Academic journal article Harvard Law Review

Unequal Justice

Academic journal article Harvard Law Review

Unequal Justice

Article excerpt

 
TABLE OF CONTENTS 
 
INTRODUCTION                               1970 
I. EQUALITYAND LOCAL POLITICS              1975 
  A. Law's Limits, Bureaucracy's Bias      1975 
  B. Criminal Justice in the Gilded Age    1982 
     1. The South                          1983 
     2. Northern Cities                    1986 
II. THE RISE OF INEQUALITY                 1997 
  A. Local Democracy's Decline             1997 
  B. Lenity and Severity                   2010 
  C. Violence and Drugs                    2019 
  D. Federa                                2025 
III. EQUALIZING CRIMINAL JUSTICE           2031 
  A. Police Funding                        2032 
  B. Jury Tri                              2034 
  C. Vague Substantive Law                 2036 
IV. CONCLUSION                             2040 

INTRODUCTION

American criminal justice is rife with inequality. African Americans constitute 13% of the general population, (1) but nearly half of a record-high prison population. (2) The imprisonment rate for Latino males is almost triple the rate for white males; black men are locked up at nearly seven times the rate of their white counterparts. (3) The differentials in drug punishment are even larger: of every 100,000 black Americans, 359 are imprisoned on drug charges; the analogous figure for whites is 28. (4) Drug offenders are far more equally distributed: 9.7% of America's black population uses illegal drugs; the analogous figure for whites is 8.1%. (5)

Those data suggest a justice system hard-wired for punitive racism. The truth is more complex. A mere thirty-five years ago, imprisonment rates across the Northeast and Midwest were comparable to or below those in Scandinavian countries today; (6) the number of African American prisoners was one-eighth today's figure. (7) Even now, the police "clear" more violent crimes in small cities than in large ones, more in suburbs than in small cities, and more in small towns and rural areas than in suburbs. (8) In other words, the justice system solves (and hence punishes) violent crimes most often in places with the fewest poor people and black people. (9) One-third of violent felony defendants in the seventy-five most populous counties--nearly half of whom are black and the large majority of whom are poor (10)--have the charges against them dismissed. (11) A mere 8% of federal fraud defendants, a group that is much wealthier and whiter, (12) achieve the same result. (13) In all categories of criminal cases, indigent defendants are more likely to win dismissals than defendants who hire their own lawyers. (14) These are not the hallmarks of an adjudicative system bent on locking up young men in poor black neighborhoods.

What accounts for this strange set of patterns? Official racism (15) is an unlikely explanation for a massive rise in black punishment that took hold in the generation after the civil rights movement. The rise of populist politics (16) appears not to fit the relevant trends: populism and the politics of crime were as potent a mix in George Wallace's day as in our own--but the prison populations in Wallace's Alabama and in Ronald Reagan's California were low and falling, not high and rising. (17) "The culture of control" and "governing through crime," David Garland's and Jonathan Simon's apt labels for the growing use of criminal punishment to manage the nation's poor, (18) capture the character of contemporary drug enforcement--but not the enforcement of laws against criminal violence or white-collar crime: (19) in those areas, rich suspects do badly and poor ones do surprisingly well.

Another explanation does better: inequality of all these varying sorts arose, in large measure, because of the decline of local democratic control over criminal justice outcomes. In the late nineteenth and early twentieth centuries, when local politics governed the amount and distribution of criminal punishment, the justice system was stable, reasonably lenient, and surprisingly egalitarian. …

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