Race-Based Remedies in Criminal Law (original) (raw)
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Foreword: Addressing the Real World of Racial Injustice in the Criminal Justice System
The Journal of Criminal Law and Criminology (1973-), 2003
Reading Supreme Court decisions in criminal cases often feels like falling down the rabbit hole: 1 a bizarre adventure where nothing is what the Court says it is and circular reasoning passes for analysis. In the Court's Fourth Amendment jurisprudence, "there is a tendency ... to pretend that the world we all know is not the world in which law enforcement operates." '2 This is a "raceless world... a constructed reality in which most police officers do not act on the basis of considerations of race, the facts underlying a search or seizure can be evaluated without examining the influence of race, and the applicable constitutional mandate is wholly unconcerned with race." 3 It is a world in which abuse of power by law * Professor of Law, University of Miami School of Law. Colleagues and friends Marc Fajer and Martha Mahoney provided useful comments and insights for which I am very grateful. Charles Lanzdorf, Ana Prentice, David Gottlieb, and Natalie Barefoot provided able research assistance. Sonia Ramos, Sue Anne Campbell, and Barbara Cuadras provided administrative and librarian assistance. I am grateful for their support.
And Justice for Some: Race, Crime, and Punishment in the US Criminal Justice System
Canadian Journal of Political Science, 2010
How has the criminal justice system~CJS! responded to racial diversity in the United States? Criminologists and sociologists have led the way in studying the reality of how Blacks are treated relative to Whites by law enforcement and the courts. There is now an extensive literature documenting the far greater likelihood of Blacks being arrested, sentenced and incarcerated compared to Whites, and a fairly contentious literature attempting to sort out the degree to which these racial disparities in outcomes are traceable to racial discrimination in the justice system. Far less attention, however, has been paid to studying perceptions of the fairness of the justice system in the eyes of Blacks and Whites, as well as the political consequences of these perceptions. We maintain that the huge race gap in these fairness perceptions, which is the focus of this paper, is critically important for a variety of reasons. As we will argue below, most Whites fail to see discrimination in the justice system and consequently believe the system is, for the most part, colour-blind and fair. Because they attribute racial disparities in justice outcomes to the greater criminality of Blacks, they are highly supportive of a slew of punitive policies as the best way to deal with crime. Most African Americans, on the other hand, see discrimination in virtu
10 LECTURES ON RACE AND CRIMINAL JUSTICE IN THE UNITED STATES 2017 Lecture 1 INTRODUCTION
This course offers a critical examination of race, ethnicity, and the administration of justice in the United States. This introduction is the first in a series of 10 lectures assigned as required reading. These essays supplement required articles, books, and audio-video material. They provide background, and they situate the readings in theoretical and historical contexts that are not found in the readings themselves. The lectures assigned in the first part of the course (lectures 2-6) critique the title of the course by examining the ordinary meanings of each word, and its use and meanings in the academic disciplines of criminology sociology, anthropology, among others. For example, lecture 2 examines meanings of the word 'race,' lecture 3 examines 'ethnicity, lecture 4 'administration,' lecture 5 'justice,' and lecture 6 the relationships among them—the 'and' and 'of.' While this approach may at first seem simplistic, the critiques of these words reveal a host of hidden assumptions, biases, and tendentious uses according to various political and economic interests. Race, for instance, means different things to different people at different times and according to their respective positions in society. In the last part of the semester the remaining lectures discuss the relationships among race, class, and gender; the politics of race; a critique of criminal justice studies and its treatment of racial issues; and finally the role of criminal justice apparatuses (police, courts, and prisons) in maintaining the social order that stratifies people according to race. As with the five lectures in the first part of the semester, the last lectures place each topic in historical context, and they use theoretical frameworks to explain the history and current conditions. The Argument of the Course Most analyses of the relationships among race, ethnicity, and the administration of justice use a cause and effect, linear logic. For instance, some would say that an abiding racism among the dominant White ruling class results in a maladministration of justice in which Black Americans are targeted for punitive measures by the criminal justice apparatus—i.e., cops, courts, and corrections. My argument, in contrast, is that racial categories are inseparable from the criminal justice apparatuses. They define and condition each other. Racial categories are what they are—Black, White, Latinx, Native, and so on—because of the history of justice administration, and conversely racial categories define and condition the criminal justice apparatuses. Cops are organized in certain ways and act in certain ways because of the way race is defined in the United States, and racial categories are shaped by police actions. Mine is a dialectical argument, not dependent on cause and effect linearity. Dialectical thinking comes across as abstruse so I use a short history to illustrate.
Deliberating Racial Justice: Towards Racially Democratic Crime Control
This chapter advocates deliberative racial justice in crime control processes. We contrast this normative ideal with narrower empirical, policy, and public discourses on “diversity” in legal professions, which rarely broach complex relational notions of racial and ethnic group representation, and often deny these interests. The chapter begins with an examination of the principles of recognition, representation, and participatory parity that inform a normative process and outcome of deliberative racial justice we describe as racially democratic crime control. We stress the role of political culture in regulating the discussion and functioning of inclusion in crime control, including how “color-blind” racial ideology contributes to the dissonant pursuit of diversity without representation, undermining the realization of “deeply democratic” criminal social control. We close with discussion of objections, and theoretical and practical challenges related to the future prospects of racially democratic crime control, particularly in the United States.
Journal of Health Care for The Poor and Underserved, 2005
Minority (over) representation in the criminal justice system remains a puzzle, both from a policy and an intervention perspective. Cross-sectional reviews of the policies and practices of the criminal justice system often find differential rates of involvement in the criminal justice system that are associated with the nature of the criminal charge/act or characteristics of the offender; however, longitudinal reviews of the race effect often show it to be confounded by procedural and extralegal variables. This review focuses on how the cumulative policies and practices of the criminal justice system contribute to churning, or the recycling of individuals through the system. In conducting our review, we describe how the same criminal justice processes and practices adversely affect select communities. The consequences of policies and procedures that contribute to churning may affect the legitimacy of the criminal justice system as a deterrent to criminal behavior. A research agenda on issues related to legitimacy of the criminal justice system aimed at a better understanding of how this affects individual and community behavior is presented.
A call to dismantle systemic racism in criminal legal systems
Law and Human Behavior, 2022
Objectives: In October 2021, APA passed a resolution addressing ways psychologists could work to dismantle systemic racism in criminal legal systems. The present report, developed to inform APA's policy resolution, details the scope of the problem and offers recommendations for policy and psychologists to address the issue by advancing related science and practice. Specifically, it acknowledges the roots of modern-day racial and ethnic disparities in rates of criminalization and punishment for people of color as compared to White people. Next, the report reviews existing theory and research that helps explain the underlying psychological mechanisms driving racial and ethnic disparities in criminal legal systems (e.g., endorsement of negative stereotypes, explicit and implicit bias). It also elucidates how racially disparate treatment generates downstream negative mental health consequences for people of color. Conclusions: Evidence-based recommendations to work toward eliminating systemic racism in the criminal legal systems include (a) rigorous measurement and analysis of disparities; (b) targeted changes in policy, practice, and law; (c) increased access to culturally aware and competent services and interventions; (d) the proliferation of education and training programs regarding racial bias; (e) increased attention to issues of intersectionality; and (f) promotion of diversity and fair-mindedness among criminal legal actors.
Racial disparity in the criminal Justice System A Manual for Practitioners and Policymakers
We cannot run society for the privileged and allow a significant proportion of the population to be marginalized. It impacts the quality of life for all of us if we have 'throw away' people. A justice system which tolerates injustice is doomed to collapse. -Leonard Noisette, Former Director, Neighborhood Defender Service of Harlem, NY We, as a country, are confused about what we are trying to achieve with the criminal justice system. The public needs to be moved away from the idea that the criminal justice system can provide 'the' answer to crime. Indeed, our responses to crime often exacerbate the problem. Criminal justice agencies in a local jurisdiction must collaborate to get the proper message to the public and collectively say, 'this is what we can do, this is what we cannot do' and then concentrate on improving the system-particularly in the area of reducing racial disparities which result from our collective decision-making. -I. Matthew Campbell, Former Assistant State's Attorney, Ellicott City, MD While the impact of incarceration on individuals can be quantified to a certain extent, the wide-ranging effects of the race to incarcerate on African American communities in particular is a phenomenon that is only beginning to be investigated. What does it mean to a community, for example, to know that three out of ten boys growing up will spend time in prison? What does it do to the fabric of the family and community to have such a substantial proportion of its young men enmeshed in the criminal justice system? What images and values are communicated to young people who see the prisoner as the most prominent pervasive role model in the community? -Marc Mauer, Race to Incarcerate 1