How Should Barack Obama Confront Racial Injustice?

In an excerpt from his new book, The Presumption of Guilt, the Harvard Law School professor argues that the president is constrained by deeply embedded attitudes on race.

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One of the most remarkable ironies to contend with is the fact that as we think about Professor [Henry Louis] Gates' [Jr., editor-in-chief of The Root] arrest, President Obama's intervention, the public reaction, and the broader issues of race, class, and crime, we find ourselves at a critical juncture in history. We must rejoice in the fact that Americans were able to put aside race and elect the person they thought was the most qualified individual to serve as president. This celebration echoed from California to Massachusetts, from Florida to Virginia, from North Carolina to Ohio. While this is an important sign of racial progress, it belies the fact that we are still a long way away from achieving Dr. King's dream of a society in which all people are judged by the content of their character, not by the color of their skin.

If America can elect an African-American president, the thinking goes, how can we be accused of having a racially discriminatory society? The mistaken assumption is that since we have achieved so much racial progress, we should discontinue all the efforts to address racial discrimination in the 21st century. Those who believe that we are in a post-racial environment are naive at best or racially insensitive at worst.

The Reverend Eugene Rivers, a feisty African-American minister in Boston, and one of the founders of the Ten Point Coalition, a group of black ministers who fought to reduce violence and crime among young offenders in Boston in the 1980s, has spent most of his professional life working with young black men involved in gangs and seeking to stem the violence in urban communities. In August 2009, Rivers participated in a public forum on Martha's Vineyard, hosted by the Charles Hamilton Houston Institute for Race and Justice and sponsored by the national law firm of Bingham McCutcheon, as a member of a panel entitled "Striking the Right Balance: Addressing Our Individual and Collective Responsibilities to Families and Communities." He said that he was worried by those who viewed the over-exuberant celebration of Obama's election as a manifestation of the arrival of a post-racial America. Rivers implored those assembled that day to not be too quick to assume Obama's election solves our race problem. While Rivers admitted the value of Obama's election, and that it was wonderful to behold the nation embracing Obama, he said that we should not be too eager to claim a victory over racism.

Reverend Rivers also reminded us of how little progress we have really made: "There is one black man in the White House and a million black men in prison." The reverend's timely statement reminds us that we have much more work to do to overcome the barriers of class and race in our criminal justice system.

While this book has identified instances in which conflicts between police and members of the African American community have led to strong feelings of bias, the range of complaints concerning racial bias in the criminal justice system today is much larger. At nearly every stage in the system, we find disparities in punishment, in the provision of adequate defense counsel, and in policies and laws, as well as other forms of bias experienced by African Americans. Marc Mauer, president of the criminal justice advocacy group The Sentencing Project, recently noted that, "in the most profound betrayal of the promise of integration and opportunity, the United States has created a world-record prison population fueled by policies that have exposed substantial portions of African Americans to the life-changing consequences of the criminal justice system."

What Mauer describes as a continuing legacy of slavery places far too many African Americans in jeopardy. That legacy is seen in the increasing disparities in our society. Marian Wright Edelman, president of the Children's Defense Fund, notes in her new study on disparities involving children, "America's Cradle to Prison Pipeline," that disparities start early and continue throughout African Americans' lives.

Edelman describes many instances in which children are pushed out of school, given no meaningful alternatives, and soon find themselves in the criminal justice system as adults. Furthermore, the criminal justice system compounds the problem by continually punishing race more than crime.

One of the greatest ironies in the criminal justice system is the propensity of prosecutors to strike blacks from juries, not because of evidence of a potential juror's actual bias, but presumptions of racial bias. It is a practice that regrettably legitimizes perceived biases of prosecutors while presuming actual bias on the part of potential African American jurors. In several decisions the Supreme Court has chastised prosecutors for removing otherwise qualified African Americans from jury service because of their race. In Batson v. Kentucky, Justice Lewis Powell, writing for the majority, reversed a conviction of an African American defendant because the prosecutor had struck all of the potential black jurors.

Prosecutors' use of peremptory challenges were also held unconstitutional in another Supreme Court case. In Miller-El v. Dretke Justice David Souter, writing for the majority, carefully scrutinized the entire record in the case and concluded that there were repeated instances of racial discrimination in striking African Americans as potential jurors.

Following the lead of Justice Thurgood Marshall nearly two decades earlier in the Batson case, Justice Stephen Breyer, in a concurring opinion, suggested that the use of peremptory challenges should end.