IS JUSTICE RONNIE WHITE REALLY "PRO-CRIMINAL?": Evaluating Ashcroft's Accusation

By SHERRY F. COLB

Wednesday, Jan. 31, 2001

During the confirmation hearings for the post of Attorney General, we heard testimony that as a senator, John Ashcroft derailed a judicial nominee's confirmation by calling the nominee "pro-criminal" and anti-death penalty. This nominee was Justice Ronnie White, the first African-American to serve on the Missouri Supreme Court.

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President Clinton nominated Justice White a few years ago for a federal district judgeship. Senator Ashcroft's opposition to White was unusual in part because controversies over appointments of trial judges are virtually unheard of. Indeed, this was the first time in almost fifty years that the full Senate voted against a district court nominee, and Senator Ashcroft's lobbying was critical to that vote. Senator Ashcroft's successful opposition leads to an important question: what does it mean to accuse a person of being "pro-criminal"?

The Meaning of "Pro-Criminal"

It is hard to imagine that many law-abiding citizens, let alone many citizens who have become judges, are "pro-criminal" in the sense that they actually root for criminals to succeed in their crimes or, once their crimes are completed, to succeed in evading punishment.

One might, however, believe that some currently "criminal" activities ought to be legalized. Many believe, for example, that Prohibition was a dismal failure at curbing the use and sale of alcohol but a great success at fortifying organized crime and thereby increasing the amount of extortion and violence in American society. For those who feel this way, it might seem that the "war on drugs" has had, and will continue to have, the same disastrous consequences as the war on alcohol did early in the twentieth century.

Those who share this view might be called "pro-criminal," in the sense that they favor legalization of acts that are currently crimes, or favor lax enforcement of certain laws so that some "criminals" will not be caught. Still, using the appellation would be misleading; those who favor legalization are not so much pro-criminal as against the anti-criminal laws they find to be ineffective, counterproductive or morally wrong.

Liberals on criminal matters demand that criminal defendants be protected from prosecutorial zeal, treated with decency, and given a fair opportunity to fight the charges leveled against them. Does that mean they are "pro-criminal?"

No. The government is not infallible, after all, and on occasion, innocent people are charged with crimes they did not commit. To insist on a process that allows us to distinguish between guilty and innocent defendants does not make a person "pro-criminal." Indeed, the main purpose of a criminal trial is to determine whether the person charged did in fact commit the crime and is therefore a "criminal."

Unavoidably, of course, the protections that help ensure the acquittal of the innocent sometimes shield the guilty as well. This is only further testimony to human fallibility, however, in the process of discerning the guilty from the innocent. We know this process is not an exact science, which means both that some of the innocent will be convicted and that some of the guilty will go free. Since error is inevitable, we err on the side of acquittal.

But urging protections that have the desirable result of protecting innocents, and the undesirable result that more of the guilty go free, does not make one "pro-criminal"; it only means that one is more "pro-innocent" than "anti-guilty." Similarly, someone who is anti-death penalty because of human fallibility is, for the same reasons, not pro-criminal — rather, he or she is someone who is "pro-innocent" enough to accept the result that some appalling criminals will live on, so that we can be sure innocents do not die.

Is Justice Ronnie White "Pro-Criminal"?

What is astonishing about Ashcroft's calling White pro-criminal is that White has not embraced any of the views described above. He does not, so far as we know, support decriminalization of drugs. He has not pressed for expanded protections for criminal defendants.

And he does not oppose the death penalty.

The reality that White is not "pro-criminal" in any of these senses may be why a Missouri police organization endorsed him for the federal judgeship for which he was nominated. What may have earned Justice White the ire of Senator Ashcroft is merely that he decided each criminal case that came before him with an independence that occasionally made him a dissenter.

In one such case, which received a lot of attention, White voted for the retrial of a capital matter in which the sentencing judge had made blatantly racist remarks shortly before the trial. Specifically, the sentencing judge criticized the "Democrat Party" for placing "far too much emphasis on representing minorities such as homosexuals, people who don't want to work and people with a skin that's any color but white . . . I believe the time has come for us to place much more emphasis and concern on the hard-working taxpayers of this country."

An African-American defendant to go on trial for capital murder six days after this statement was released asked that in light of these remarks, the trial judge recuse himself. The judge denied his request, and he was subsequently convicted and sentenced to death.

Justice White did not suggest that this defendant go free, but simply that his case be tried "before a judge whose impartiality is beyond reproach." What is surprising is not that Justice White felt this way, but that not one of Justice White's colleagues on the Missouri Supreme Court shared his concern. It is hard to be confident that the same judge who complained about an undue focus on "people with a skin that's any color but white" can also provide an African-American defendant with a forum for a fair trial and sentencing. Yet Justice White dissented alone.

What did it mean, then, for Senator Ashcroft to call White "pro-criminal"? It seems to have meant only that based on rulings like these, Ashcroft feared that White recognized a few seemingly inescapable realities — that African-Americans are disproportionately represented among those who are arrested, those who are tried as criminal defendants, and those who are convicted and even sentenced to die; and that some of this disproportion results from racism in the justice system and in those who administer it.

This disproportion reflects a racial double standard that still permeates our society almost 140 years after the Civil War. Justice White noticed the double standard for the defendant tried, and sentenced to death, before a judge who publicly declared his prejudice against non-whites. Justice White tried to address the double standard by remanding the case for re-trial before a judge whose courtroom was free of such prejudice.

And Justice White had the displeasure of bearing witness to the double standard again when Senator John Ashcroft deliberately and effectively barred his entrance into the federal judiciary by calling him "pro-criminal," without any plausible foundation for his accusation.

What, then, did Ashcroft's use of the phrase "pro-criminal" really mean? With that phrase, Ashcroft may simply have expressed a belief on the part of some whites, including himself, that Senators ought to scrutinize an African-American judicial nominee to ascertain whether he will notice and object to the racial double standard — and only confirm him if he chooses to ignore it. But as Justice Ronnie White noted in his death penalty dissent, "[p]roblems do not disappear just because we close our eyes to them."


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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