Date Written: March 18, 2022
Abstract
United States criminal justice policies have played a central role in the subjugation of persons of color. Under slavery, criminal law explicitly provided a means to ensure White dominion over Blacks and require Black submission to White authority. During Reconstruction, anticrime policies served to maintain white supremacy and re-enslave Blacks, both through explicit discrimination and facially neutral policies. Similar practices maintained racial hierarchy with respect to White, Latinx, and Asian-American populations in the western United States. While most state action no longer explicitly discriminates on the basis of race, anticrime policy remains a powerful instrument of racial subordination. Indeed, social scientists who study race find that contemporary racism is one of the strongest predictors of punitive sentiment. Specifically, persons who have strong implicit racial bias, racial resentment, or social dominance orientation are more likely to endorse harsh punishments.
This research suggests that racism is inextricably linked with punishment. This connection could explain, in part, the continuation of deep racial inequality in criminal justice policies, despite the attainment of formal legal equality. The Supreme Court’s equal protection doctrine that focuses narrowly on intentional discrimination is ill-equipped to combat racism associated with criminal justice practices. A more robust and effective doctrine would recognize the relevance of historical racism to contemporary anticrime policies; incorporate insightful conceptions of racism elaborated by social scientists; and recognize the racist dimensions of punitive sentiment. Given the current conservative composition of the Supreme Court, advocates of racial justice could pursue federal and state legislative and executive remedies and state judicial remedies to combat systemic racism associated with criminal law and enforcement.
Keywords: criminal justice, racism, critical race theory, equal protection, constitutional law, racial resentment, social dominance, implicit bias, punitive sentiment
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