The Paradox of Race and Crime: A Comment on Randall Kennedy's Politics of Distinction
![handle is hein.journals/glj83 and id is 2575 raw text is: ESSAYS
The Paradox of Race and Crime: A Comment On
Randall Kennedy's Politics of Distinction
DAVID COLE*
Practicing what he calls the politics of distinction, Professor Randall
Kennedy argues that critics who claim the criminal justice system is racially
discriminatory because it has incarcerated a disproportionate number of
African-Americans are misguided.' While liberal criticism of the criminal
justice system has traditionally focused on the disparate harms inflicted on
black defendants or suspects by law enforcement officials, Kennedy stresses
that other black citizens-the law-abiding-are benefited by the incarcera-
tion of large numbers of black criminals, because most crime is intraracial.
Kennedy maintains that the racially disparate results of the criminal justice
system do not harm black citizens as a class, because only a lawbreaking
subset of that class is harmed, while a law-abiding subset is benefited.
Because the system benefits some black citizens while burdening others,
Kennedy argues that it does not discriminate on the basis of race.
Kennedy's article astutely recognizes a paradox: African-Americans are
disproportionately affected by both crime and criminal law enforcement.
Because so much crime is intraracial, reducing the number of African-
Americans prosecuted and incarcerated may leave the law-abiding African-
American community underprotected from crime. Given the choice,
Kennedy aligns himself with the law-abiding community and maintains
that the main problem confronting black communities in the United
States is not excessive policing and invidious punishment but rather a
failure of the state to provide black communities with the equal protection
of the laws.2
* Professor, Georgetown University Law Center. I would like to thank Charles Lawrence,
Elizabeth Patterson, Gary Peller, Mike Seidman, Mark Tushnet, and Pete Wales for their
comments on earlier drafts of this essay.
1. Randall Kennedy, The State, Criminal Law, and Racial Discrimination: A Comment,
107 HARV. L. REV. 1255, 1260 n.20 (1994) [hereinafter Kennedy, The State]. Kennedy
borrows the politics of distinction from Regina Austin, who defines it as emphasizing the
difference that exists between the 'better' elements of [the African-American community]
and the stereotypical 'lowlifes' who richly merit the bad reputations the dominant society
accords them. Regina Austin, The Black Community, Its Lawbreakers, and a Politics of
Identification, 65 S. CAL. L. REV. 1769, 1772 (1992). While Austin urges that we move beyond
the politics of distinction, Kennedy makes it the centerpiece of his analysis.
2. Kennedy, The State, supra note 1, at 1256. This argument recalls an argument Kennedy
made in Randall Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme
Court, 101 HARV. L. REV. 1388 (1988) [hereinafter Kennedy, McCleskey]. In that article,
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The Paradox of Race and Crime: A Comment on Randall Kennedy's Politics of Distinction
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