Why Respectability is Not Enough

This article is a review of Randall Kennedy’s Race, Crime, and the Law book. It provides a detailed analysis of the text and focuses on Kennedy’s commentary regarding the politics of policing, the death penalty, the war on drugs, and his opposition to Professor Paul Butler’s proposal of racially based juror nullification in drug cases. Professor Scully’s primary concern and criticism of Kennedy’s book is that his analytical framework is deeply entrenched in the ideology of “respectability”. Professor Scully argues that although Kennedy’s “politics of respectability” provides interesting narrative, it does not offer an adequate solution to the current racial justice crises in the American criminal legal system. Specifically, this article challenges Professor Kennedy’s commitment to “the politics of respectability” which requires Black people to refrain from engaging in conduct that might offend white Americans. The theory of “respectability” posits that if African Americans conform their conduct to the “sensibilities of the white middle class,” white citizens will be more likely to respect and support the cause of racial justice. Kennedy’s theory of respectability divides the Black community into “good Negroes” and “bad Negroes”. He explains that “bad Negroes” are black defendants and convicts where as black victims of violent crime are “good Negroes” who deserve the respect and support of white middle-class America. By electing to focus on his politics of respectability, Professor Kennedy devotes very little time in his book to discussing the plight of black defendants. Consequently, he ultimately subordinates the interests of the black defendant to his own desire to be respectable. In section II of the article, the author examines how Kennedy’s “politics of respectability” affects some of his most important conclusions regarding current public polices that affect policing and the war on drugs. For example, he raises the question of whether it is proper for police to make race-based decisions. In answering the question, he points out that the current state of the law permits a police officer to use race as a factor in the decision-making process if race is “reasonably related to law enforcement aims” and is not just a pretext for racial harassment. Kennedy is displeased with this standard and proposes an alternative which would permit police officers to use race as a proxy for increased risk of criminality only in “absolutely extraordinary circumstances.” Professor Scully questions whether race is ever a legitimate factor to be used in policing and she challenges Kennedy’s proposal on the grounds that (1) it is so broad that practically any police situation could qualify as “extraordinary,” (2) it furthers the stereotype and frightening media image of the violent black criminal, and (3) it continues to provide more fodder for those who already believe that the link between race and violent crime is inextricably woven. This article also examines Kennedy’s positions on the war on drugs and two key issues in this war – fetal endangerment and the crack versus powder cocaine sentencing. Professor Scully posits that the war on drugs has had the most devastating impact on the black community since slavery. This devastation has contributed to the mass incarceration of black men and women and fosters the perception of moral inferiority, which brands the entire community as a “criminal.” Given these dire circumstances Professor Scully concludes that if Kennedy’s “politics of respectability” prevents lawyers from using the law to engineer social change in the tradition of the great lawyer and architect of Brown v. Board of Education, Charles Hamilton Houston, then it is an ideology that is not only disappointing but it is a disastrous impediment to our quest for racial justice in the criminal legal system.