February 28, 2000
The New York Times

Life, Liberty and Excessive Force
By ORLANDO PATTERSON
The police killing of Amadou Diallo and the exoneration of the four officers
who shot him have naturally set off heated debates on police procedures and
race relations in our cities. But this tragedy has implications of a broader
and more profound nature: when viewed in light of ongoing trends in our
criminal justice system, it exposes deep-seated contradictions in our
conception and practice of personal liberty.

Three of the most fundamental principles of Western liberal democracies are
at issue. One is the right to do what one pleases as long as it entails no
harm to others. Another is equal justice for all. Last is the principle that
no person or other agent, including the state, has the right to tell a
citizen what is in his or her best interest -- a current of antipaternalism
that has always run far stronger in the American idea of democracy than in
other liberal Western countries.

These principles normally work well together, if none is taken to extremes,
as the Western European democracies clearly demonstrate. But developments in
America have placed them on a collision course, especially in the sphere of
criminal justice.

Of course, our liberties have to be protected from criminals among us. But
there are two complementary ways of going about this: we can take preventive
measures, like the rehabilitation of those who commit crimes, to reduce the
incidence of crime before it happens, and we can punish those who do commit
crimes, giving the police and courts strong powers of enforcement and
incarceration.

America had a history of using preventive programs prior to the 1970's -- not
only those that stressed the rehabilitation of convicts, but also others
aimed at children and young people, like the home visiting program Healthy
Start, which was intended to reduce child abuse (perhaps the greatest social
cause of criminality), close supervision of juvenile offenders and guidance
programs for youths at risk of falling to crime.

But over the last three decades, rather than seeking a balance, the American
approach has become almost entirely punitive: we have the second-highest rate
of incarceration in the world (after Russia), and are the only prominent
Western democracy with the death penalty. Nonetheless, we still have one of
the highest rates of criminal activity and violence in the world, even after
taking into account the dramatic recent declines in overall crime rates.

Nearly all criminologists consider our punitive approach a disaster. There is
no evidence that it has had any long-term impact on reducing crime, and it is
certain that excessive incarceration makes career criminals of many of the
nonviolent offenders whom we throw together with hardened, violent ones.

Why have we taken this contradictory punitive course? Why do nearly all of
our leaders, including the ostensibly moderate Democratic front runner in the
presidential race, Al Gore, trumpet their "toughness" on crime and defense of
the death penalty?

The easy argument is that Americans are simply prone to violence as a people.
However, there might be a better, and far less ignoble, reason: our extreme
commitment to antipaternalism, to the principle that the state should avoid
telling citizens how to lead their lives. In the words of the Supreme Court
Justice Robert H. Jackson, "It is not the function of government to keep the
citizen from falling into error; it is the function of the citizen to keep
the government from falling into error."

Crime prevention measures that are proved to work well -- from programs aimed
at youths at risk to therapy and rehabilitation for offenders both in prison
and after release -- are all in some way paternalistic. It is not just
conservatives and tax cutters who resent such programs. They often cause
animosity in the very people they are supposed to help. Very often these are
poor people and members of racial minorities whose sense of freedom and
dignity leads them to reject such programs. (In a similar way, studies of the
remaking of welfare in recent years found a widespread and deeply felt
dislike of the social services system and its agents on the part of welfare
recipients themselves.)

Our rejection of a preventive approach, however, creates a paradox in that we
are forced to surrender more and more of our liberty to the increasingly
powerful police operations, like the street crimes unit in New York, and the
draconian laws we pass in order to guarantee safety. Unlimited power always
corrupts, and when a police officer can defend himself against the killing of
an unarmed civilian with the nearly unassailable argument that he feared for
his own life, we are edging closer to unlimited power.

In pursuing the principle of noninterference, we are eroding the principle of
doing anything we please without being blasted away by jittery agents of the
state. New York is not alone. The police corruption scandal in Los Angeles,
the erroneous death penalty verdicts in Illinois, the F.B.I. scandal in
Boston and the execution spree in Texas are all of a piece with this national
contradiction.

As for the principle of equality under the law, nobody can deny that the
probability of having our liberty violated by the police is directly related
to wealth and status. Not only are wealthy Americans treated with greater
respect by the police, but they are also less likely to be arrested and
indicted than poor Americans for similar acts, are less likely to be found
guilty if they are indicted, are less likely to be incarcerated if they are
convicted and are likely to serve less time if incarcerated. What for a
suburban white youth is a misdemeanor powder cocaine offense punishable by
probation becomes for a Hispanic or African-American crack user a 15-year
prison sentence.

Domestically, the penalty we now pay for our unequal and punitive system of
justice is the self-contradiction of our most basic liberties. As Thoreau put
it: "Whatever the human law may be, neither an individual nor a nation can
commit the least act of injustice against the obscurest individual without
having to pay the penalty for it." One result of the unequal impact of our
law-and-order stance is a deep distrust for authorities on the part of poorer
citizens of all ethnic groups -- from white chauvinists who decry the Waco
disaster to African-Americans outraged over the Diallo shooting and the
beatings of Rodney King and Abner Louima.

And there may be an international price to pay as well. Coincidentally, just
hours before the Diallo verdict, the State Department released its annual
report on human rights violations, in which we condemned such countries as
China and Pakistan for violating basic freedoms. For all of our failures and
contradictions, we can still justly claim to be the land most passionately
committed to the cause of liberty.

But the Diallo trial and similar instances of growing police powers, along
with our irrational penal system and the unequal application of our
increasingly harsh laws, compromise our international status and undermine
the credibility of the nation best qualified to lead the world into a century
of global freedom.

Orlando Patterson is a professor of sociology at Harvard and the author of
"Rituals of Blood: Consequences of Slavery in Two American Centuries," the
second volume of a trilogy on race relations.