THE DOUBLE STANDARD

Inequality In Criminal Justice May Be A Good Thing
For The Favored Classes

a review of:
NO EQUAL JUSTICE
Race and Class in the American Criminal Justice System.
By David Cole. 218 pp. New York: The New Press. $25.

LAST month, four white police officers shot and killed a young unarmed
black man named Amadou Diallo in the vestibule of his Bronx tenement.
A lawyer for the officers later called the shooting justified because
Diallo fit the general description of a rape suspect and because he
appeared to be reaching for a weapon. Do you accept these reasons?
Would you accept them if Diallo had been a welldressed older white man
standing in the doorway of his Park Avenue co-op?

David Cole, a Georgetown University law professor and prominent civil
liberties advocate, says that in answering questions like these, white
Americans will count Diallo's race, age and class in the officers'
favor. They would reject the officers' reasons had the shooting
occurred on Park Avenue, but then the officers would not have sensed
danger on Park Avenue in the first place. For the white middle class,
the lesson is soothing: The law protects them. For young black men in
poor neighborhoods, the lesson is chilling: An ambiguous hand movement
in a stressful moment can legally end their lives.

As Cole sees it, this disparity reveals two levels of constitutional
rights, first class for the "privileged" and steerage for minorities
and the poor. But Cole goes farther. The disparity is no accident. Our
criminal justice system, he writes, "affirmatively depends on
inequality." The majority of Americans endorse double standards of
justice because without them we "could not enjoy as much
constitutional protection of our liberties," even as we engage in a
"policy of mass incarceration."

Cole gives two reasons that the Constitution's principled language
fails to protect all equally: race and class. Race is not supposed to
count when the police make decisions, but Cole says it is impossible
for race not to count. Because police discretion is largely unchecked,
"racial prejudice and stereotypes linking racial minorities to crime
rush to fill the void" created by the lack of judicial oversight. For
example, Cole quotes statistics showing that black drivers on the New
Jersey Turnpike are three times as likely as white drivers to be
stopped for traffic offenses. Charles Ogletree, a black Harvard Law
School professor, makes the same point more personally: "If I'm
dressed in a knit cap and a hooded jacket, I'm probable cause."

Cole's indictment goes beyond police discretion to include
prosecutors, judges, legislators and juries. In theory, the
Constitution guarantees indigent defendants effective counsel. In
reality, Supreme Court rulings have allowed judges to treat lawyers as
effective even when they conduct no investigation, fail to
cross-examine crucial witnesses, sleep during testimony or come to
court drunk.

In theory, prosecutors cannot seek to exclude potential jurors
because of their race. In reality, judges are too quick to accept
disingenuous excuses. Cole quotes a study's finding that "in almost
any situation a prosecutor can readily craft an acceptable neutral
explanation to justify striking black jurors because of their race."
Nor may race influence decisions about whom to prosecute. Yet in
reality, prosecutions of African-Americans for drug crimes can be so
disproportionately high that no raceneutral explanation seems
credible. Cole reports, for example, that in Columbus, Ohio, "black
males are less than 11 percent of the population, but account for 90
percent of drug arrests."

WITH these examples and others, "No Equal Justice" makes a strong case
that we have tolerated a law enforcement strategy that "depends on the
exploitation of race and class divisions." Cole offers three
solutions. The first two admit the mistake, then revamp the rules to
reduce the influence of race and class - are probably unrealistic,
especially as the new rules could reduce "the rights that the
privileged now enjoy." Take the traits Federal agents have used to
identify travelers who may be transporting drugs. Agents have cited
the following behavior to defend stops: The suspect was traveling
alone, he had a companion; the suspect "acted too nervous," he "acted
too calm"; the suspect was "one of first to deplane," "one of last to
deplane" or "deplaned in the middle." Cole writes that such broad
criteria "will be used disproportionately against minorities." But if
courts forbid reliance on race, some white travelers who are not now
inconvenienced will be.

Citing efforts here and abroad, Cole's third solution endorses
"community-based criminal justice." This solution focuses "on
reinforcing the community ties that deter crime in the first place,
encouraging community associations, involving the community in
punishment and rehabilitation . . . and reintegrating offenders into
society." This is the ideological antithesis of the "tough on crime"
chorus - more police with more discretion, more arrests, more
prosecutions, and more time in more prisons. In the last
quarter-century, those punitive policies have quintupled the prison
population, with nonviolent offenders accounting for much of that
increase. In Cole's view, they have also robbed criminal law of moral
legitimacy among minority groups, which lessens respect for law and
increases our dependence on brute force.

Community-based policies will be a tough sell because they have been
so easy to caricature as soft on crime. Unless voters are receptive,
politicians won't propose them. So Cole's remedies require an
enlightened electorate. A promising sign is that the "privileged" many
also perceive a double standard. In an American Bar Association poll
released last month, 47 percent of respondents said the legal system
does not "treat all ethnic and racial groups the same." That's a
start. Unfortunately, it may take tragic events like the death of
Amadou Diallo to translate that perception into policies.