Guest post by Dan Subotnik, Professor of Law at Touro Law Center. 

Owing to its huge impact on minorities, the 1994 Crime Bill is back on the table. Proponents of the law claim that it helped lead to a sharp reduction in crime, especially in minority communities.  Opponents hold that the law supports America’s carceral state through the targeting of minorities, so that, like many other parts of our jurisprudence, the law is racist. Since Hillary Clinton supported, and Bernie Sanders actually voted for the bill, it follows, neither can be trusted.

The charge of racism being especially inflammatory these days, it demands to be tested. To avoid the trap of presentism in doing so, we need to bring ourselves back a generation, something young activists obviously cannot do without some help. So here is National Book Award and McArthur Prize winner Ta-Nehisi Coates talking about his youth in Baltimore. To be black, then, was “to be naked, before the elements of the world, before all the guns, fists, knives, crack, rape and disease. The law did not protect us.”  His memories of the time, he says, are filled with murder:  “I remember being amazed that death could so easily rise up from the nothing of a boyish afternoon, billow up like fog.” In this setting, every day brought a “series of trick questions, and every incorrect answer risk[ed] a beat-down , a shooting, or a pregnancy. “

In “Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment” Michael Fortner deals with the resulting cry for help from the black community. The reader will understand if I cannot recapitulate his work here.

What I want to address is how the debate plays out now almost thirty years later and, more important, what the debate says about contemporary race dialogue generally.

A recent N.Y.Times op-ed article “Did Blacks Back the Crime Bill?” (April 13, 2016) is instructive. The three authors, Professors Elizabeth Hinton, Julilly Kohler-Hausmann and Vesla M. Weaver, faced the challenge of explaining why 26 of 38 black Congresspersons–about 68%–supported the bill (as did ten African-American mayors in such cities as Atlanta and Detroit), even though the NAACP labeled it a “crime against the American people.”  Their explanation is that an earlier version of the bill had included billions for drug treatment and early intervention programs, and this had stimulated their interest;  Republicans, however, threatened to block this bill unless cuts of over $2 billion dollars to the social programs were made. Because they had no choice if they wanted the good stuff in the bill, black lawmakers were pushed to sign on to the “punitive crime policy,” which had paid little heed to “black voices.”

Is that take meaningful?  Were the lawmakers not self-possessed individuals hardened by the ways of the legislative process?  Were they indifferent to the reign of terror which gave rise to the term Superpredator?  The point here is that 68% of the legislators supported the new bill as it was and, indeed, very few of these claimed any kind of coercion in the process. This means that on the whole they found this bill salutary.  If black legislators had opposed the bill, is it even conceivable, particularly under a Democratic president, that the bill would have become law?

This is not to say that passing the bill was a good idea at the time much less that the law is still useful today. It is only to say that if a racially based punitive crime policy–a product of racism, however defined–was near the heart of the anti-crime legislation, the black community and its leadership are implicated.

This brings me to my larger point. If the crime bill was a foreseeable disaster for the black community, why can’t scholars admit to the blunder? I have spent most of my career showing how the legal academy has contorted itself and convulsed the public by exculpating African Americans for their shortcomings and finding myriad ways of inculpating whites for their racism. As best as I can recall, not once in my 35 years of law teaching have I read a law review article that instructed the black community on how to improve conditions for black Americans or that invited a defense by whites to charges of racism.

Readers who want to pursue this matter might want to consult my book “Toxic Diversity” (NYU 2005) and my many articles, including, two that are forthcoming in Academic Questions. I conclude here with a story.  My friend Marie B was born in Jamaica and lived there for many years. During that time her policeman husband was shot and killed.  Her elder son followed his father’s career path, but he too was gunned down. It is not clear whether he was luckier than his father since he survived for a couple of years as a paraplegic before succumbing leaving three children. Marie B now lives in Brooklyn. When at the height of the profiling debate several years back, I asked her for her position on that issue, her response was immediate: “ I am in favor of anything and everything that gets guns out of the hands of our youth.” Listening to black voices does not necessarily mean beating up on whites.