Thomas, Morales, Race, and Crime

City of Chicago v. Morales, 527 U.S. 41 (1999), dealt with the constitutionally of a Chicago ordinance prohibiting "loitering". Specifically, the statute, enacted in response to gang violence, intimidation, and drug dealing, forbid "criminal gang members" from "loitering" with one another or anybody else in any public place. Loitering was defined as staying in any one location without an apparent purpose. The police could order loiterers to disperse, but could not arrest the persons unless they disobeyed the order.

The Supreme Court struck done the ordinance, saying it was too vague. Justice Thomas dissented, and (among other points) wrote the following:

Today, the Court focuses extensively on the "rights" of gang members and their companions. It can safely do so -- the people who will have to live with the consequences of today's opinion do not live in our neighborhoods. Rather, the people who will suffer from our lofty pronouncements are ... people who have seen their neighborhoods literally destroyed by gangs and violence and drugs. They are good, decent people who must struggle to overcome their desperate situation, against all odds, in order to raise their families, earn a living, and remain good citizens. As one resident described, "There is only about maybe one or two percent of the people causing these problems maybe, but it's keeping 98 percent of us in our homes and off the streets and afraid to shop. By focusing extensively on the imagined "rights" of the two percent, the Court today has denied our most vulnerable citizens the very thing that Justice Stevens elevates about all else -- the "freedom of movement." And that is a shame.

I always find it interesting when Justice Thomas brings in his perspective as a Black man when crafting his judicial opinions (and I think that's pretty clearly what he's doing here), precisely because he is (falsely, in my view) alleged to never do so. Each time I read Justice Thomas write, I become more convinced that the claim he simply does not care about Black people -- that he has consciously and deliberately set himself away from the race -- is simply untrue.

After all, the claim Justice Thomas is making here is not unknown in the Black community. Randall Kennedy, writing in (among other locations) his book Race, Crime, and the Law notes that historically Black people in America have faced twin injustices from the criminal justice system: over-enforcement against Black alleged criminals, but also under-protection of Black victims. There is a definitive class within the Black community which, observing the gangs and drugs and street crime that are immolating their neighborhoods, wants nothing else than to see the police come down with an iron fist and crush the criminal element once and for all. That perspective can't be ignored, and it particularly can't be ignored when the communities which are seeking more stringent police enforcement are the same one's that are at risk from police racism -- a statement which may be true in many of America's urban cities. See Dan M. Kahan & Tracey L. Meares, The Coming Crisis of Criminal Procedure, 86 Geo. L.J. 1153, 1169-70 (1998).

The trade-off between risk of racist over-enforcement, and racist neglect on the other, is probably real, (some of the more extreme cases, like the recent apparent execution of an unarmed Black man by a San Francisco transit police officer, can be fought against without serious compromise, but over the broad stroke choices will have to be made) but there is something quite pernicious in largely White outsiders deciding where the line ought to be drawn. There are limits on how much pressure we can put upon the Black population via over-policing so we can feel safe, but there are likewise limits on how much we can deny police protection so we can feel like good liberals making our statement about the racist criminal-industrial complex. One Black student in my criminal law class today, reading Thomas in Morales said that while he doesn't agree with Justice Thomas often, something rubs him the wrong way about very abstract appeals to constitutional values when the folks who are getting killed by them are his aunts, uncles, cousins, brothers and sisters.

But. But. This is not the whole story either. When the Morales opinion was released, Steve Chapman wrote an editorial for the Chicago Tribune ("Court Upholds America's Right to Hang Out," Chicago Tribune, June 13, 1999, p. 19) where he made some important points. First, that Justice Thomas, living in wealthy Fairfax County, Virginia, isn't going to be ordered to leave his own neighborhood simply for talking to someone whom, it turns out, is an alleged gang member. Second, that Justice Thomas' perspective on what is good for the Black community is hardly universal, including amongst Blacks themselves. The ordinance in question in Morales, it turns out, received the votes of nearly all the White aldermen on the council, but the Black membership voted 2:1 against it. They were attuned to the risk that what they were being asked to vote for was essentially a new crime of "standing around while Black" -- and that's something of concern to their community too.

So what's the point to all this? The perspective of Justice Thomas, and those Black Americans who agree with them, is not "anti-Black". It is rooted in a particular conception of what the Black community needs in order to flourish and be safe. The mediation between over-enforcement and under-protection is a difficult question, and the line that Justice Thomas seeks to draw is not necessarily illegitimate. But at the same time, it is at the moment a minority view within the community, and both I and Justice Thomas need to be attentive to that. Insofar as the majority of the Black community still sees itself as more imperiled by police over-enforcement than they do by police neglect, that's an opinion I -- as a voter or a policymaker -- have to give significant(not blind) deference to. And Justice Thomas, for his part, has the right to make his case as to what policies best create equality for the Black community. But he has to be mindful that, being of the minority view in his community, listening to him is not exhaustive, or even sufficient, to say I've "engaged" the Black perspective on the subject.