Joel Jacobsen

My local paper ran a story today about a task force designed to eradicate racial profiling by the Albuquerque Police Department.  The first step, the task force declared, is to require police officers to record the race of every citizen with whom they come into contact.

The task force's co-chair, a former judge, explained: "What's not understood is that without data collection, we can't have a plan.  It's the heart of any city's biased-based policing plan."  (Yeah, but can he say "biased-based policing plan" five times fast?)

The logic is impeccable, but you have to wonder if making cops think about a person's race or ethnic identity is really the ideal first step in teaching them not to take a person's race or ethnic identity into consideration. 

In 1986, the U.S. Supreme Court took a firm stand against the systematic racial discrimination that characterized the American legal system of the 1950s and 1960s.  (See post 57.)  In a series of decisions that began that year with Batson v. Kentucky, the Supreme Court has ruled that, in order to prevent lawyers from engaging in racial discrimination during jury selection, lawyers must consider the race or ethnic identity of prospective jurors. 

The essence of the long string of cases interpreting and expanding Batson - Batson is what lawyers, with pre-Freudian innocence, like to call a "seminal" case, with lots of "progeny" - is that if there is any indication that a prosecutor is basing decisions on race during jury selection, the defense attorney has an obligation to call him or her a racist.    "Obligation" is not an exaggeration:  it's professional incompetence for a defense attorney to miss a chance to accuse the prosecutor of racism.  It doesn't matter whether defense counsel actually believes it.

(In theory, what goes around is sauce for the gander, but a prosecutor's successful Batson motion will only lead to a claim on appeal that the defendant was denied his right to challenge jurors.  So tables on this one-way street are only sparingly turned.) 

To eradicate the tendency to think of prospective jurors in terms of race and ethnicity, the courts insist that lawyers think of them in those terms.  Like the biased-based policing plan, the logic of Batson is impeccable and the purpose is noble, and yet one might wonder just a little bit about the real-world effect.

In his insightful book Racism: A Short History, George Frederickson writes: "the essence of racism is not biological determinism per se but the positing, on whatever basis, of unbridgeable differences between ethnic or descent groups".   That is also the essence of Batson.  All prospective jurors must belong to one or another group, and there are objectively-determinable divisions between them.  

Leonard Thompson was writing about the old South Africa when he wrote that "[t]he core assumption is that races are the fundamental divisions of humanity".  But that's the core assumption of Batson, too.  In the name of stamping out the thinking that conceptualized unbridgeable differences between ethnic and descent groups, the Court institutionalized it.