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Of Crime and Race

I found interesting the recent firestorm of criticism over the comments of Barack Obama's pastor, the Reverend Jeremiah Wright.  For those who just emerged from a week-long stay in a sensory deprivation tank, YouTube, the Internet, and the talking heads on the cable news shows have regaled us with excerpts from Reverend Wright's sermons, in which he waxes indignant on the subject of racism in American, his comments running the gamut from the mildly unsettling (America was "founded on racism") to the appalling (calling this country "the U.S. of KKK-A") to the absurd (the government infected blacks with the AIDS virus).

I found it interesting because I think those of us who practice criminal law have a unique vantage point on race in this country.  Crime is the issue along which the tectonic plates of race in this country shift.  Whether it's James Byrd being dragged to his death, or a white lawyer being pounced upon and beaten savagely by a group of black kids, when we talk about crime, race is never far from the surface.  And oftentimes, such as in the case of the Jena Six, the issue is so incendiary that both sides come up with wildly divergent narratives as to what happened.

This is not without basis.  The black population of Cuyahoga County is about 30% of the total, yet if you go onto any floor of the Justice Center, the defendants sitting in the lobbies awaiting the results of their pretrials are overwhelmingly black.  No reasonable person can dispute that blacks commit crimes disproportionate to their numbers.  Whether this is because of economics or class or culture -- and it is a combination of the three -- it is ultimately perceived to be because of race.

But perception feeds reality.  Driving While Black is not a relic of the 1950's, but a more recent phenomenon, in which black drivers are routinely pulled over for the most trivial of traffic violations, often resulting in "consent" or "plain view" seizures of drugs or other contraband.  The penalties for possession or sale of crack, a black man's drug, are several orders of magnitude higher than the penalties for cocaine, a white man's drug.  Georgia used to have a law mandating life in prison for a second drug trafficking offense; prosecutors, who were given the discretion of seeking it, did so five times more frequently for black defendants than for white ones.  The law was repealed in 1996, when the state came to the embarassing realization that of 573 defendants serving life imprisonment under the statute, a mere 13 were white.  It's little wonder that while blacks make up 12% of the population and comprise 13% of drug users, they are 35% of those arrested for drugs, 55% of those convicted, and 74% of those imprisoned.  People talk about the devastation that crack has wrought on the black community, but give little thought to how that community might have been impacted by seeing one-third of its young males wind up in prison, on probation, or parole.

Which is why, if I had to distill my 30 years of practicing criminal law to a single observation, it would be this:  It never hurts a defendant to be white, and it never helps a defendant to be black.  Regardless of everybody's best intentions, the perception of race and crime will dictate the reality.

I don't know what to do about all this, and sometimes it troubles me.  I find myself lapsing into stereotyping clients, and I know judges and prosecutors do, too.  We have very little in common with the people we defend, prosecute, or sentence, and that eventually comes out.  Empathy should play a role in a justice system -- it's hard to decide what to do with a person's life, which is basically what the system has to determine -- without having any understanding of that person.  Yet we do it all the time.  After a while, the faces, the stories, the presentence reports of broken homes and school failures and juvenile adjudications, all run together. 

Without getting into the political stuff, there were times this year when I thought that maybe we had all reached the point where we could get beyond the racial issue.  I'm really not sure that we can.  I think, anymore, the perception and the reality have become indistinguishable, and neither is likely to change.

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