Their Justice, and Ours

NO EQUAL JUSTICE:Race and Class in the American Criminal Justice System.

One of the greatest works of American history, American Slavery American Freedom by Edmund S. Morgan, grapples with one of the greatest paradoxes of human history: the State of Virginia was the birthplace of American constitutional ideals, including the concept of political equality, yet it was also the colonial bulwark of slavery. In his magisterial book, Morgan asked, How could that be? His answer (a bit oversimplified) is that slavery made it possible for all white Virginians – who otherwise would have been divided among themselves into competing political alliances (e.g., large planters versus small) – to view themselves as a single political organism, and thereby to develop the republican ideas that culminated in the Constitution and its Bill of Rights.

My guess is that David Cole has read Morgan’s book, though I never asked him when we were in law school together in the eighties. But in any event, his thesis in No Equal Justice is the first cousin of Professor Morgan’s. Cole, a professor at Georgetown Law School, is concerned with inequality in the criminal justice system: why some people get charged and others do not, why some get convicted while others do not, why some go to prison and others do not. And his answer is extraordinary. Cole does not say that we have tried but failed to achieve equality; rather, he says, we cannot afford to eliminate inequality. “Our criminal justice system,” Cole contends, “affirmatively depends on inequality.” Just as Virginia could not eliminate slavery if Virginians were to invent the American idea of liberty, Americans cannot eliminate inequality, according to Cole, if we are to maintain our commitment to constitutional rights.

I have deep reservations about whether Cole is correct, and I will mention those reservations in a moment, but at the outset I want to stress that Cole’s thesis is provocative, and what he says is, at a minimum, not manifestly wrong. If the test of a great book is not simply whether it is right, but instead whether it is interesting and thought-provoking, this is an unusually great book, and anyone interested in the problem of crime in America or the issue in inequality in the criminal justice system should read it.

Before addressing the specific legal issues Cole focuses on, I want to summarize the basic contextual framework that informs his argument. I am not a criminal, and I assume that the typical reader of this essay isn’t either. There are, however, many criminals among us. We noncriminals share a powerful interest in not becoming victims of the criminals around us, and if we do become the victims of a crime, we have an interest in punishing the wrongdoer and insuring that we not become victims again (either at the hands of the same criminal or a different one). Our individual interests in not becoming victims, and in punishing someone who acts against us, however, are somewhat at odds with, and sometimes even thwarted by, another value we share: namely, the value of constitutional liberty.

Stated simply, many of the constitutional liberties we believe in – the requirement that the police have a warrant before searching our homes, the right to be represented by a lawyer in a criminal proceeding, the guarantee of trial by jury – have a cost, and in some cases, the cost is rather high. China has less crime than America not because the Chinese people are by nature more law-abiding than Americans, but because Chinese law enforcement authorities are not constrained as are their American counterparts. Constitutional liberty is not free, and in China, and elsewhere, they have decided not to pay for it.

Any society must choose a point on the spectrum between absolute liberty, on the one hand, and unbridled state power, on the other. The cost of unbridled state power is the absence of liberty, but the price of liberty includes increased crime. What balance do we desire? The essence of Cole’s argument is that in America we have cheated in answering that question; we have said that we want certain rights protected (e.g., the right to be free from having a police officer search someone just because the officer thinks that person looks suspicious), but we then turn a blind eye to violations of that right. The question of why we turn a blind eye is a difficult one, and I remain skeptical about Cole’s answer. Nevertheless, that we do ignore these violations is easily documented, and the evidence shows that we do so when the victims of the rights violations are poor (and especially when they are poor members of ethnic minority groups).

Cole’s slim book is divided into seven chapters, each dealing with a different facet of the criminal justice system, and each teeming with examples of outrageous constitutional violations that will make most readers shudder. For example, in the chapter focusing on police behavior, Cole tells the story of how, in 1988, all-star second baseman Joe Morgan was waiting to board a plane in Los Angeles when a police officer just walked up to him and asked to see his identification. The officer believed Morgan was involved in drug dealing. Why? Because Morgan was black. I do not doubt the police officer’s claim that Morgan reacted with some hostility; I would too if I thought I was being harassed because of my skin color, but Morgan was cooperating. Yet when he went to get identification from his luggage, the police officer tackled him, handcuffed him, and led Morgan away to an interrogation room. That has never happened to me and it probably has not happened to you either, if you are white. It happened to Morgan – the police officer himself admitted this – because Morgan is black.

The chapter on police behavior is replete with similar examples. For example, Cole mentions an ABC news program that followed two carloads of young men around in Los Angeles, one carload of whites and one of blacks, driving identical routes. The blacks were pulled over a number of times for no apparent reason (they were adhering to the speed limit and all other driving laws); the whites saw sixteen police cars and were not pulled over even once. The fact of the matter is that in any city in America, police treat blacks differently from the way they treat whites. Obviously this double standard is neither as bad nor as egregious as it used to be, and anyone who says that it is is either a demagogue or a charlatan. At the same time, it is still a major and systemic problem, and anyone who says that it isn’t is either ingenuous or a racist.

Racism pervades the justice system, but it would misrepresent Cole’s book to imply that it is primarily about racism. It is primarily about inequality. Race matters a great deal, but so too does wealth. Indeed, among the most insightful sections of the book is Cole’s analysis of the reason why white law students at American University Law School in Washington D.C. had such a profoundly different reaction to the verdict in the O.J. Simpson murder case than did law students across town at Howard University. The black students erupted in spontaneous applause when the verdict was read, because they were not accustomed to seeing a black defendant who had the wealth that is needed to level the criminal justice playing field. The white students sat in stunned silence because they were not accustomed to confronting the cause-and-effect between wealth and outcome in criminal prosecutions.

Along the way, Cole discusses the ineptitude of lawyers who are frequently appointed to represent indigent defendants. (Some fall asleep during trials, others show up at the courthouse drunk.) He castigates both state legislatures and the United States Congress for spending so little money on lawyers for the poor. (Kentucky, for example, spends less on lawyers for all the State’s indigent defendants than for the athletic program at the University of Kentucky.) He laments the Supreme Court’s decision that upheld the death penalty in Georgia, even though the statistical evidence demonstrates that people who kill whites in Georgia are more than four times as likely to get the death penalty as people who kill blacks. (Those statistics, incidentally, have been replicated in every state where the raw data can be collected; earlier this year, for the first time ever, Texas sent to death row a white man whose victim was black.)

Cole tells the stories and lets the stories speak for themselves. This is a book without many adjectives. Cole assumes that his reader is fair-minded and will have his or her faith in the system shaken by the unadorned facts. The system does not treat everyone equally. Others have proved it, and Cole has assembled the overwhelming and undeniable proof into a single volume.

That said, I am left unconvinced of his radical claim: that we as a nation have been able to choose the balance between liberty and order that we have simply because we deprive the least fortunate of their liberty. The evidence for that proposition is hard to assemble, and in my judgment Cole has not succeeded in pulling it off. I think the simpler explanation is more likely correct: we know that there is inequality, but we tolerate it for two related reasons. The first is that there is a segment of the population that is truly hostile to constitutional liberties. The segment may be a minority, but it is a loud minority. In 1996, for example, Republicans and Democrats together enacted the Anti-Terrorism and Effective Death Penalty Act, which represents one of the greatest surrenders of civil liberties to the state’s police power since World War II. As long as people believe that they themselves will not be rousted from their beds, they are distressingly willing to dilute others’ constitutional protections. Why that is so is the subject of a different essay, but that it is so is an uncontestable proposition.

The second, related, reason is that reducing (much less eliminating) inequality is expensive. Cole sees artifice here whereas I see cynical honesty. I do not have the wealth that O.J. once had, but I have enough money to hire a private criminal lawyer if I should ever need one. So why would I want my tax money to buy a lawyer for some defendant who probably did what the police and prosecutors accuse him of? That’s the question people need to have answered for them. Cole thinks that they avoid confronting the issue; I think they confront it and respond with a pocketbook answer. We know there is inequality, but we tolerate it because it is too expensive not to; we may be willing to spend more than China does on liberty, but our generosity has its limits.

All this may be nothing more than a quibble. Cole has succeeded in writing a serious book that discusses serious issues without making them seem simple. I still think he is wrong about cause and effect, but I confess that weeks after reading the book, I am still thinking.

David Dow is a professor at the University of Houston Law Center.