integrated schools.
• “RACISM IS OVER”: Reactionary judges and politicians proclaim that the days of racism are over, and that taking race into account is a form of invidious discrimination—against whites. Fortunately, other judges express a view that reflects the history and text of the Thirteenth, Fourteenth, and Fifteenth amendments. Rejecting a challenge to affirmative action at the University of Texas, the Supreme Court majority, in an opinion by Justice Anthony Kennedy, returned to the principles the Court has expressed in Sweatt v. Painter:
A university is in large part defined by those intangible “qualities which are incapable of objective measurement but which make for greatness.” [Quoting Sweatt.] Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.
• “STAND YOUR GROUND”: In the common law of England, which was largely imported into the United States in the 1700s, a person faced with potential deadly force had a duty to retreat if possible and avoid a confrontation.23 Within the last two decades, almost every American state has enacted one version or another of a “stand your ground” rule, by which use of deadly force is justified whenever a person honestly apprehends fatal danger. The ostensibly neutral rule of the law is therefore that killing another human being is justified based on a rational perception of danger. In practice, “stand your ground” has been disproportionately invoked to justify white violence against people of color.
• “TO PROTECT AND SERVE”: By now, the mythology of a police presence that, without racial bias, serves and protects all persons has been exposed. In 2017, in the United States, nearly 1,000 people were shot and killed by police officers. More than 50 percent of those killed were non-white. CNN reported in 2016 that black men are three times more likely to die from police shootings than are white men. Yet prosecutions of police officers are relatively rare, because prosecutors offer up ostensibly race-neutral excuses for police conduct. In 2014, NBC reported that being killed by a police officer was the second most prevalent form of homicide in Utah during the previous five years. The police killings were, again, disproportionately of persons of color.
• “WE ARE HONORING HISTORY”: Statues of Confederate leaders are in public spaces throughout the American South. A huge bas-relief carving of Robert E. Lee, Stonewall Jackson, and Jefferson Davis, at Stone Mountain Park in Georgia, is one of the most famous of these.24 Most of the Confederate monuments have a decisively ugly history. They were not erected when memories of the Civil War were fresh. They were put up as part of the white supremacist populist wave of the early twentieth century. Many of them were erected with the support of the Ku Klux Klan. Stone Mountain’s connection to the Klan is particularly odious and extensive; it was the site of many significant Klan rallies in the years since the memorial was carved. The movement to take down the so-called Civil War statues is not designed to erase history but to reclaim and demythologize it.
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Mythologies of Criminal Justice
PALLADIUMS AND CITADELS
THERE HAPPENS, UPON OCCASION, a judicial utterance so arresting as to require study and contemplation for what it tells us of the world in which judges dwell.25 One such utterance is Justice Black’s summing up for the majority in Illinois v. Allen,26 holding that a trial judge confronted with an obstreperous defendant might hold the man in contempt, bind and gag him, or exclude him from his trial. Such a holding is necessary, the justice said, to show that “our courts, palladiums of liberty as they are, cannot be treated disrespectfully,” and so that they will “remain … citadels of justice.”
As I wonder how Justice Black could have penned that paean with a straight face, I am reminded of my first appearance in the New York criminal courts at 100 Centre Street in Manhattan. In a desperate attempt to preserve the image of justice, someone had put a big plastic bag over the American flag on the judge’s dais. The bag was yellowed and grimy. Behind the judge, an incomplete set of tarnished metal letters proclaimed: IN GOD WE RUST.
I went back to 100 Centre Street in 2018. The walls have been painted and missing aluminum letters restored. The rest of it is pretty much the same.
“In the halls of justice,” Lenny Bruce used to say, “the only justice is in the halls.” Maybe not in the halls, either, for that is where the plea bargains and lawyer-client conversations take place.
Learned Hand served as a federal judge in New York for more than forty years. His view of palladium and citadel was not so sanguine: “I must say that, as a litigant, I should dread a lawsuit beyond almost anything short of sickness and death.”
No, for the men and women caught up in them, the criminal courts are neither palladiums of liberty nor citadels of justice. Citadels, perhaps, in the sense used by an English author in 1598: “a citadell, castell, or spacious fort built not onely to defend the citie, but also to keepe the same in awe and subiection.” Unfortunately, the constitutional revolution in criminal procedure has amounted to little more than an ornament, or golden cupola, built upon the roof of a structure found rotting and infested, assuring the gentlefolk who only pass by without entering that all is well inside.
MASS INCARCERATION AND SOCIAL CONTROL
Assume that Canada and the Western European countries have about the right number of people in jail. Assume that the social problem of crime in those countries is not terribly different from that in the United States. Understand that the United States incarceration rate is five to seven times that of those other countries. If these assumptions, and this understanding, are even nearly valid, 80 percent of the people in American jails should not be there. This is mass incarceration.
The heavy toll of jailed people reflects the extent to which the criminal process is used as a mechanism of social control, directed mainly at the poor and at people of color. Thirteen percent of the U.S. population is African-American; 64 percent of those incarcerated are African-American. Sixteen percent of the population is Hispanic; Hispanics are 19 percent of the incarcerated. Until the Supreme Court began to address the issue in 2012, the United States had more than 2,500 people serving life without parole for offenses committed before they were eighteen. That was global first place; Israel came in second, with seven. This is not to mention that the United States remains one of the few countries of the world that still has the death penalty.27
These figures portray what I term the substantive aspect of the issue, which could also be called over-criminalization. Minor social deviance makes you subject to criminal punishment, and for prison terms that are far longer than those imposed in other countries.
Perhaps more significantly, police and prosecutorial discretion is exercised in racially discriminatory ways. A study that became the basis for a Supreme Court case, McCleskey v. Kemp,28 found that prosecutors were 4.3 times more likely to seek the death penalty when a black person was accused of killing a white person than when a white person was accused of killing a black person. The Supreme Court’s decision refusing to take the study into account in assessing the constitutionality of the death penalty has been condemned as one of the worst in U.S. history. Professor Anthony Amsterdam called the case “the Dred Scott decision of our time.”29
How could such a system persist without being attacked and torn down as an obvious instrument of racism and repression? The proceduralist would tell us that these figures are not reason for alarm, for every person faced with incarceration has a mythic array of due process rights. I sat at dinner with a
