Abstract
Race is central to the construction and application of American criminal law and, in turn, criminal law significant to the American racial experience. Yet, there remains controversy about the very nature of the question of “race in criminal law.” This chapter takes up different possible views of race and racism in criminal law, scanning questions surrounding hate crimes and racist intent, before focusing on structural racism in legislation, policing, prosecution, sentencing, mass incarceration and collateral sanctioning as the most pressing facets of race in criminal law. The endemic nature of this racism often prompts legal theorists to speculate about the obligations of oppressed racial minorities to obey the law. Ironically, less explored is the more pressing dilemma, how can privileged citizens find a way to live ethically under a system of criminal law that imposes racial injustice in their name.
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Notes
- 1.
That is not to say that the distinction between “individual racism” and “structural racism” is at all new (Carmichael and Hamilton 1967, p. 4).
- 2.
U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Criminal Offender Statistics. Available at: https://www.bjs.gov/content/pub/pdf/p13.pdf (3/5/19).
- 3.
Sabol et al. (2010): U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, December 2009, NCJ 228417, https://www.bjs.gov/content/pub/pdf/p08.pdf, p. 2.
- 4.
Anti-Drug Abuse Act of 1986, Pub. L. No. 99–570, 100 Stat. 3207 (codified as amended at 21 U.S.C.§§ 841–904 (2012)). As one might imagine, whether Congress was motivated by or blind to the racial impact of this disparity is now generally denied by those in Congress at the time. 156 Cong. Rec. H6202 (daily ed. July 28, 2010) (statement of Rep. Daniel E. Lungren) (noting that Congress enacted the 100-to-1 ratio “thinking we were doing the right thing at the time”); 155 Cong. Rec. S10491 (daily ed. Oct. 15, 2009) (statement of Sen. Richard Durbin) (“Those of us who supported the law establishing this disparity had good intentions”); ibid., S10493 (statement of Sen. Specter) (“I do not believe that the 1986 Act was intended to have a disparate impact on minorities but the reality is that it does”).
- 5.
Kolata and Cohen (2016).
- 6.
Yankah (2016).
- 7.
Report of Jeffrey Fagan, Ph.D. at 22 tbl.3, Floyd v. City of New York, No. 08-01034 (S.D.N.Y. Jan. 31, 2008). In New York City, home of the nation’s largest police force, near 4.5 million stop and friskswere recorded between 2004 and 2012. New York’s population is roughly 23% Black, 29% Hispanic and 33% White. Nonetheless, in 52% of all searches, the persons searched were Black. In another 31% of the searches, the persons were Hispanic. Blacks and Hispanics were not only vastly disproportionately the target of searches but they also disproportionately experienced police violence. Though over half of these searches were justified as weapons searches, a weapon was found in only 1.5% of these searches. In bitter irony, weapons and contraband were slightly more likely to be found on White persons searched than on either Black or Hispanic persons searched. Just as in Terry, the overwhelming stated justifications for initiating the stops are vague descriptors that are easily influenced by racial stereotypes or prejudice such as “furtive movements” and “high crime areas.” Examining the record in Floyd v. City of New York highlights the obvious: a regime that allows and shields such wildly disparate practices from legal check and all but declares that persons of color live under a different policing regime without recourse.
- 8.
Kutateladze et al. (2014, p. 3).
- 9.
Ibid.
- 10.
Gross et al. (2017).
- 11.
Kerby (2012).
- 12.
- 13.
McCleskey v. Kemp, 481 U.S. 279 (1987). Specifically, the famous Baldus study, featured in that case, found that a defendant who killed a White victim was vastly more likely to receive the death penalty than one who killed a Black victim. Additionally, the study found that Black defendants were slightly more likely to receive the death penalty than similarly situated White defendants. The study concluded that a Black defendant who killed a White victim was most likely to receive the death penalty.
- 14.
Michelle Alexander comprehensively and eloquently illuminated this problem while giving it a powerful name in her book-length treatment (Alexander 2010).
- 15.
Sabol et al. (2010, p. 2).
- 16.
Brown v. Plata.
- 17.
How confident one has to be in their assessment of the legitimacy of a system is an important issue I leave largely unaddressed. For now, it is enough to note that a thoughtful citizen will not causally decide that his idiosyncratic assessment will be sufficient and begin treating the system as illegitimate. A thoughtful citizen will consult a range of experts across the ideological spectrum and engage in meaningful deliberation with fellow citizens before reaching a conclusion. This does not guarantee that he will not reach deeply mistaken conclusions. The dangers of self-selected sources or simply flawed reasoning are unavoidable.
- 18.
Indeed, to the extent some philosophical cosmopolitans assert that one has equal duties to victims of injustice in other polities, they often ground these duties in the argument that international economic relationships are unjustly created for the enrichment of citizens of rich nations. Beitz (2010).
- 19.
Judge (2017).
- 20.
Bridges and Johnson (2017).
- 21.
As I very roughly understand it, while it is unlawful to file a return without identifying the person, one will be liable for a much more minor offense associated with a failure to file a complete claim rather than a failure to pay. 26 U.S.C. § 6651(a)(1) (2012) (failure to file return); ibid., at § 6651(a)(2) (failure to pay). I am very grateful to tax law colleagues who walked me patiently through this thinking, Mitch Attas, Mitchell Engler and, most especially, Edward Zelinsky. Highly public claims of avoiding taxes on undocumented workers are too numerous to catalogue but a particularly salient pair of examples can be seen in the President Bill Clinton’s twin nominations of Zoë Baird for United States Attorney General and, the following month, Kimba Wood as a federal judge. It became known that both of them had employed undocumented immigrants as childcare workers. Importantly, Baird had avoided paying any associated taxes for her employees. Wood, who had hired her employee when it was legal, had paid the associated social security tax. Following so shortly after Baird’s bruising nomination, Wood’s nomination was also withdrawn. For our purposes, it is important to note that Wood was in a better position to show that her employment was not exploitative or for her unfair benefit.
- 22.
Among the most prominent of these is the National Lawyers Guild and its various workshops on street lawyering.
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Yankah, E.N. (2019). Race, Criminal Law and Ethical Life. In: Alexander, L., Kessler Ferzan, K. (eds) The Palgrave Handbook of Applied Ethics and the Criminal Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-22811-8_26
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