Page 27


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 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 Cole’s slim book is divided into seven chapters, each dealing with a different facet of the criminal justice sys tem, 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 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 egre gious 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 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 prolaments 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 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 be tween 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 H. 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 reducpensive. 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. JULY 23, 1999 THE TEXAS OBSERVER 35