More broadly, it is unimaginable that our country’s heavy reliance on incarceration would be tolerated if the black/white incarceration rates were reversed, and whites were incarcerated at seven times the rate that blacks are. The white majority can “afford” the costs associated with mass incarceration because the incarcerated mass is disproportionately nonwhite. Similarly, police officers routinely use methods of investigation and interrogation against members of racial minorities and the poor that would be deemed unacceptable if applied to more privileged members of the community. “Consent” searches, pre-textual traffic stops, and “quality of life” policing are all disproportionately used against black citizens. Courts assign attorneys to defend the poor in serious criminal trials whom the wealthy would not hire to represent them in traffic court. And jury commissioners and lawyers have long engaged in discriminatory practices that result in disproportionately white juries.
Those double standards are not, of course, explicit; on the face of it, the criminal law is color-blind and class-blind. But in a sense, this only makes the problem worse. The rhetoric of the criminal justice system sends the message that our society carefully protects everyone’s constitutional rights, but in practice the rules assure that law enforcement prerogatives will generally prevail over the rights of minorities and the poor. By affording criminal suspects substantial constitutional protections in theory, the Supreme Court validated the results of the criminal justice system as fair. That formal fairness obscures the systemic concerns that ought to be raised by the fact that the prison population is overwhelmingly poor and disproportionately black.
The disproportionate results of the criminal justice system are wholly attributable to racism, nor that the double standards are intentionally designed to harm members of minority groups and the poor. Intent and motive are notoriously difficult to fathom, particularly where there are multiple actors and decision makers, and I do not set out to prove intentional discrimination. In fact, I think it more likely that the double standards have developed because they are convenient mechanisms for avoiding hard questions about competing interests, and it is human nature to avoid hard questions. But whateverthe reasons, we have established two systems of criminal justice: one for the privileged, and another for the less privileged. Some of the distinctions are based on race, others on class, but in no true sense can it be said that all are equal before the criminal law. Thus, I take issue with those, like Professor Randall Kennedy, who argue that as long as we can rid the criminal justice system of explicit and intentional considerations of race, we will have solved the problem of inequality in criminal justice.30 The problems canvassed in this book for the most part do not stem from explicit and intentional race or class discrimination, but they are problems of inequality nonetheless. To suggest that a “color-blind” set of rules is sufficient is to ignore the lion’s share of inequality that pervades the criminal justice system today. The disparities I discuss are built into the very structure and doctrine of our criminal justice system, and unless and until we acknowledge and remedy them, we will have
“no equal justice.”
Equality in criminal justice does not necessarily mean more rights for the criminally accused. Indeed, I think it likely that were we to commit ourselves to equality, the substantive scope of constitutional protections accorded to the accused would be reduced, not expanded. If we had to pay full cost, in law enforcement terms, for the constitutional rights we now claim to protect, the scope of those constitutional rights would probably be cut back for all. But at least we would then strike the balance between law enforcement and constitutional rights honestly.
Much of this book will be dedicated to demonstrating how the double standards in criminal justice operate. Some readers will need more convincing than others on this score. By a detailed description of the problem, I hope to shake the confidence of those who believe the system is fair. But I also hope to demonstrate to those more skeptical of the system that the problems cannot be explained by simple charges of racism, and cannot be solved by banning intentional racism from the system. I discuss in turn the constitutional rules governing police practices, the provision of legal representation to those who cannot afford it, jury discrimination, disparities in sentencing, and legal challenges to discrimination in the criminal justice system. In each of these areas, we have “used” inequality to forge an illegitimate compromise between law enforcement needs and constitutional rights. Sometimes the double standard is achieved by exploiting ignorance, as in the Supreme Court’s refusal to require police officers to inform suspects of their right to say no when they are asked to “consent” to a search.
Sometimes the double standard stems from the different resources that rich and poor defendants have at their disposal for their defense. And sometimes the double standard is integral to the criminal justice policy set by legislators; politicians can afford to be “tough on crime” because society has already written off most of those on whom we will be “tough.”
No one disputes that the criminal justice system’s legitimacy depends on equality before the law, so demonstrating that we have not lived up to that promise—this book’s first purpose—should be a sufficient argument for demanding a remedy. It should require little argument to maintain that as a moral matter we must take Justice Black’s dictate about equal justice much more seriously if we are to remain true to the first principle of criminal justice. We should do it because it is the right thing to do. But my second task in writing this book is to demonstrate that there are also strong pragmatic reasons for responding to inequality in criminal justice, because a criminal justice system based on double standards both fuels racial enmity and encourages crime.
The racially polarized reactions to the Simpson case illustrate a deep and longstanding racial divide on issues of criminal justice: blacks are consistently more skeptical of the criminal justice system than whites. A long history of racially discriminatory practices in criminal law enforcement has much to do with this skepticism, but it is not just a matter of history: the double standards we rely on today in drawing the lines between rights and law enforcement reinforce black alienation and distrust. Because criminal law governs the most serious sanctions that a society can impose on its members, inequity in its administration has especially corrosive consequences. Perceptions of race and class disparities in the criminal justice system are at the core of the race and class divisions in our society.
The perception and reality of double standards also contribute to the crime problem by eroding the legitimacy of the criminal law and undermining a cohesive sense of community. As any wise ruler knows (and many ineffective despots learn), the most effective way to govern is not through brute force or terror, but by fostering broad social acceptance for one’s policies. Where a community accepts the social rules as legitimate, the rules will be largely self-enforcing. Studies have found
that most people obey the law not because they fear formal punishment—the risk of actually being apprehended and punished is infinitesimal for all crimes other than murder—but because they and their peers have accepted and internalized the rules, and because they do not want to let their community down. The rules will be accepted, and community pressure to conform will be effective, only to the extent that “the community” believes that the rules are just and that the authority behind them is legitimate. Thus, although the double standards I discuss in this book were adopted for the purpose of reducing the costs of crime associated with protecting constitutional rights, I argue that in the end they undermine the criminal justice system’s legitimacy, and thereby increase crime and its attendant costs.
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