The Color of The Law
In 1991, a visiting Jewish scholar, Yankel Rosenbaum, was fatally stabbed in Brooklyn by a black mob outraged that a black youngster had been run over and killed by a religious Jewish motorcade. Rosenbaum lived long enough to identify Lemrick Nelson Jr. as the stabber, but a largely black jury did not convict Nelson. Later, some jury members went partying with Nelson to celebrate the acquittal. Nelson subsequently moved to Georgia, where he was convicted of slashing a schoolmate.
At the time, it appeared to be an act of race-based jury nullification, and, though the word didn't pop up, it was clear that something very unusual had occurred and that many of the city's Jews had suddenly withdrawn their faith in the local criminal justice system.
Blacks, of course, have their own historic reasons for doubting the fairness of cops and courts. Enormous injustices were inflicted on blacks over the years, and not just in the South, where blacks accused of attacking whites were almost automatically convicted. But as the system has changed, with more black jurors showing up, a different kind of racial surprise appeared.
In New York, a few high-profile black defendants unexpectedly got off, including a drug dealer who shot several cops and a 19-year-old who shot and killed a white priest, then confessed and claimed that the priest had approached him for sex.
Now, in the wake of Johnnie Cochran's over-the-top, send-them-a-message summation in the O.J. Simpson case, the Wall Street Journal reports that what appears to be a racial nullification movement is humming right along. The Journal found that some black jurors "are choosing to disregard the evidence, however powerful, because they seek to protest racial injustice and to refrain from adding to the already large numbers of blacks behind bars."
If so, that's a very ominous development indeed. An explicit attempt to politicize jury verdicts along racial lines would clearly put the whole, faltering criminal justice system at risk, with many unforeseen consequences.
The Journal lists a string of jury decisions that may reflect the impulse toward nullification, including the acquittal of Washington Mayor Marion Barry, on 13 of 14 counts in a sting operation conducted by the FBI, and the acquittal of some of the defendants charged with beating trucker Reginald Denny during the 1992 Los Angeles rioting.
Racial acquittals. The Journal also points out, for what it's worth, that conviction rates are unusually low in heavily minority areas--28.7 percent of felony trials in Washington, D.C., and 30 percent in Detroit ended in acquittals, both significantly high rates. In the South Bronx, more than 47 percent of African-American defendants are acquitted, about three times the national average.
Some racial division on juries is simply the result of different people bringing different life experiences into court and viewing evidence through different lenses. And some is based on the fact that many blacks are less likely than whites to believe the unsupported testimony of a police officer, even if the officer is not Mark Fuhrman. That's well within the normal functioning of juries.
But now we are starting to hear various racial pleas to ignore evidence and free black defendants either as a political protest against a system perceived as oppressive and racist, or as a way of reducing the high number of black males in the prison system. Paul Butler, a black criminal-law professor at George Washington University, takes a cool cost-benefit approach: In cases that don't involve violence, he thinks, black jurors should "presume in favor of nullification" because the community needs the help of accused offenders, even guilty ones, to rebuild itself.
Law professors who advocate freeing guilty people of their own race, but not others, are an excellent indicator of identity politics at work. As columnist George Will wrote last week, the "diversity" people have to accept some responsibility for "the politics of thinking that you are but a fragment of the racial or ethnic group to which you belong and you have few if any obligations beyond it." Obligations beyond the tribe indicate a concern with justice, which used to be of some interest to professors of law.
Because of the anguish of losing so many young men to the prison system, some blacks now seem willing to look past crimes and talk about a system that "criminalizes" its young. The argument buried in "criminalized"--if the defendant shot somebody, it's society's fault--is often made even sharper. A Boston Globe columnist wrote recently that "we are rounding up the people our economy does not need and consigning them to concentration camps."
At the law schools, something called "critical race theory" spreads the notion that law is nothing more than a politicized expression of white power and that blacks can never hope for justice from whites. Writing in the Manhattan Institute's City Journal, Heather Mac Donald says many law students now assume as a matter of course that the law has a color. She says the president of the Harvard Law Review told her: "You can't study criminal law and not have race come up a lot. The mere fact that so many defendants are black means that the law treats blacks differently."
Tribal politics and woolly thinking may be setting the stage for a nullification movement that could inflict some very serious damage, including the isolation of blacks from their natural allies. Don't we all want to rethink this?
This story appears in the October 16, 1995 print edition of U.S. News & World Report.