Tilted Scales - Review

Washington Monthly, March, 1999 by Colman McCarthy

In my conversations with juveniles imprisoned at the Oak Hill Youth Center, in Laurel, Md., the names of D.C. Superior Court judges frequently come up. Almost always, inmates vent at the robed men and women who impose sentences on the Oak Hill population that is nearly all African American, poor, and ill-educated.

Anyone who reads David Cole's No Equal Justice will understand why these teenagers have less than cheery opinions about their judges. To them, the beleaguered men and women of the bench symbolize a system that is rigged against them. "The criminal justice system's exploitation of inequality," writes Cole, "creates a discrepancy between the formal rules, under which criminal responsibility is a function of individual culpability and all are equal before the law, and actual practice, in which who you know, how much money you have, and the color of your skin all play an important role in criminal justice outcomes."

Cole, a professor at Georgetown University Law Center (disclosure: I am on the adjunct faculty at Georgetown, but I do not know the author) and an attorney with the Center for Constitutional Rights, lays out the facts of racial and economic inequality. There is little new material here, but the statistics are harrowing just the same: For every black college graduate, 100 are arrested. African Americans comprise more than half the prison population. And as many as 80 percent of criminal defendants are too poor to hire a lawyer.

Cole writes as an advocate for reform, which places him in the company of those mostly anonymous citizens working to protect the powerless from the powerful by creating one standard, not two, in criminal law. Will change come about anytime soon? Cole is too aware, too experienced, and too chastened to conclude anything but the obvious: Reform will be "extremely difficult." First, he says, we must recognize that under our current judicial system every person is not equal before the law. Then, Cole continues, "we must identify and develop community-based responses to crime, both at the preventive and punitive stages."

It has the ring of reasonableness, except when it comes to the "we" part. Who is "we"? Cole presumably means the public. But there is scarcely a widespread movement for judicial reform in this country, and this book falls short as a call to arms. Cole would have had better success if he had given as much space to proposing solutions as he does to laying out problems. He devotes only one chapter to possible remedies, and even then he excuses himself from doing the heavy lifting: "A full-scale reform strategy would be another book in itself," he writes.

What No Equal Justice is lacking is a reporter's nerve, a hands-on portrait of the race and class inequality as found in the lives of citizens. Cole is a law professor, at ease with gathering information from studies and case law, and passing it on in cornucopian abundance. But he does not appear to have conducted interviews with imprisoned young blacks or their families. He also did not tap the public interest lawyers, social workers, teachers or judges laboring to reduce race and class disparities. For every problem that Cole analyzes--and he does so credibly and knowledgeably--one or more national groups, from victim assistance programs to public defender agencies, have dug in to battle for the kind of institutional reform called for in No Equal Justice. Why not tell their stories, particularly those that would have added heft to Coles pleas and nudged them beyond "general principles"?

COLMAN MCCARTHY directs the Center for Teaching Peace in Washington, D.C.