What if Henry Louis Gates Were Not an Acclaimed Professor?

SAN JOSE, Calif. -- Professor Henry Louis Gates, recently arrested, gets to share a beer with the man who arrested him, Sgt. James Crowley, at the White House with the President of the United States. It is a highly uncommon ending to an unfortunately very common occurrence – a man of color citing racial profiling after an arrest.

If this incident is really to be the “teachable moment” President Obama hopes for, the real question to explore is this: What would have happened to Dr. Gates if he were not an acclaimed scholar and author, friend to the President, and someone whose stardom could greatly embarrass a city and county justice system?

First things first, charges for his disorderly conduct would not be dropped shortly after his arrest, and Dr. Gates, a few weeks after the incident, would just be starting his journey in the criminal justice system, rather then reflecting on it in hindsight, while throwing back a beer with the leader of the free world. Let’s start from there.

Since every city in the country is different in arresting practice, the way to approach this is not to examine Cambridge, but to ask what would happen if the arrest happened in your own town. Let me roll out what would have happened if Dr. Gates, were he not a noted scholar, was arrested in my city, San Jose, California with the same fact pattern, even as described by the police report.

Starting from arrest, Dr. Gates would have been charged with more then disturbing the peace, (penal code 415 in California). From the narrative of what happened at his home, Mr. Gates would have also picked up a 148 resisting arrest, a misdemeanor.

California Department of Justice numbers show San Jose has much higher arrest rates for these charges than cities of comparable size, in a racially disproportionate fashion. For resisting arrest in 2007, for example, 54.2 percent were Latino, although Latinos only represent roughly 30 percent of the city’s population. Blacks, who represent only 3.5 percent of San Jose residents, accounted for 15.4 percent of these arrests. Communities of color in San Jose claim the discrepancy is due to a practice some call “attitude arresting,” where police are using these particular charges that rely heavily on officer discretion to arrest someone when they don’t like their attitude, rather than for an actual criminal act.

As for the comment, “You don’t know who you are messing with,” Dr. Gates would have also likely picked up a penal code 69 (felony in this case), for making a criminal threat to a police officer. Dr. Gates would not know of all these charges until he was arraigned at court. It is here that police abuse can take a more subtle, yet problematic direction – the well known practice of over-charging. Sometimes, it is not the gun or taser, which is the weapon of concern: it is the pen used for a police report.

In all likelihood, someone less well known and well connected than Mr. Gates would be represented by the Public Defender’s office, which represents over 90 percent of all defendants in California. His attorney, over-worked, with an over-whelming caseload, would read the police report and speak with Dr. Gates, likely onthe day of his first court appearance. He or she would tell Dr. Gates of his maximum exposure – what he would receive if convicted on all charges – which may be a year, given the felony. The attorney would tell Dr. Gates “it doesn’t look good” since it is his word versus the police officer, and juries trust police officers. The Public Defender and the District Attorney would be anxious to resolve the case, since they are seeing their average case loads steadily increasing, as their offices budgets are shrinking. Across the country, plea bargains resolve roughly 95 percent of all felony cases.

The Public Defender would tell Dr. Gates that he or she met with the District Attorney’s office, and that the prosecutor is offering a deal if he pleads guilty just to the two misdemeanor charges. He would do only ten days in county jail, and have a three-year probation, but the heavier charge would be dismissed.

Dr. Gates would feel conflicted. Every fiber in him would say that he is innocent of any crime, but he would also feel he could not risk loosing a jury trial and going to jail for an extended period of time. He would know he would be facing a mainly white jury, who he fears would carry their own bias into the courtroom when they hear of an erratic acting black man.

Demoralized and worn down from the process, Dr. Gates would plead guilty to the 415 and 148 charge, and do a week in jail, after time served is subtracted.

After his release, and back into the normal motions of his life, he would feel haunted by the injustice. He will be stigmatized by every interaction he has with a law enforcement officer when they run his name, even in innocuous driving stops. Motivated to right a wrong, he might approach a civil rights attorney to file a claim against the police department for false arrest and racial profiling. Although sympathetic and believing, the attorney would tell Dr. Gates that he has no case because he took a plea deal.

As a last resort, if only to prevent such an episode from happening to another person down the road, Dr. Gates could file a claim against the arresting officer with the police department’s internal affairs unit. He would meet with an internal affairs investigator, who would listen to Dr. Gates’ story of the officer abusing his authority, and tell him he will report back on his findings. Months later, Dr. Gates would receive a form letter from the Internal Affairs office informing him that they reviewed his case and found no wrong doing by the involved officers.

Throughout the course of his process, which started with a jammed door to his own home, Dr. Gates would have interacted with all these many aspects of the criminal justice system, and would have felt betrayed by all of them. The less well-known Dr. Gates would not be making a documentary after all this, would not be sipping cold beers with the president of the United States and the man who arrested him. No, he would simply be trying to restore normalcy back to his permanently altered life.