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.