Greg Moses
c 1998
Submitted to
RPA Review
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Respectability and Reform:
Randall Kennedy's Quest for Colorblind Law

A Review of: Race, Crime, and the Law

Apparently without irony, Professor Randall Kennedy seeks a legal theory that would be guided by "the politics of respectability" (17). The term is inspired by Professor Evelyn Brooks Higginbotham's study of turn-of-the-century black Baptist women and, as Kennedy explains, is based upon one principle tenet and some sound intuitions. "The principal tenet of the politics of respectability is that, freed of crippling, invidious, racial discriminations, blacks are capable of meeting the established moral standards of white middle-class Americans" (17). As for sound intuitions, Kennedy concentrates on two. "One is that the principal injury suffered by African-Americans in relation to criminal matters is not overenforcement but underenforcement of the laws" (19). In other words, there has been a historical neglect of black victims. "A second core intuition of the politics of respectability is that, for a stigmatized racial minority, successful efforts to move upward in society must be accompanied at every step by a keen attentiveness to the morality of means, the reputation of the group, and the need to be extra-careful in order to avoid the derogatory charges lying in wait in a hostile environment" (20). Here professor Kennedy is especially wary of the backlash that loose talk about racism is likely to provoke.

Whatever else we may want to say about Kennedy's approach, I think it is important to note how the sense of a "tiptoe stance," considered indispensable to black uplift in the South at the turn of the 20th century, is reaffirmed as prudent from the point of view of a Harvard professor at the turn of the 21st. "Bitter experience," Kennedy tells us, is the teacher that still informs this book. It would be a disservice to Kennedy, however, to insinuate that circumstances have not changed for the better during the past century. Chiming with an anti-pessimist mood that seems especially vibrant at Harvard these days, Kennedy argues that "real achievements" must not lose their "rightful stature in the public's estimation" (389). Moreover, says Kennedy, "one-dimensional condemnations of the racial situation in America renders attractive certain subversive proposals that are, given actual conditions, foolish, counterproductive, and immoral" (389).

In particular, Kennedy has in mind his longstanding disagreement with Professor Paul Butler over the issue of jury nullifications. Butler argues that black juries should refuse to convict black defendants of nonviolent, victimless crimes, even when evidence is convincing. Butler's strategy tries to subvert, except in cases most hazardous to the community, the routine machinery of a racist criminal justice system. Kennedy thinks Butler is too pessimistic. "He sees black-white race relations as a narrative completely dominated by the continuity of African-American subordination, as opposed to a narrative marked by significant discontinuity--the leap from slavery to freedom, and from castelike stigmatization to an increasingly respected place in all aspects of American life" (299). Kennedy agrees that officials "mistreat black suspects, defendants, and convicts, or offer ordinary black citizens less protection against criminality than is offered to whites" (299). And in some instances, "the law itself is racially unjust, as in the case law which broadly authorizes police officers to take race into account in making determinations of suspicion" (299).

In the face of institutional-historical features of American law enforcement, Kennedy pleads complexity. If the Scotsboro case in Alabama, for instance, was a famous example of a "horrible, racially motivated prosecution," then it was also a fruitful proving ground for defendants' rights. The Scotsboro defendants were eventually freed. Meanwhile, the Norris case repudiated racial discrimination in jury selection (177), and the Powell case helped to establish "an affirmative duty on states to provide indigent defendants with counsel when facing serious criminal charges" (174). The complex outcomes of the Scotsboro case serve as evidence for Kennedy that "judicious attention" is needed in the American legal system, "not a campaign of defiant sabotage" (301). Kennedy worries that Butler's advocacy of jury nullification may provoke white reaction into promulgating regressive laws. Already in Louisiana and Oregon, convictions may be rendered in criminal cases, even if two or more jurors vote to acquit.

In the Kennedy-Butler debate we can see a paradoxical exchange of views, somewhat representative of a larger theme. Kennedy the liberal faces Butler the radical. Which side has the more discerning strategy? In the face of white power, Kennedy is more careful not to provoke backlash, so he downplays the power that he most fears. Butler's public taunt, on the other hand, may very well underestimate the power that he claims is most supreme. Yet Kennedy's deepest worries seem to confirm Butler's grim assessment about the ascendancy of white power. Meanwhile, Butler's subversive strategy suggests that white power may be vulnerable to surreptitious attack.

Above all else, Kennedy's politics of respectability require that a new weight of attention be given to black victims and to black communities denuded by "victimless" crimes. "According to a 1993 Gallup poll, 82 percent of the blacks surveyed believed that the courts in their area do not treat criminals harshly enough; 75 percent favored putting more police on the streets to combat crime; and 68 percent favored building more prisons so that longer sentences could be given" (306). From the point of view of black communities waging a desperate war for safe streets, one feature of white power is a refusal to join battle against crime. A. Philip Randolph remarked during prohibition that what is outlawed in white communities is "inlawed" in black neighborhoods. Despite inordinate rates of black incarceration, Kennedy's politics of respectability would declare that law enforcement has not yet gone far enough. Kennedy does recognize a structural context for high rates of crime in black neighborhoods. But while we seek structural relief, Kennedy encourages intervention from police. "Society ought to do more to prevent people from falling so low, and when people do fall, society ought to do more to attend to their plight. At the same time, however, society ought to insulate the neighbors of these victimized victimizers from criminal conduct" (305).

As Kennedy acknowledges early in his book, the politics of respectability is "prone to excesses" (18). Some proponents have displayed, "an undue fear of antagonizing whites" (18). Some have "pathetically" shunned "disreputable" things like "jazz, soul music, and rap" (18). Others tend to, "unduly minimize the extent to which poverty and its vicious companions reduce the amount of choice available to black impoverished youngsters" (18). Still others have neglected webs of commonality that connect criminals to law-abiding members of communities" (19). And finally, "obsession with racial reputation has, on occasion, prompted an egregious toleration of racist attacks" (19). Presumably, Kennedy enumerates these dangers in order to indicate that he has not uncritically fallen into such traps. His strident rebuke of Butler, however, raises issues on several of the above accounts. Thus I think Kennedy could show more appreciation for the fact that the issues raised by Butler are crucial to the kind of dialogue that the politics of respectability needs in order to avoid its own excesses.

In the end, I think Kennedy has produced an impressive sourcebook for any student of race and law in the United States, whether one is inclined to agree with his politics of respectability or not. In keeping with a recent trend in optimistic scholarship, Kennedy is careful to document both the egregious history of racism and the subtle ways in which black citizens are still systematically disadvantaged before the American order of law. Such evidence serves an optimistic agenda by demonstrating that American law has been more or less progressive and open to continued reform. Furthermore, the lengthy treatment of egregious injustice in the name of race is meant to warn us against any invocations of race that we might want to make in the name of progressive justice. The cumulative lesson emerges into view that progressive justice is colorblind. For example, if it was wrong to try to produce all-white juries, it is also wrong to try to seat black jurors.

In light of Kennedy's meticulous archaeology of evidence I would like to take issue with his timid terminology of racism. Although Kennedy often demonstrates that racialized practices are deeply structured into American social and legal institutions, he advances a definition of racism that is too narrow to fit his own evidence. For Kennedy, racism properly speaking, may be used as a term only to denote direct, malign intent. And it is true that the standard dictionary supports such usage. This kind of racism may be branded accurately as a hypocritical violation of values that are widely shared, even among "the established moral standards of white middle-class Americans." Furthermore, as long as racism is relegated to this narrowly confined meaning, it will continue to be a fighting word. "Because wrongful racial discrimination has been widely stigmatized, converting charges of such behavior into serious threats to reputation, many people will fight harder against such charges than other complaints, for instance complaints that the person is mistaken or even foolish" (8). Following the liberal lead taken twenty years ago by William Julius Wilson, Kennedy would thus like to minimize the charge of racism.

Robert C. Smith wisely advises us, however, that another trend in terminology may be developed more fruitfully if we want to intelligently work against racial injustice in the post-civil rights age. Smith takes his point of departure from the Carmichael-Hamilton definition of racism that emerged from the early days of the post-civil rights struggle. I will take the liberty to paraphrase. Racism, according to such an alternative definition, would signify a variety of beliefs, acts, habits, or customs that tend to encourage or perpetuate collective domination of lighter-skinned people over the darker populations of the world. Racism in other words is a dynamic process of racial injustice that includes but is never confined to vicious, intentional acts of discrimination. A concern with racial justice, therefore, is a concern that seeks to reform various mechanisms of racial injustice, not only intentional acts of discrimination. The alternative definition of racism is more clinical, more open to public inquiry, and less threatening to individual or institutional reputations, because it does not necessarily impute evil character. The net is cast wider, but the result is more productive of social change. As Kennedy says, the more narrow terminology is likely to "have the unintended consequence of stiffening the resolve of opponents" (8).

The alternative definition of racism has also proven to be more productive as an administrative tool of enforcement. As David Skrentny reports in his very helpful study of affirmative action policy, it was bureaucrats who discovered as early as 1953 that the narrow definition of racism as overt discrimination was a quite impractical tool for thorough enforcement of equal opportunity laws. Thus, the "disparate impact" study was born before the advent to the civil rights age. Psychologists Clayton and Crosby deepen the case for the alternative definition of racism when their psychological studies demonstrate that it is often difficult to be certain, from an individual perspective, when collective discrimination is taking place.

Kennedy understands the details of racism's tenacity, and his book is a storehouse of cases-in-point, but he does not seem to re-consider what the details mean for his terminological framework. Instead, he seems actively hostile to proponents of the "disparate impact" approach to racial justice. "They seem unaware that a racial disparity is not necessarily indicative of racial discrimination" (9). And yet, it may be the case that such analysts do understand that "disparate impact" is a more effective tool of reform than is the search for individual acts of "discrimination"--for many of the reasons that Kennedy himself has been able to name.

Kennedy's opening objection to a "disparate impact" theory of racism," concerns incarceration rates. "A disproportionate number of blacks in a jail might signal that police are racially discriminating in making arrests. On the other hand, the racial demographics of inmate populations may reflect that more blacks than whites are engaging in prohibited conduct which leads them to be arrested" (9). This lesson in statistical interpretation is crucial to disparate impact analysis. But by showing that disparate impacts can be handled badly, Kennedy does not refute that they can also be handled with care. Kennedy actually strengthens the case for such a clinical approach when he points out that the cause of such disparity may not be direct discrimination, but some other form of "racial wrongdoing" (10). Why not then refer to all such forms of racial wrongdoing as racism? "It is important to avoid wrongly stigmatizing police officers" (10). But this is just how the alternative definition of racism gives us the flexibility to address "racial oppression" without necessarily instigating broadsides against individual egos.

At the level of intuition, Kennedy is in conflict with his own logical terminology of racism. And I think the confusion results from a usual misunderstanding between liberal and radical theorists. The radical theorist has usually studied the difference between "conspiracies" and "logics of interest," but liberal theorists who do not understand the distinction are likely to hear "conspiracy" whenever radicals talk about "logics of interest." The radical may say that racism persists--as deeply rooted as prairie grass--but the liberal takes this form of analysis to impute a conspiracy of vicious intent. Now the radical does not want to deny that actual conspiracies are part of racism's work, but the radical's terminology exceeds the liberal's construction of what racism is. Thus Kennedy talks past Butler. Meanwhile, Kennedy pleads passionately that we acknowledge racism's "disparate impact" upon the death penalty. And in this case, he complains that we have not taken statistical analysis seriously enough. Kennedy's intuitions have led him to embrace "disparate impact" analysis in this instance, but it is not clear that he has grappled with the systematic, logical consequences of such a need.

Kennedy swims with the stream of current legal trends as he generally eschews "disparate impact" and limits his terminology to intentional acts of will. Thus Kennedy reaches the logical conclusion indistinguishable from our most reactionary thinkers, that any action made in consideration of skin color is discrimination plain and simple. It would be wrong, for instance, to try to select an integrated jury. Opposed as he may be to all-white juries, Kennedy's logic of terms leads him directly to the conclusion that trying to "include" black jurors would be just as "toxic" as trying to "exclude" them. Chiming with today's drifting chorus, integration with malice aforethought is made the moral equivalent of segregation, whether de facto or de jure. With just this conclusion, following as it does "the established standards of white middle-class Americans," Kennedy could not be more instructive as to how "the politics of respectability" is prepared to make an impact upon racism in the law today. In the end, I don't think Kennedy's own intuitions will allow him to live comfortably with such conclusions for long.

Clayton and Crosby.
Kennedy, Randall. Race, Crime, and the Law.
Skrentny, John David. The Ironies of Affirmative Action.


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