One exchange from their dialogue:
Yes, that’s right. I realize, of course, that what judges do does not automatically translate into social change. In the law and society movement, we’re always talking about the gap between “law in books” and “law in action,” and certainly you can make that same connection between what courts say and what courts are able to do, and that gap has been explored. Nevertheless, I think it’s also true that courts give people ideas, and they reinforce ideas that are already in civil society. For example, with regards to something like gay marriage, the more there is a judicial recognition of some kind of civil union, the more it becomes part of the civic discourse.
Talking about the more subtle form of racism, you use the term “aversive racism,” from the field of psychology. My sense toward the end of your book is that you’re suggesting perhaps there needs to be a jurisprudential strategy that takes aversive racism into account.
I’m saying that one place to begin a more realistic discussion about racial disadvantage and racism would be through judicial decisions like the [Edward James] Clary case that really push the issue of unconscious racism. Because the only way you deal with unconscious racism is to confront it. It doesn’t go away any other way, and so it disturbs me that we’re in this period of denial about what’s going on. It is a shame that the Clary case got very short shrift on appeal.
What we have now is an impoverished dialogue in places of power. You almost can’t help but notice that when you read the language the Sentencing Commission and others use in talking about the mandatory minimums and other harsh things Congress did as they confronted crack in the mid-1980s, and in describing how they have refused to change the law significantly. These officials carefully stick to the script that “it could be perceived to be” racist that we have this crack-powder disparity. Not that it is racist to maintain these laws, but that “it could be perceived” to be so by some unnamed and possibly over-sensitive people. This charade persists because the prevailing idea defines racism in terms of intention. It is fighting words to call anyone an intentional racist. So we avoid this term, then, presto, racism almost doesn’t exist. But of course we have these impacts that “some people perceive” to be about race. You know, it’s crazy. We ought to be saying, “Well wait a minute. Let’s dig into this. There’s got to be some unconscious emotional stuff going on here that led us to intolerable results. We can blame people a generation ago for setting this up, so we can talk about this more openly. They drastically over-reacted to the crack phenomenon in part because it was perceived as a Black drug. We need to change the law.” I’d like to see that kind of dialogue get going in criminal law reform.
Read the entire interview.
The Page 99 Test: Doris Marie Provine's Unequal Under Law.
--Marshal Zeringue