American in Black and White: One Nation, Indivisible

National Review, Dec 22, 1997 by John J. DiIulio

America in Black and White leaves unexplained why so many blacks experience everything from white slights to white flight as evidence of racial prejudice, why so many claim to have been hassled for such offenses as DWB (driving while black), and why so many are convinced that black defendants consistently get a raw deal from the justice system. My unscientific, the-plural-of-anecdote-is-data opinion is that many blacks feel that way because many, from ex-offenders on the streets of Trenton, New Jersey, to graduate students on the streets of Princeton, New Jersey, actually do experience such things when dealing with whites. Period.

In Race, Crime, and the Law (reviewed in NR, June 30, 1997), Harvard law professor Randall Kennedy argues more systematically that the perceptions of white unfairness often mirror the reality, especially in courts of criminal law, in prisons, and on death row.

For the most part, Kennedy's arguments are right on target. He acknowledges that the biggest victims of serious crimes committed by blacks are other blacks. He disputes the belief that racism is behind stiff sentences for dealing crack or aggressive law-enforcement efforts against urban street thugs. And he calls for greater police and public sensitivity to the fact that young black males, in particular, often are subjected to greater scrutiny (in stores, on streets, on highways) simply because they are black.

On the death penalty, there are scores of empirical studies, but Kennedy gives the most weight to a statistical analysis tailored in part to assist a defense team in a murder trial. He is thereby convinced that there are racial disparities in the disposition of a select group of death-penalty cases in which blacks who killed whites (not tortured or slaughtered them but, if you will, merely murdered them) were more likely than comparable defendants to receive a death sentence.

One problem with all such studies is their arbitrary (or non-existent) measures of legal and criminal-background variables. A separate but equal problem is how to draw valid real-world empirical inferences from such research. One can conclude (as I do) that the post-1972 death-penalty studies show no trace of racism, and still believe (as I also do) that the everyday realities of how the system works, if only as experienced and reported by citizens who have witnessed or participated in the process, suggest that like cases are not always treated alike across racial lines.

A more fundamental problem resides in the effort to squint for statistically significant traces of racism in a select sample of black-on-white homicides that have dripped, case by case, from the end of the justice system's funnel after thousands of killers have copped all manner of pleas, and thousands of gallons of innocent blood have been spilled by convicted killers who, without regard to race, remain dozens of times more likely to be released from custody than to receive life sentences, serve time on death row, or be executed.