UNEQUAL JUSTICE

Although the American criminal justice system has a long history of racial
bias, the United States is only now starting to take an honest look at the
problem.

THANKS TO the New York police force, Abner Louima and Amadou Diallo
have become household names. Thanks to state police in New Jersey,
Maryland and elsewhere, "Driving While Black" has entered the general
lexicon. For the moment, the nation seems to be taking seriously the
issue of racial bias in the criminal justice system. It's about time.

The issue is not new. Were it not for some of its dated rhetoric, the
1968 Kerner Commission Report, which discussed the causes of the urban
riots of the mid- and late 1960s, could well be a description of many
of our cities today.

"Negroes firmly believe that police brutality and harassment occur
repeatedly in Negro neighborhoods. This belief is unquestionably one
of the major reasons for intense Negro resentment against the police,"
the report said, adding:

"Physical abuse is only one source of aggravation in the ghetto. In
nearly every city surveyed, the Commission heard complaints of
harassment of interracial couples, dispersal of social street gatherings
and the stopping of Negroes on foot or in cars without objective
basis."

Often, the patterns of harassment were more than isolated incidents of
sidewalk justice dispensed by rogue cops. In fact, they reflected a
widespread pattern of police abuses rooted in departmental policies.
In some cases, police departments created roving task forces that
swooped down on high-crime neighborhoods and conducted indiscriminate
street stops and searches.

"Police administrators, pressed by public concern about crime, have
instituted such patrol practices often without weighing their
tension-creating effects and the resulting relationship to civil
disorder," the report said.

As the riots of the 1960s taught us, nothing corrodes public trust and
faith in the criminal justice system like perceptions of bias.
Unfortunately, those perceptions are as well-grounded today as they
were then. Consider these facts:

During a three-year period, from 1995 through 1997, 70 percent of
those stopped on Interstate 95 in Maryland were black, though black
motorists constitute only 17.5 percent of the speeders.

During a 10-year period in Illinois, from 1987 to 1997, police in a
special drug-interdiction unit stopped African-Americans at a rate
double their presence on the roads, and Hispanics at a rate eight
times greater than their presence on the road.

Last month, New Jersey Gov. Christine Todd Whitman admitted that state
troopers there had been using a racial profile to stop motorists, and
two troopers were charged with falsifying their records to hide their
discrimination.

Blacks are only 12 percent of the general population, but more than
half of the nation's incarcerated population.

One out of every three young black men from age 20 to 29 is under
criminal justice supervision, either in prison or jail or on probation
or parole.

For every black man who graduates from college each year, 100 are
arrested.

Much of what drives these disparities is the war on drugs. According
to the United States Public Health Service, African-Americans make up
14 percent of the nation's illicit drug users, roughly equal to their
representation in the general population. Yet African-Americans are 35
percent of those arrested for drug possession, 55 percent of those
convicted for drug possession, and 74 percent of those sentenced to
prison for drug possession. Thus, for a crime they commit at a rate no
greater than any other group, blacks are imprisoned at a rate six
times their representation in the U.S. population (12 percent, in the
1990 Census).

Unacceptable stereotypes

The racial character of the prison population, in turn, affects
profiling. It leads police officers (and, indeed, all of us) to be
more suspicious of minorities than of white citizens. For some crimes
(although not for drug use), the greater suspicion is not entirely
irrational, because there is evidence that minorities are more likely
than whites to commit certain crimes, just as the young are more
likely than the old, and men more than women. But the fact that such
stereotypes might be minimally rational does not make them acceptable.

Relying on racial stereotypes is not necessary to good police work.
The comparative statistics regarding blacks and whites are drawn from
the very small subset of blacks and whites who engage in criminal
conduct. Because most people of all races do not commit crimes, using
race as a proxy for suspicion will necessarily sweep in large numbers
of innocents. Every year, for example, approximately 98 percent of
African-Americans are not arrested for any crime. And while officers
are watching people of particular races, they will miss offenders of
other races.

Most important, relying on race as a factor of suspicion violates the
first principle of criminal law: individual responsibility. The
state's authority to take citizens' liberty -- and, in extreme cases,
their lives -- turns on the premise that all are equal before the law.
Racial generalizations fail to treat people as individuals. As a
result, policies that tolerate racial profiling undermine the criminal
law's legitimacy.

How, then, do we restore legitimacy to a criminal justice system that
has fostered so much skepticism and alienation among minorities?

First, government officials must make absolutely clear that racial
profiling is unacceptable. Some police chiefs have said so, but others
have tolerated the practice through their silence. Some courts have
said racial profiling is unconstitutional, but others have said it's
permissible as long as race is not the sole factor, a position that is
indefensible as a matter of constitutional law. The Supreme Court has
never addressed the question. So long as the practice is not clearly
condemned, police officers will continue to do it, in part because it
is not entirely irrational.

Second, police departments must be willing to lay bare the
demographics of their enforcement tactics. The absence of publicly
available data exacerbates the racial divisions on this issue. It allows
many in the white majority to ignore or minimize the problem while
leading many minorities to fear the worst. And without reporting, the
police cannot be held accountable.

Common struggle

Third, police departments must be made more representative of the
communities they serve. The NYPD street crimes unit that shot and
killed Amadou Diallo was a mostly white force patrolling mostly
minority neighborhoods. Increasing diversity is not sufficient in
itself, but it increases the likelihood that communities and police
will see themselves as friends in a common struggle, rather than enemies.

Finally, and fundamentally, we need to think beyond policing. It
sometimes appears that the only public resources that the majority is
eager to supply to the inner cities are more (and more aggressive)
police officers. But, if similar levels of crime were occurring in
white neighborhoods, and large numbers of white children were under
criminal-justice supervision, isn't it likely that we would be hearing
calls for different kinds of social investments, such as better schools,
more job training, better after-care programs and drug treatment?

To restore legitimacy, the majority needs to show that it is willing
to invest in something other than the strong arm of the law.

David Cole, a law professor at Georgetown University and
Senior Justice Fellow at the Center for Crime, Communities and
Culture, is author of "No Equal Justice: Race and Class in the
American Criminal Justice System."