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.