KINDER'S COMMENTARY: RACE LABELS IN NEW JUVENILE LAW

Some day an article will need to be written on the 10 or 20 most under-reported stories of 1995. Where Missouri state government is concerned, surely one that would qualify is tucked away in the juvenile crime bill of which Mel Carnahan is so proud.

The juvenile crime bill passed by the General Assembly and signed into law by Gov. Mel Carnahan contains many laudable measures. You can expect to see them featured prominently in Carnahan re-election campaign ads in the coming year. What you won't see is the dirty little secret of the bill: Your state government is back in the business -- in the criminal law! -- of re-classifying Americans according to their membership in this or that racial category.

A little-noticed provision demanded by a small group of House members instructs Missouri judges that they must take into account the racial composition of the pool of alleged offenders in making decisions on whether to certify a juvenile defendant to stand trial as an adult. We senators succeeded in getting the provision stricken from the bill, following a floor debate in which even some of the chamber's most liberal members agreed with us more vocal critics on the need to remove it. House conferees demanded its re-insertion in the final version, the Senate conferees caved altogether, and a majority of lawmakers held their nose and whooped it through on final passage, hoping that the provision would escape notice. Gov. Carnahan then proudly signed the bill amid a clamor of uninformed praise that ignored a provision so noxious that it merited a "no" vote on final passage.

Have we certified too many minorities this week, or this month, or this year? How many is too many? Which slice of time is the one to look at? Do you take a percentage that reflects the percentage of minorities in a given community, and say, quite arbitrarily, that there can't be any more? Who is to say?

These and other questions, the careful reader will notice, are essentially unanswerable. Thus they are the very antithesis of the "bright line" certainty that is the hallmark of good law. These questions are a few among many that are haunting judges who have begun to think about the implications of reintroducing racial categories into a justice system that should aspire to color-blindness.

Typical among reactions from jurists who have been told of the provision was that of one appellate judge, an urban Democrat of impeccable reputation whose public service included several terms in the General Assembly. Told last spring, at the time of passage, of what judges would now be required to consider in certifying juveniles, he blurted out an unprintable, "Oh sh--!"

This, at a time when all America from the Supreme Court on down is moving away from racial classifications and quotas, is the road down which Mel Carnahan and his Democratic majority in the General Assembly are now taking us. Inasmuch as Mel Carnahan's biggest contributors are the personal-injury lawyers of the trial bar -- the folks who have an interest in suing us all more -- one might understand another implication: More appeals, more litigation, more business for an already overloaded legal system. This will be true for a very simple reason. From now on it will almost certainly be legal malpractice for an attorney not to raise and litigate the issue of the racial composition of the pool of juvenile offenders at certification hearings. No matter the judge's ruling, then, this issue will go up on appeal. The above-quoted judge's reaction becomes easily understood.

In the background on such issues, writes John Leo in U.S. News and World Report, there "lurks one of those horrendous wedge issues that could drastically alter the criminal justice system along tribal lines." Mel Carnahan and his legislative majority have gravely wounded the American ideal of color-blind justice. For this they must answer and be held accountable by all Missourians of good will who know what profound issues are at stake.

~Peter Kinder is the associate publisher of the Southeast Missourian and a state senator from Cape Girardeau.