to do what one pleases as long as it entails no
harm to others. Another is equal justice for all. Last is the principle
that no person or other agent, including the state, has the right to tell a
citizen what is in his or her best interest - a current of antipaternalism
that has always run far stronger in the American idea of democracy than in
other liberal Western countries.

These principles normally work well together, if none is taken to extremes,
as the Western European democracies clearly demonstrate. But developments
in America have placed them on a collision course, especially in the sphere
of criminal justice.

Of course, our liberties have to be protected from criminals among us. But
there are two complementary ways of going about this: we can take
preventive measures, like the rehabilitation of those who commit crimes, to
reduce the incidence of crime before it happens, and we can punish those
who do commit crimes, giving the police and courts strong powers of
enforcement and incarceration.

America had a history of using preventive programs prior to the 1970's -
not only those that stressed the rehabilitation of convicts, but also
others aimed at children and young people, like the home visiting program
Healthy Start, which was intended to reduce child abuse (perhaps the
greatest social cause of criminality), close supervision of juvenile
offenders and guidance programs for youths at risk of falling to crime.

But over the last three decades, rather than seeking a balance, the
American approach has become almost entirely punitive: we have the
second-highest rate of incarceration in the world (after Russia), and are
the only prominent Western democracy with the death penalty. Nonetheless,
we still have one of the highest rates of criminal activity and violence in
the world, even after taking into account the dramatic recent declines in
overall crime rates.

Nearly all criminologists consider our punitive approach a disaster. There
is no evidence that it has had any long-term impact on reducing crime, and
it is certain that excessive incarceration makes career criminals of many
of the nonviolent offenders whom we throw together with hardened, violent
ones.

Why have we taken this contradictory punitive course? Why do nearly all of
our leaders, including the ostensibly moderate Democratic front runner in
the presidential race, Al Gore, trumpet their "toughness" on crime and
defense of the death penalty?

The easy argument is that Americans are simply prone to violence as a
people. However, there might be a better, and far less ignoble, reason: our
extreme commitment to antipaternalism, to the principle that the state
should avoid telling citizens how to lead their lives. In the words of the
Supreme Court Justice Robert H. Jackson, "It is not the function of
government to keep the citizen from falling into error; it is the function
of the citizen to keep the government from falling into error."

Crime prevention measures that are proved to work well - from programs
aimed at youths at risk to therapy and rehabilitation for offenders both in
prison and after release - are all in some way paternalistic. It is not
just conservatives and tax cutters who resent such programs. They often
cause animosity in the very people they are supposed to help. Very often
these are poor people and members of racial minorities whose sense of
freedom and dignity leads them to reject such programs. (In a similar way,
studies of the remaking of welfare in recent years found a widespread and
deeply felt dislike of the social services system and its agents on the
part of welfare recipients themselves.)

Our rejection of a preventive approach, however, creates a paradox in that
we are forced to surrender more and more of our liberty to the increasingly
powerful police operations, like the street crimes unit in New York, and
the draconian laws we pass in order to guarantee safety. Unlimited power
always corrupts, and when a police officer can defend himself against the
killing of an unarmed civilian with the nearly unassailable argument that
he feared for his own life, we are edging closer to unlimited power.

In pursuing the principle of noninterference, we are eroding the principle
of doing anything we please without being blasted away by jittery agents of
the state. New York is not alone. The police corruption scandal in Los
Angeles, the erroneous death penalty verdicts in Illinois, the F.B.I.
scandal in Boston and the execution spree in Texas are all of a piece with
this national contradiction.

As for the principle of equality under the law, nobody can deny that the
probability of having our liberty violated by the police is directly
related to wealth and status. Not only are wealthy Americans treated with
greater respect by the police, but they are also less likely to be arrested
and indicted than poor Americans for similar acts, are less likely to be
found guilty if they are indicted, are less likely to be incarcerated if
they are convicted and are likely to serve less time if incarcerated. What
for a suburban white youth is a misdemeanor powder cocaine offense
punishable by probation becomes for a Hispanic or African-American crack
user a 15-year prison sentence.

Domestically, the penalty we now pay for our unequal and punitive system of
justice is the self-contradiction of our most basic liberties. As Thoreau
put it: "Whatever the human law may be, neither an individual nor a nation
can commit the least act of injustice against the obscurest individual
without having to pay the penalty for it." One result of the unequal impact
of our law-and-order stance is a deep distrust for authorities on the part
of poorer citizens of all ethnic groups - from white chauvinists who decry
the Waco disaster to African-Americans outraged over the Diallo shooting
and the beatings of Rodney King and Abner Louima.

And there may be an international price to pay as well. Coincidentally,
just hours before the Diallo verdict, the State Department released its
annual report on human rights violations, in which we condemned such
countries as China and Pakistan for violating basic freedoms. For all of
our failures and contradictions, we can still justly claim to be the land
most passionately committed to the cause of liberty.

But the Diallo trial and similar instances of growing police powers, along
with our irrational penal system and the unequal application of our
increasingly harsh laws, compromise our international status and undermine
the credibility of the nation best qualified to lead the world into a
century of global freedom.

Orlando Patterson is a professor of sociology at Harvard and the author of
"Rituals of Blood: Consequences of Slavery in Two American Centuries," the
second volume of a trilogy on race relations.