Crime, Conflict and the Racialization of Criminal Law

author: Jeffrey Fagan, Columbia University
published: Oct. 30, 2009,   recorded: September 2009,   views: 5686

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The scars from riots in 47 American cities in the late 1960s remain visible today not only in the physical landscape of a few stubbornly poor cities, but in a philosophy and jurisprudence of criminal law that has instantiated the disparate fates of racial minorities in the criminal justice system. The riots took place in the midst of profound social and economic restructuring of the nation’s cities, and at the outset of an epidemic of rising rates of crime and disorder that framed both a new political order and a profound transformation of American criminal law and criminal procedure. Within the decade, a political and legal mobilization – fueled by racial and cultural conflict – led to an abrupt reversal in the substance and philosophy of criminal law. The ceding of rights to criminal defendants and the increasing regulation of police in the early 1960s gave way through a series of cascading court decisions and new laws to a punitive regime that, over three decades, has expanded the authority of police, curtailed the procedural rights of criminal defendants, and supported policies that have sustained a widening racial gap in incarceration. A new body of criminal laws, though facially race-neutral, have had profound racial consequences that are durable and sustainable even in a low crime era. Part I of this paper discusses the antecedents, contexts and dynamics of this turn in criminal law, focusing on the racial dynamics that exploded in a wave of riots. Part II examines the development of the new legal order, analyzing the reversal in law through a series of court decisions over two decades. Part III examines how the use of race-neutral laws to achieve crime control in the absence of complementary models of social regulation has produced disparate racial impacts that have become endogenous to the political order. Part IV discusses the challenges to legal and institutional reform to restore racial equality in criminal justice. The American experience is a cautionary tale of the limits and dangers of criminal law to manage diversity and social conflict.

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