Jodi Kantor’s NYT story about Barack Obama’s legal thinking, hung on the news peg of his upcoming choice of a new Supreme Court justice, has the following tidbit, based on a student’s account of Obama as a law prof:
But when it came to sentencing laws, Mr. Obama led Mr. Bonin in a more conservative direction than the student had expected. The primary victims of black criminals were fellow blacks — and so minority neighborhoods had an interest in keeping sentencing laws tough, he taught.
Now I don’t think that’s quite right (and of course I can’t be sure that it’s what Obama said; I seem to recall a time when a student didn’t get every nuance of something I said in a lecture). It’s not at all clear that the benefits of “tougher” sentencing outweigh the costs, especially in high-incarceration neighborhoods.
But the central point is that African-Americans (not “minorities” generically) bear a heavy burden of victimization as well as a heavy burden of incarceration, and public policy ought to take both sides of the equation into account. Right now, it’s much safer (in terms of the risk of punishment) to victimize someone in a poor black neighborhood than in a prosperous white neighborhood. “Equal protection of the laws” is a constitutional mandate, but it’s not a fact. Changing that is at least as important a goal as reducing the number of black people behind bars.
I’m not surprised that Obama gets that point, but lots of law professors, and liberal politicians, miss it.
Update Someone who claims to be the source for the story adds some detail. No, the echo you heard of Randall Kennedy wasn’t an accident:
I can clarify, for what it’s worth: what I recounted to Kantor was some of the stuff Randall Kennedy was working on at the time (which Prof. Obama assigned to us as reading) — some of the precursor papers to Race, Crime and the Law. That the papers led me in that direction should not be taken as an indication that that’s where Obama himself is; I honestly don’t remember.