Kennedy, Randall. Race, Crime, and the Law, (Random House, Inc., New York:1997

Autumn Pemble <> Race, Crime, and the Law (Autumn Pemble)
Jamie Cecil <kailey@WINCO.NET>Race, Crime and the Law
Ian Garrett <ijgarre@ILSTU.EDU>Race, Crime and the Law.....
Mary Nash <>Re: Racial profiling forum
Casey & Erin Fennessey <fenne@DAVESWORLD.NET>Erin Fennessey's Review of Race,

Date: Wed, 14 Apr 1999 20:19:08 -0700
From: Autumn Pemble <>
Subject: Race, Crime, and the Law (Autumn Pemble)

Reviewed by: Autumn Pemble

Is it possible for our system of justice to look beyond race? According to statistics, blacks are more likely to enter the criminal justice system. They are more likely to come in contact with police officers, be arrested, and get stiffer penalties (incarceration and the death penalty). Randall Kennedy uses good examples and current statistics to illustrate how racism operates in our criminal justice system. His book, Race, Crime, and the Law shows evidence of racial bias in law enforcement procedures and personnel. He also makes allegations that our criminal justice system produces black victims and black criminals.

Randall Kennedy begins the book by speaking about the racial politics that surround the administration of criminal law. He says there are four political groups that must be addressed before change in the administration of criminal law can occur. The four groups are those that (1) want to control street crime, (2) want to limit the power of the government, (3) wish to have a color-blind constitution, and (4) wish to defend black people but need to be careful when doing so.

The problem with controlling street crime is, according to Kennedy, that law officials exhibit racism which distorts the realities of street crimes. The second group wants to limit governmental power because they feel that too much governmental power will result in abuse of that power. The thought of a color-blind constitution is very misleading because programs like AA and procedures that are currently in use focus on the color of one's skin. Lastly, those that wish to support blacks need to be cautious when supporting allegations. For example, Tawana Bailey claimed six white policemen sexually assaulted her. The grand jury found no truth to her story. However, black supporters would not drop the issue and argued that she was telling the truth. In these situations, one may lose credibility and only add confusion to what is actually occurring in our criminal justice system.

According to Kennedy, America's society associates blackness with criminality. Because of this linkage, people (white and black) are more suspicious of black people. In 1994, Jesse Jackson made a statement that he would feel safer if a white person was walking behind him instead of a black person. Jesse Jackson felt the he had a lesser chance of getting robbed by a white person than a black person. Devastating statistics link blacks to criminality. Blacks only make up 12 percent of our population but they account for 44.8 percent of the people arrested for violent crimes. Also, "In 1990, for every 100,000 whites, about 289 were in jail or prison. For every 100,000 blacks, about 1,860 were in jail or in prison (23)." Blacks are more likely to commit crimes that people fear the most, which are street crimes. While these statistics show the high rates of black criminality, the bias in the criminal justice system may reflect the reason for these devastating figures.

The past relations between blacks and whites reflect the inequalities and law differences that could relate to how blacks are treated in today's system of justice. Blacks had no protection in the antebellum era because laws were not made for them or to include them. Whites often went unpunished for killing and assaulting blacks. However, blacks underwent severe punishments if they were to harm whites. Slaves were also unprotected from rapes. There were no laws to make the rapes of slave women crimes. Therefore, there were no laws to punish the rapists. In 1855, a slave woman by the name of Celia was convicted for murdering her master who had attempted to rape her. Celia was convicted and sentenced to death for the murder (36). 

In the late 1700s and earl1800s, Ohio law said that blacks could not testify against whites. Finally, in 1864 blacks were allowed to testify against whites in federal courts. Later, in the segregation era, blacks constituted 73% of all of the victims of lynching. The NAACP was formed as a result of these mobs against blacks. In attempting to stop lynching, riots were created. Not only did the government fail to protect white on black crime, it failed to protect black on black crime. Police have been noted for ignoring black on black crime because they did not care about the victims. Even today, blacks feel that police officers do not give them as much good protection as they give whites.

One could argue that blacks were made criminals in the slave era, because the acts that the blacks were found guilty of were not seen as criminal if whites were to engage in them. Even though reconstruction attempted to put an end to segregation, racist individuals in the criminal justice system found other means of keeping segregation alive. Kennedy, brings up the various cases that show how blacks got shafted. The Scottsboro case is among many others that convicted innocent black men of a rape that the victims later testified did not occur. A couple of the boys were given the death penalty. Even though some of the Scottsboro boys were illiterate and suffered from mental illnesses they were convicted. The women who had committed perjury were never found guilty because they were white. In this case, the judge and the jury disbelieved that the white women would have actually consented to having sex with a Negro. Prominent black men were also singled out by the FBI and feared by officials.

Marcus Garvey (Universal Negro Improvement Association), Martin Luther King Jr., and the Black Panthers were carefully watched by the FBI. Blacks became more hostile and started doubting officials because of these attacks on black civil rights activists. Blacks also began to fear police officers.

When polls are taken, blacks are found to have the least amount of trust regarding police officers. Police officers have a history of abusing blacks. Well known cases like that of Rodney King support evidence of police brutality on black people. Because King resisted arrest, he was severely beaten by a group of police officers. Beatings are not the severest punishments that blacks face in our criminal justice system. The death penalty is disproportionately given to black defendants that have committed crimes against a white people. "Between 1900 and 1991", 188 defendants out of 416 were innocent black people that received the death penalty.

Imprisonment is another area of the criminal justice system that exhibits the discrepancies between blacks and whites. Blacks and whites were segregated in these institutions. Blacks were more likely to be treated unfairly by correctional officers. People say that incarceration was a "legal" route to keep blacks in slavery. Blacks were, and are, incarcerated at higher rates than whites. Kennedy points out that these institutions are currently a socializing agent in African-American communities because of their prevalence. After one has considered the unequal treatment that blacks have been subjected to, then he or she must wonder if race should be considered by law enforcement officials and if so how?

The United States has a history of treating people other than whites has inferior. Blacks have received the worst end of the stick, but others have suffered as well. The case of Korematsu is a good example of how a minority group was singled out for no logical reasons. In this case, all individuals with Japanese Ancestry were subject to curfews and confined to a certain area. 

The U.S. was concerned with the idea that the Japanese would strike against them. However, the U.S. had no evidence to support its ideas. Races provoke suspicions just because of their color, according to Kennedy. Kennedy says that just because races are perceived to be certain ways does not give police officers the right to discriminate based upon the stereotypes, even if they are statistically proven. For example, it is true that young black males account for a high rate of violent crime. Yet, to single all young black males out would be wrong. This would only produce racial segregation and set a wrong guide for officers to follow during the decision-making process. After blacks come into contact with police officers, their trials will determine what punishment whey will receive. Should blacks receive a certain jury pool? Thus, another issue of color comes into play when juries are to be considered for trials.

Kennedy argues that juries should not be based upon race. To do so would be a form of discrimination. The Supreme Court has outlawed racially discriminatory peremptory challenges. Kennedy agrees with this ban. He says even if the juror was excluded to benefit the defendant or the victim, the benefit does not outweigh the harm that is produced by the use of discrimination. Since the peremptory challenge excludes potential jurors for reasons that do not have to be given, Kennedy sees a potential risk for danger. Therefore, he wants the peremptory challenge to be abolished altogether. He acknowledges that the peremptory challenge will be around for a long time. He hopes that it is used more consistently in the future.

What about the idea that blacks are underrepresented in the formations of juries? Kennedy acknowledges that blacks cannot, often, meet the minimum requirements of the jury pool. Therefore, it is acceptable that blacks are underrepresented in this area. There must be minimum standards for potential jurors to follow. Even though blacks are often excluded, Kennedy sees them as acceptable reasons. For example, felons are excluded and many blacks have records. This might produce lower rates of black jurors but the requirement is a good one. There are other requirements such as being on the voter registration lists, returning questionnaires by mail (blacks are more mobile so this could interfere), and objective tests that blacks may not score as high on.

Lastly, in the book Kennedy talks about the death penalty and the crack/cocaine conspiracy. Although statistics show a connection between race and the death penalty, Kennedy feels that each case is decided based on its facts and that race is not the main issue. 

One could decide that the death penalty should be abolished altogether. However, the death penalty needs to be studied more to understand if race contributes to one's death or if it is a correlation. According to Kennedy, blacks are being arrested more due to the war on drugs. Clearly there is a sentencing difference between those caught with cocaine and those caught with crack. It is blacks who are being sentenced the severest because they tend to use crack instead of cocaine which has stiffer penalties. Kennedy does not say how he feels about the crack/cocaine dispute. However, he acknowledges that there are negative factors against blacks in these situations. Therefore, the problems could be due to racist attitudes. Yet, they may just be misconceptions. Therefore, one needs to examine the drug situation carefully before automatically assuming intent and blame on the legislatures.

Basically Kennedy is in favor of a race-free criminal justice system. In order for this to occur, officials must first acknowledge that discrimination does exist and then improvements can be made to the administration of criminal law. His idea sounds like a good one. Realistically, however, this color-blind system of justice seems to be out of reach. Considering the history between blacks and whites and the feelings still alive today, there is much doubt that the two groups can overlook race and solely punish individuals based on their actions. Improvements are being made between black and white relations. Is it possible in years to come that our system of justice will be race-free? 

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Date: Mon, 10 Apr 2000 15:25:05 -0500
From: Jamie Cecil <kailey@WINCO.NET>
Subject: Race, Crime and the Law

Reviewed by Jamie Cecil

Is the criminal justice system of the United States discriminatory toward minorities or does it only appears to be on the surface? Everyone is aware of the injustices that have been committed against minorities, particularly African Americans, in the past but is it better in the present day? Randall Kennedy addresses these issues in his book "Race, Crime and the Law". Kennedy discusses the issues of using color as a proxy, jury selection, peremptory challenges, playing the race card in trail, and punishment differences. By evaluating these issues, Kennedy explains the history of discrimination, current practices and remedies to change existing problems with the system. Kennedy is largely aware that the criminal justice system is unfair to minorities, he in no way undermines this fact through out his book.

He does, however, state that many of the accusations made toward the government for causing this unfairness in order to deliberately cause harm to minorities is false in many cases in the present day. He argues that the way the system is set up disadvantages minorities and improvements need to be made in many areas in order to achieve a color blind world, which is his goal.

An issue that plagues the United States is the idea that color determines a person’s dangerousness. The idea that a black man is stopped for driving through a "white neighborhood" is an example of this. The police officer suspects that the individual has or will commit a crime because, to the officer, he doesn’t belong there. Is the officer targeting him only because he is black, or is he being targeted because the crimes that are committed in this area have generally been done by black males? This is a tough situation that happens on numerous occasions.

The law says that the officer can not stop the man only because of his race. It also says that if the officer stopped the man because he fit the description of persons which have committed prior crimes in this neighborhood then the officer was doing his job. Kennedy says that he understands the basis of the officer using his prior knowledge to safe guard the neighborhood, but he believes that if the officer is going to stop all black people that don’t live in the neighborhood that everyone, including whites, who does not live in the neighborhood should be stopped for questioning. Racial profiling can raise a few issues. The first issue deals with how profiling affects statistics. Statistics show that young black males are the largest group to be convicted of committing a crime.

Due to racial profiling, it is difficult to say if young black males are actually committing a larger number of crimes or, if they are committing an equal or less number of crimes but are getting caught more often because they are being profiled more often than other racial groups? The second issue racial profiling affects is the trust which minorities have for officers of the law. It is no surprise that many people from a minority background have distrust for officials when they are being profiled by them. The job of a police officer is to uphold the law and protect the citizens of this country, but in many cases an individual from a minority background feels that the police are their enemies and targeting them.

This distrust will make it difficult to turn to the police when the individual has had a crime committed against them or witnessed a crime. As you can see the issue of racial profiling affects not one individual or community, but everyone. Kennedy not only wants more enforcement hired so that everyone can be targeted but thinks "everyone-ordinary citizens, legislators, police officials, judges, and so on-should demand that race play no routine role in decision-making regarding whom to scrutinize for purposes of law enforcement" (p. 162). Jury selection is another important issue Kennedy uses in his discussion.

His main point on this topic is to prove, contrary to the beliefs of some individuals, the process of jury selection is not meant to be racially biased. He claims that the process can cause underrepresentation of the black population for three reasons. The first, jurors are picked from voter registration lists, in which the black population is underrepresented. The second reason is individuals must receive, complete and return a questionnaire. It can be difficult to reach some people because the black population tends to move at a high rate. The last reason for underrepresentation on juries involves the questions asked on the questionnaire. The questions want to make sure the person has completed high school and has no criminal record. These questions eliminate a portion of the black prospective jurors. Kennedy say that the questions asked on the questionnaire are important and all jury members should be fairly educated in order to understand the trial.

However, Kennedy does stress that some changes need to be made and he offers some remedies. The first remedy is to take racial demographics into account when deciding the location to transfer a case. The second remedy is to racially target mailing of questionnaires. Another suggestion is to subtract names of majority race prospective jurors to obtain an overall racial "balance". Kennedy’s last remedy is to set aside a certain number of seats for racial minorities within the jury. Kennedy believes that "racial conflict is not inevitable, that it can be overcome and that a morally good and politically realistic way to help in doing so is to decline to formalize race-mindedness in selection" (p. 252).

Jury selection leads us to the issue of racial peremptory challenges and playing the race card in trail, both of which Kennedy opposes. Although it is against the law to use a peremptory challenge to dismiss a juror because of race, it is rarely enforced. The lack of enforcement is due to the fact that it is difficult to distinguish when a juror is actually being excused on the basis of race. Kennedy says the courts must enforce against the use of the peremptory challenge in dismissing jurors based on race.

Kennedy also states that "appealing to racial sentiments in a criminal proceeding is virtually always morally and legally wrong because doing so subverts the goal of the trial process to present to a judge or jury relevant evidence and argument upon which to determine fairly the culpability of a defendant" (p. 256). Kennedy believes that Johnnie Cochran, attorney for O.J. Simpson, used the "race card" during the Simpson trial.

Cochran appealed to the jurors , particularly the black jurors, to correct the system and punish the police for wrong-doing. He appealed to them on the fact that the detective was racist. Kennedy thinks that race played a large role in the decision instead of all the facts, and this is not how our courts should be ran. Another issue that raises discussion is the differences in punishments between white criminals and minority criminals. For example, the punishment for being caught with crack cocaine is much larger than the punishment for powder cocaine.

It is a fact that more white individuals use powder cocaine and more minorities use crack cocaine, therefore the differences in punishments are seen as racially unjust. Kennedy does not really give his personal opinion on this matter but he does state that eleven out of twenty-one black members of the House of Representatives voted in favor of the laws. He also adds that none of the black members of Congress spoke against the law being racist.

Kennedy takes an unbiased view into the issues which are involved in race, crime and the law. He expresses that in order to achieve a color-blind world, we still need to make improvements in our systems. Kennedy makes a point to inform the readers of the progress which has been made over the years. Kennedy brings many issues to the table in his book that need to be addressed and understood before our society and criminal justice system can advance as a whole.

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Date: Mon, 10 Apr 2000 20:00:24 -0700
From: Ian Garrett <ijgarre@ILSTU.EDU>
Subject: Race, Crime and the Law.....

reviewed by Ian Garrett

Harvard educated professor Randall Kennedy takes on the role of legally explaining that seemingly every court case and legal decision that has affected a person of color has led to the intolerable criminal system we live under today, and the subsequent problems of racial tolerance in some arenas. Throughout the book, Kennedy does a spectacular job of using numerous court cases (many I've known about) that prove his points of a biased legal system that has lead to a fear of blacks by many whites, and a cynical view of the legal system by many people of color in America.

However, it becomes difficult to gage Mr. Kennedy's honest point of view in assessing the situation regarding Race, Crime and the Law. It is understood that they all have causal effects upon each other, but aside from the informative nature of Kennedy's analysis, it is difficult to gauge his own thoughts on what should truly be done to rectify the issue.

Randall Kennedy suggests that in order to cure race relations in today's society, we need to allow the legal system to discontinue making laws that seem to cater toward the victimization and incarceration of not only the disproportionate black males, but should maybe make a level playing field in which blacks and whites can be equally targeted for the same crimes and punishments. If we are going to single out people, Kennedy seemingly agrees that we should single out everyone. If law enforcement and the courts are looking for 'poster children' to exploit, Kennedy believes the American legal system should spread its good will of discrimination toward all parties, as opposed to historically and currently singling out people of color.

Despite Kennedy's eye for an eye theory, he remains an idealist. He wishes to create a legal system that "looks beyond looks". ( foreword p.11) Nonetheless, Kennedy sticks to the notion that curing race relations in America is a proposition that can be done. Kennedy takes on a number of aims, but only two points articulate his argument. Those arguments include the historical mistreatment of blacks and how equating black as a proxy that equals criminals, and the use of the race card and other legal issues to hurdle the idea of fairness in the criminal court system.

Lastly, Iwill look at Kennedy's argument subjectively, as well as attempting to decipher his own argument in understanding why and what can be done to solve the problematic issues of race, crime, and law.

Kennedy introduces the reader with court case after another of issues that occurred during slavery in which black men were constantly accused of rape or murder of white victims. As a result, many were brought to court and easily convicted of the offense which in turn, meant a sure death for the black man. However, many cases that did go to trial were cases in which the victim lied, made up the story, or the defendant had credible witnesses that could not testify due to the court''s withdrawal of the eyewitness.

This unequal protection and enforcement of the law makes more sense when we know that numerous KKK members (during reconstruction) would willingly kill black men, admit to it in court, and be acquitted through racial and legal maneuvering the prosecution readily utilized against black defendants. The concept proves that the American courts have proven biased, and some believe racist in their handling of criminal law with respect to black and white men.

The end result during this era was a disproportionate number of black males allegedly committing crimes and receiving death for them, despite the defendant having supposed rights--through the court-- to a competent lawyer, or due process. These types of proceedings have gone on in this "fair" American legal system for nearly 200 years. What it has done, has created numerous stereotypes and proxies that single out black males for doing, not doing, being, and the like. Such a notion of people of color within the legal system creates almost impossible paranoia among many whites in the civilian society.

As a result, numerous blacks were convicted or sent to die because of being black. Sometimes the issue had nothing to do with committing a crime or not. These were laws in existence that punished the presence of a black male. What this has done over time has proven that the lack of legal protection and the use of unequal punishment toward persons of color has resulted in people to equate blackness with crime, and other negative issues.

History has taught us many things about ourselves and those around us. In the legal sense, the American court's lack of protection and subsequent unfair treatment and punishment of many blacks today has led to the idea that we (as black males) all evil killers that have no regard for the law. In a sense why should we? Does the law really protect me, or does it protect my white counterpart? Viewing blackness as such (Kennedy calls a "proxy" p.143) causes the civilian white society to fear unassuming black men. What then occurs is an overly eager legal system ready to implement new laws and statutes that disproportionately gear their focus toward black men and women as targets. Kennedy believes these proxies give the courts, most notably law enforcement justification to harass scores of black men for "fitting the description"--in other words, for being black. According to the 14th Amendment, Kennedy believes that mere reasonableness is an insufficient justification for officials to discriminate on legal grounds. (p.147)

Kennedy also states that race is not the sole factor in determining the discriminate basis of one's well being, but most often it is the decisive factor. (p.148) (For example, the "War on drugs" is seemingly a war against African-Americans) This means that those police departments that use racial profiling in order to "serve and protect" are using nothing other than the fact that many black males and females "fit a description"--of being an African-American or other minority.

Kennedy believes these views of blacks as magnets for crime has only permeated through out society to the highest levels of court in which laws are drafted to serve the people, but are arguably drafted to justify further inspections of African-Americans and their communities. As a result, when blacks are accused of crimes, and must go to trial, they must now attempt to legally subvert the impregnable clutches of a biased American criminal court system.

The concept of race and the courts does not have the same fervor that race and crime normally do, but the two are still heavily related. Kennedy contends that more blatant discrimination is done when juries are sometimes intentionally exempt of black jurors in order to receive harsher sentences against the black defendants. This legal maneuver is known as the peremptory challenge. This legal maneuver has been used since before slavery, and continues to be used today. It allows the court prosecutor to strike unwanted persons off the jury pool for no apparent reason or justification. History has shown us that "no apparent reason" has continually been scores of potential black jurors, being struck down, especially in trials with black defendants, or in areas of larger minority concentrations.

Since before slavery, many attorneys have willfully used this tactic in order to strike black jurors off the venire because they were black, and may choose to vote for a defendant's acquittal. The problem with such a rule is that it is extremely difficult to enforce, which makes the elimination of many potential black jurors an effortless task. In 1986, The Batson rule was constructed, out of a court case involving James Batson a black male that was accused of theft. The prosecuting attorney utilized the peremptory challenge to strike all potential blacks from the jury pool.

As a result, Batson was sentenced to death. In attempting to curb such racially motivated behavior, the Supreme Court established the Batson Rule, which forces prosecutors to prove the merits of using such a challenge "on its face". Even though such a rule is in place, it still remains easy for attorneys to use race in determining the fate of many black defendants in the American criminal court system. This inevitably has led to increased punishments for black defendants not pursuant to their conduct, but because of their color.

In a more biased view of this subject, let me propose a quick editorial, devoid of reason, fairness, and objectivity. (here goes my grade) Mr. Kennedy wants us to know that the problems of constantly equating race (black) with crime and the law are curable. They are curable through his eye for an eye theory. Mr. Kennedy believes that the issues that have been raised pursuant to his book involving the mistreatment, unequal protection, unequal composition of juries and unequal punishment of black Americans can be rectified through using what else---race based programs to help intentionally discriminate within the system in order to make the playing field more levelled. In other words, if you can't beat em', discriminate.

We should hire more police officers in order to conduct racial profiles on white guys, black women, asian grandmothers, cuban refugees, .....everyone. Kennedy believes that no stone should be unturned in the insurgent movement to rise above the petty protection of the U.S. court system and attempt to restructure it completely. In order to conduct better race relations, we need to cater to everyone, and be weary of each person, regardless of color or background. We should utilize some, if not more race based forms of discrimination in order to supposedly level the field. How would all white males accused of crimes like to be sent to court in Washington, D.C., on an all black jury that would certainly be willing to listen to each aspect of their case claiming their innocence? That would be fair right?

Of course. Maybe I am getting ahead of myself.....however, Kennedy believes that we should adopt systems closely related to the issues I have brought up. A "Keep it real" legal policy, if you will. That is, Kennedy's arguments suggest that if there IS equal protection under the law for all, why can people not be equally screwed under it as well? Its already happened for the African American community, whose next? Is that NOT fair, does it not protect everyone, does it not "Keep it Real?" It is clear that the American legal system has historically and currently put African-Americans in very difficult situations, because of who we are.

It is certainly not applicable for everyone, but disproportionate numbers of blacks are incarcerated, harassed, and killed because of their color, not necessarily their conduct. (p.390) In an ideal world, this would be possible. Kennedy's final answer' is that Authorities in the legal and law enforcement role should initially take the responsibility upon themselves to carry out their actions on a non-racial basis. That may prove extremely difficult in this society since scores of blacks see the courts and law enforcement as the biggest impediment to their success as individuals and as a community. Redirecting the spirit of a generation of blacks that see "The System" as the worst example of justice is a very difficult undertaking. Kennedy believes it begins with those officials in the courtrooms, those filing the cases, and those protecting the citizens.

This explains why so many black males view law enforcement, and the court system with such disdain. In some senses, it really is justified. Mr. Kennedy contends that we should also consider changing the laws by revenge via preferential or discriminatory treatment of those that are part of our racial group. We should truly consider this idea despite the fact that the criminal justice system, law enforcement, the black and white communities all live in fear of each other, and what each will do next. This fear, in a sense, explains some of the issues of slavery. It explains the 3/5 rule, the Black Codes, Swain v.Alabama, Brown v. Board of Education, the Civil Rights Act, the Batson Rule, etc. It explains why race, crime, and the law are three of the most volatile issue in our lives today.

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Date: Thu, 27 Apr 2000 08:49:16 -0700
From: Mary Nash <>
Subject: Racial profiling forum

By Mary Nash

Last night I attended the public forum on Racial Profiling, along with Stephanie and David from our class. I wish more members from our class could have attended, especially those individuals who do not believe racial profiling exists or is not a problem. This forum brought the issue home to the local and state level. The local ACLU moderated the forum with representatives from the local NAACP, the state ACLU, a Latino grassroots organization for which unfortunately I cannot spell and the Chiefs of Police for both Bloomington and Normal. Racial profiling was defined as a police practice that uses race and/or ethnicity as suspicion for criminality.

It was devised as a practice to be used in an attempt to curb the national drug trafficking problem in airports based on a report from Operation Pipeline that outlined numerous characteristics and behaviors that make one suspicious of drug trafficking. However, many of the items outlined are subjective or arbitrary like having too much luggage, having too little luggage, being nervous, being calm. The practice soon was being applied outside of airports and has become a pervasive problem in many communities.

A study was conducted of District 6, which includes McLean County two years ago and it was discovered that 8% of the drivers within this district are African-American and Hispanic, but they represent 46% of drivers randomly stopped by the police for either no traffic infraction or minor violations such as the tire of the car being slightly over the white line of a stop sign, which quite honestly I did not know could get me a ticket. But then I am not a great driver. The interesting discovery was that African Americans and Hispanics in District 6 were more often pulled over during the daytime than night, but more crimes are committed during the night. During the daytime it is easier to tell the driver's race or ethnicity. This study was done in cooperation with state police departments and many officers admitted during individual surveys as part of the study, that they had been trained to take race into account.

The ACLU representative, Adam Schwartz, stated that racial profiling is unethical in a democratic society, undermines the integrity of our society and is ineffective because the more police departments engage in the practice the less they achieve their goal of apprehending criminals. According to a national Gallup poll, 80% of people polled, people of all ethnic backgrounds, believe racial profiling is wrong. Even President Clinton has publicly denounced the practice. The police as an entity were not blamed for racial profiling. Instead the focus was on identifying the few officers within various departments that continue to use the practice which is no longer legal. Members of the NAACP and other civil rights groups present advocated giving officers a chance to rectify the problem by stopping racial profiling, then firing them if it is evident that it is a continuing problem.

Both Chiefs of Police of Bloomington and Normal denied racial profiling is a problem in this area and have formal grievance policies to investigate charges of racial profiling or discriminatory treatment. Dick Ryan, the chief in Bloomington said he would not tolerate racial profiling if he was aware that it was a problem. However, his department has not collected information regarding race in traffic stops. He did say that he was ashamed that his force only had 2% minority officers, but when asked by a community member and ISU professor why he thought he was having difficulty recruiting minority officers his reply was not exactly culturally sensitive, which he had stated earlier that his force was.

In response he said, "They (referring to African-Americans) don't appear to want to work hard. They don't want to work evenings, holidays or weekends." At this point, many people left the forum. Although there were many disgruntled people, myself included, rather than getting hostile people left or pointed out how his remark only exacerbates existing tensions between the police and minority groups.

The debate then switched to a discussion on minority perceptions of the local police force and that such comments like the one made by Ryan were part of the reason why many minorities have a distrust of the police. It is important to note that this forum was not a blame game. Everyone wanted to promote respectable dialogue to bring an end to racial profiling and look at effective ways at repairing the trust between the police and minority groups. It was also stated that racial profiling is not just a minority issue because many people not classified in a minority group are genuinely concerned about the fact that people are being pulled over and/or detained based solely on their skin color. 

Some of the positive suggestions discussed were increasing minority representation on the police forces since Bloomington has only 2% minority officers and apparently Normal has none, promoting the fact that both departments have policies in place to hear grievances regarding racial profiling and having advocacy groups try to work with minority groups so they know their rights and that they can file grievances.

It is also important to note that during this forum it was admitted by groups such as the NAACP that many charges of racial profiling are unfounded and that as an organization they only focus on cases where people are stopped and harassed solely based on their race when no charges of criminality are filed. But there are numerous cases where people are detained, questioned, pulled over and asked intrusive questions because the officer is suspicious of them because of their skin color. 

An ISU female African American faculty member admitted to being pulled over 6 times in less than a year and charged with minor infractions that she has seen her white friends commit numerous times. There were similar stories. The problem in our community appears to be that victims of racial profiling do not report their concerns to the authorities either out of fear or the feeling that it would not do any good. Hopefully, with the work of advocacy groups, public pressure and cooperation with the local police forces this problem can be rectified.

Racial profiling is a complex and controversial issue. I am trying to just report on what went on at the forum and share what I learned. I am not trying to tick off the conservative faction of this class or inspire yet another debate like I seem to have a flair for doing. The local police state they do not practice racial profiling anymore and appear to be concerned about their perception in the community and lack of minority officers. On the other hand, community members and local studies demonstrate that racial profiling does exists and some culturally insensitive and biased remarks were made by a police chief who purports to believe in putting officers through cultural sensitivity training. 

I believe that the solution lies in holding people personally accountable for their actions. If someone is acting suspicious by tangible measures other than belonging to a certain racial group then pull them over and investigate them. If an individual police officer is practicing racial profiling when it is not a legal practice then discipline the officer and send the message that it will not be tolerated. This was a very enlightening forum for which I learned much.

Too bad more people from our class could not attend. 

Peace and love

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Date: Thu, 13 Apr 2000 23:56:34 -0500
From: Casey & Erin Fennessey <fenne@DAVESWORLD.NET>
Subject: Erin Fennessey's Review of Race,

By Erin Fennessey

Criminal law is a multifaceted enigma viewed either from the lens of history or current controversy. Kennedy provides an exhaustive examination of the history of criminal law and the resulting current controversies pertaining to African Americans. While the politics of respectability are the general tenants of Kennedy's approach to many problems in the criminal justice system, the overall approach to this book is based on careful examination of the facts and reasonable analysis.

There are four main approaches to issues of race in criminal law. Most prominent in today's political culture, the stance of being tough on crime is established not only in political agendas but also in the public response generated in the voting booths (p. 3). Criticisms targeted at this "law and order" approach to crime incorporate the far reaching affects of anxiety generated by over-emphasis of crime in the media and the established reputation within black communities of racism within the official capacity of law enforcement institutions(p. 4).

Another approach to criminal justice is entertained by the all out laissez faire libertarian. Both liberal and conservative libertarianism is characterized by a strong mistrust of the government (p. 5). Kennedy suggests this "intolerance for government tyranny" would be better employed if it focused not only on corruption of government power but also on the strong correlation between racial misconduct and bigotry with corruption (p. 5-6).

The view of color blind or some would say just blind individuals denies the necessity of viewing policies whether they are aimed at the criminal justice system or affirmative action from the perspective of race (p. 6). While most Americans would agree that this would perhaps be an ideal worth pursuing, the current realities especially within the criminal justice system require critical scrutiny and consideration. Racial considerations in examining the institution of criminal justice take on a particularly vital role when viewed in historical context. A closely competitive approach to race and the criminal justice system consists of those groups and individuals who are willing to pursue any avenue at any cost that, "advances the interests of blacks" (p. 7). The question of which methods of advocacy really do advance the interest of African Americans is a major point of contention.

Credibility becomes an issue when some groups use "formulaic allegations of misconduct" without considering the merits of a particular case or policy in an objective light. A case in point is the treatment of the allegations of Tawana Brawley in 1987. Although a grand jury in New York found her allegations of being raped by 6 white men not only lacked evidence but that she also blatantly lied about the incident, her lawyers and other African American interest groups continued to champion her cause (pp. 7-8). In this case, pushing allegations about racial injustice did not further the interests of actual victims of racial prejudice within the criminal justice system.

All four of these approaches to controversial issues leave room to consider the common interest of evaluating the issues addressed by Kennedy in a constructive manner. These approaches are not the main point of this book, but the acknowledgment of these four differing perspectives is a key to realizing the total commitment to engaging any reader into a reasonable and rational analysis instead of an emotionally charged and often irrational argument. Kennedy also tries to focus on the need for expanding our understanding of issues related to race in the criminal justice system. "Sensible" approaches to such complex issues include " apprehending, incapacitating, deterring, and punishing criminals" as well as providing answers to contributing social dilemmas such as limited opportunity structures and poverty (p. 12).

Historically African Americans have been subject to under-protection by law enforcement through periods of enslavement, of segregation, and then as part of a disenfranchised minority. Kennedy believes this pattern of under-protection has been an even more cumulatively destructive form of oppression for African Americans than an unjustly biased legal system (p. 29). By withholding even the most minimal forms of legal protection from slaves; rape, violent assault, and even murder were sanctioned through the official capacity of the courts (p. 30-41). Only in instances where economic concerns were threatened did state legislatures and courts step up and provide punishment for violence perpetrated against slaves (p. 31).

After African Americans were freed from the formal bounds of slavery, legislatures during the reconstruction era were quick to enact new legislation which served to disallow African Americans from benefiting from equal protection under the law (p. 37-39, 40). Denial of protection extended well beyond the inability to testify or sit on juries (p. 46). Lynching and other extreme and abominable forms of violence were allowed to go unchecked both at the state level and at the national level in the congress. This continual implementation of degradation quite naturally lead to the disillusionment of an entire segment of the American population. The sobering accounts of lynching as reported in news papers will bring tears to your eyes and a knot to your stomach. We all need to be occasionally awakened to the tragedies of the past in order to prevent such horrors from ever being committed again.

How has this history impacted the current criminal law system? Due to the reputation of enhanced criminality, the increasing amount of crime committed by African Americans against African Americans, and the current fascination of American culture with violent crime; issues of race related to the criminal justice system have become the central focus of many a controversy (p. 14). One of the most hotly debated topics is the practice of racial profiling. Kennedy believes this practice is incurring a type of racial tax that has to be paid every time an African American or any other minority is subject to police scrutiny based on a belief that they represent an increased probability of criminality because of their race (p. 159). 

While it is generally accepted that the overall affect of this type of police profiling is negative, alternatives are usually sketchy or unsatisfactory. Increased training, personnel, and intelligence resources would perhaps alleviate some of the necessity of profiling (of any type) by police, but these measures would not fully supplement the crime prevention currently achieved by active scrutiny by police based on profiling. However this issue is demanding an immediate response due to current allegations of discrimination in the guise of prevention such as those levied by police officers from Hillside, IL, which is a suburb of Chicago. Angry communities and those influenced by the overwhelming perception of racial bias and misconduct in police forces will soon require the implementation of a solution to this problem.

Several aspects related to the racial composition of juries are also significant. African Americans were frequently excluded from the entire process of jury selection and service. One striking example of how completely blocked out African Americans were can be illustrated in the responses to the Stephenson Study conducted in 1910. He sent out questionnaires to county clerks in southern states asking for information on how many African Americans served on juries within each respective county. A county clerk in North Carolina responded with the following sentence: “ I will say that Negroes do not serve on the jury in this county and have not since we, the white people, got the government in our hands” (p. 173). That one simple and objectionable sentence demonstrates how vital the examination of jury selection and qualification criteria can be to establishing an equitable criminal justice system.

Peremptory challenges have also been a stumbling block to the inclusion of African Americans on juries. Many critics claim this form of exclusion is particularly prone to racial bias and should therefore not be allowed in any form. Even in light of the criteria for challenging racially discriminatory peremptory challenges which was developed in Batson v. Kentucky, 1986, the regulation of bias has not met with an appropriate solution (pp. 204, 218). Kennedy suggest unqualified challenges such as the peremptory challenge should never be allowed, but he fails to recommend an really comprehensive alternative form of acceptable criteria.

The problem of under-representation of African Americans on juries is also subject to debate. Every step of the process has been challenged at some point by judicial review. Everything from initial questionnaires to the process of voir dire has been questioned as to validity. Negative perceptions about the jury selection process range from institutional racial bias to failure to ferret out hidden or unconscious racial bias in selected jurors. While jury composition is perhaps a consequential issue, the real problem is a judicial system in which the race of a juror can impact the outcome of a criminal trial which may deprive individuals of their freedom and even their lives.

Making overt appeals to racial bias, either to white or black jurors, is another dilemma faced by the courts. The practice is not allowed, but when it does occur the frequent result is to overturn the ruling of the court on appeal. Even if the defendant was convicted on the basis of overwhelming evidence, they may go free for inappropriate references by a lawyer or as a result of allegations that the jury was racially biased due to it’s racial makeup.

These situations seem to go beyond frustrating into the unconscionable area of no justice due to technical or unprofessional lapses. Kennedy believes the process of overturning trials based on these types of conduct or circumstances is necessary to prevent the continued abuse of racial bias within the criminal justice system. Unfortunately that explanation may not be adequate for the victims of rape, or the families of a murder victim. Perhaps alternative solutions, such as disbarrment, would be more effective and have the same result, if the lapse is found not to have influenced the outcome of the trial.

Kennedy also examines the apparently unequal burden placed on African Americans by the death penalty and the strict and some would say biased sentences for the use and sale of illegal drugs (pp. 311, 351). Kennedy believes the focus on race in connection with these issues simply serves to “divert” the relevant issue of whether or not the overall policy is actually relevant and appropriate. Secondly, he claims both of these issues are problematic because the statistical data is generally selective and becomes yet another area prone to debate. In this case, these remarks are right on target. Issues that impact peoples lives are far too weighty to be mired in unsubstantiated facts. If these issues as they are related to race are going to be addressed, the focus of interested parties should be on establishing widely published and accepted statistical evidence that supports their claim.

I have attempted to touch on some of the most important issues presented by Kennedy in this book. The amount of material covered and the depth with which it was examined between the covers of one volume is truly an exceptional feat. While most readers will not agree with every perspective Kennedy supports, the issues are presented in such a way that whatever conclusion you reach will be better informed. Easy answers are not the product of detailed examination of such complex issues. If Kennedy’s efforts achieve nothing else but providing a better understanding and appreciation of the enormity of issues stemming from a history of oppression, then this book is well worth while. 

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