Vol. 9 No. 6 (June 1999) pp. 214-216.

NO EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN CRIMINAL JUSTICE SYSTEM by David Cole. New York: The New Press, 1999. 217 pp.

Reviewed by Randy Glean, Department of Political Science, Midwestern State University.

David Cole offers a compelling assessment of the criminal justice system and its enigmatic flaws with regard to the issue of race. Like several other scholars, Cole highlights the paradox of our quest for color-blind justice and the empirical reality of our color-coded justice system. He collated and reproduced a plethora of empirical studies and supplemented them with rich case studies to artistically debunk the myth that the outcomes in the system are attributable to only race-neutral factors. The genius in this book is its simplicity. The appeal is in the calm, methodological approach that does not subject the reader to an advocate’s sermon.

NO EQUAL JUSTICE examines almost every aspect of the criminal justice system with one observable and perhaps understandable omission (to be discussed later). Cole looks at street level policing, selective prosecution, legislative processes, appellate processes, Supreme Court decisions, jury selection and decision-making, and sentencing. He goes further to a structural cost analysis of the consequences caused by the flawed system, and then he offers some common sense remedies.

Cole starts off with perhaps what is arguably the most salient domestic issue in the nation today–police/minority relations. In an era where revelations of race-profiling, DWB, and police brutality cases have prompted a re-inquiry into the alleged inequities in the system, Cole’s analysis is both revealing and timely. Consent searches, he argues, are inherently coercive and used in an intimidating manner to "rob" primarily minorities of their right to refuse such searches. He also classifies the doctrine of "seizure" versus "detention" as applied in "Terry stops" or "stop-and-frisk" as street level discretion often abused by police to disproportionately target minorities. Under the "reasonable suspicion" provision Cole argues, police can apply a lower standard than "probable cause" to effect a "seizure" based only on an "intuition."

Cole’s analysis of the reality and consequence of "quality of defense" is perhaps the most sobering argument in the book. Using the case study method as effectively as possible, he highlights a series of egregious examples of "ineffective assistance of counsel." He then presents the evidence from large empirical studies to show both the micro and macro effects of the systemic flaws. The death penalty with its inherent severity is used to illustrate the racial disparities caused by inadequate defense. Cole references the sincere intent of rulings in celebrated cases like POWELL v ALABAMA (1932) and GIDEON v WAINWRIGHT (1963), and compares that intent to the current reality. In so doing, he presents a balanced synopsis of both sympathetic and unsympathetic appellate rulings. It is unclear as to whether that was a deliberate attempt to show the inconsistencies in the system or the often arbitrary outcomes of the contemplative judicial process.

Cole understates what could have been his most effective angle–the complicity of the legislative branch for the disparities in the criminal justice system. He illustrates well, several legislative responses to trends in criminal activity. Marijuana laws became more lenient when white college students adopted it as their drug of choice. Crack users and sellers are penalized much more severely than pure cocaine users in legislatively mandated sentences. Significantly more black drug offenders are processed through the more severe federal system than their white counterparts. Since the cues from the legislative to the judicial branch form a critical link to the attitudes that pervade the system, it was perhaps one area that could have been better developed. While he points out the empirical fact that three-strike laws also affect African-Americans disproportionately, he did not pursue the conceivable link to probable legislative intent of just such outcomes. Social scientists might be more inclined to make such inferences even with the case study method as that could be substantiated through an examination of the legislators’ votes and their core constituencies. In Cole’s defense, however, he explicitly concludes that the white majority would not tolerate white incarceration rates at representative levels and certainly not at the levels of black incarceration.

NO EQUAL JUSTICE demonstrates the pervasiveness of race as a determining factor in criminal justice processes most effectively by examining the use of peremptory challenges used by prosecutors. Noting that courts have failed to offer a single favorable ruling on race-specific application of criminal law for the century from 1880 to the 1986 BATSON v KENTUCKY ruling, Cole presented compelling examples of thinly veiled race-based decisions that were subsequently justified under the lenient responses to BATSON challenges. Though prohibited from using race, prosecutors often offer the most ludicrous nonracial explanations for their peremptory strikes of black prospective jurors only to have those explanations accepted by appellate judges.

Additionally, Cole points out that the system guards itself against challenges to racism. The most critical example of that self-sustenance exists in the realm of the death penalty. The standard, set by the court for proving discrimination in McCleskey v Kemp (1986), a capital penalty case, is instructive in that the standard has never been met, cannot be met without a blatant admission from a prosecutor, and is so frustrating that it is seldom attempted. Cole shows that judges, particularly on The Supreme Court and other appellate courts, have shielded themselves from dealing with the reality of the system’s inequities with a series of convoluted rulings and promotion of a doctrine of color-blindness in a system marred by color consciousness.

The critical omission, may well be contained within the wall that the system constructs around its key actor and decision-maker–the prosecutor. Cole cites the empirical fact that prosecutors selectively target minorities for the harsher federal system in drug cases, but he did not highlight sufficiently the awesome power and almost unbridled and unchecked discretion that prosecutors actually wield. Many of the processes examined from jury selection to sentencing, are in fact tarnished by antecedent conditions most notably prosecutor’s charging decisions. The political ambition, personal whims, and policy preferences of the prosecutors are all "guiding" factors that are not accounted for within the letter of the law. Cole was less attentive to this reality than social scientists might be, but that omission harbors a critical explanation.

Nonetheless, NO EQUAL JUSTICE is a compelling read. It is very clear, articulate, well presented, well documented and highly salient. Cole effectively weaves the existing empirical studies with his well-chosen case studies to demonstrate the flaws and inconsistencies in the system without appearing to promote a political agenda. This book would be a great reader for criminal justice seniors and a good eye opener for aspiring legislators at all levels. Although the book is legalistic, social science is well represented in the generous references to the empirical studies and the implicit social and political questions contained in this volume.