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Excerpted From: Paul Butler, Foreword to the Republication of Affirmative Action and the Criminal Law, 92 University of Colorado Law Review 1443 (2021) (195 Footnotes) (Full Document)


PaulButlerTwenty-four years later, je ne regrette rien. I do not mean that I got everything exactly right, but I miss my youthful exuberance. I wonder, in the words of Birdman, “What happened to that boy?”

Here is one of the passages that, introspect, seems most poignant:

I argue that but for the fruits of slavery and entrenched racism, African Americans would not find themselves disproportionately represented in the criminal justice system. It is important for the law to recognize that there are so many African Americans in prison because white people have driven them there.

The last sentence, it turns out, was incomplete.

I was making an argument for robust reform of the criminal legal process because I was more optimistic about “the law” than now. In 1997, neither Tamir Rice, Michael Brown, nor Elijah McClain had even been born. Breonna Taylor was a toddler. George Floyd was twenty-three years old and Eric Garner was twenty-seven. All of those Black people are gone now, their lives extinguished by “the law.”

What happened to that young law professor was that he observed a tragic parade of Black death at the violent hands of the state. He came to understand that his exhortation that the law “recognize” the role of whiteness in creating Black criminality was naïve. The enforcement of white supremacy is, if not the animating purpose of mass incarceration and police brutality, an endemic feature of the law and policy that authorize those atrocities.

For this reason, the “problems” I described in 1997, including selective prosecution of African Americans for drug crimes and vast disparities in incarceration, are not bugs in the criminal legal system but integral features of it. Thus, in 2015 African Americans and Latinos comprised 29 percent of the U.S. population but 57 percent of the prison population. They are half of those incarcerated for drug crimes, although they don't commit drug offenses more than white people. The problems have not been solved because nothing was broken, and so there was nothing to fix.

Race disparities in incarceration have fallen some since 2000, but the number of Blacks locked up compared to whites is still extraordinary. The Black-white state imprisonment disparity fell from 8.3-to-1 in 2000 to 5.1-to-1 in 2016, and the Hispanic-white parole disparity fell from 3.6-to-1 to 1.4-to-1. The most likely explanation is the dramatic decrease in urban crime during this time, rather than any race-conscious policies designed to reduce disparities. Even with the reductions, the United States is not close to reaching the goal described in the Article for 2000: prisons that look like America, meaning that their racial demographics reflect the diversity of their communities.

One reason these race disparities continue to exist is because they are what many white people prefer. Research by Stanford University social scientists revealed that when white people learn that a harsh criminal justice policy disproportionately burdens African Americans, it makes them support the policy more.

I would not have imagined, in 1997, that criminal justice reform would have more political saliency than affirmative action. But two decades later, affirmative action is on life support and ending mass incarceration has broad political support.

The Court's shift on affirmative action is reflected in two competing aphorisms. In Bakke, Justice Blackmun wrote “[I]n order to get beyond racism, we must first take account of race. There is no other way. To treat some persons equally, we must treat them differently.” In Parents Involved in Community Schools v. Seattle School District, which struck down a school desegregation plan, Justice Roberts contended: “The way to get beyond race is to get beyond race.”

A few years after my Article was published, the Court decided Grutter v. Bollinger. In Grutter, a white woman denied admission to the University of Michigan Law School accused the university of using race as a predominant factor in admitting students. In a 5-4 decision, Grutter affirmed that achieving diversity on college campuses is a compelling state interest.

But many of the Court's subsequent cases have narrowed the reach of race-conscious remedies. In a decision handed down on the same day as Grutter, the Court ruled in Gratz v. Bollinger that the University of Michigan undergraduate school could not use a point system that awarded underrepresented minority applicants a fixed number of points towards admission. The Court found that such a policy did not provide the “individualized consideration” of applicants deemed necessary under the strict scrutiny standards established in previous cases.

In Parents Involved in Community Schools v. Seattle School District No. I, the Court, split 4-1-4, struck down efforts for voluntary school desegregation in Seattle and Louisville. Both school districts at issue used individualized racial isolation through student assignment. The Parents Involved Court recognized that seeking diversity and avoiding racial isolation are compelling state interests but concluded, nonetheless, that the plans were not sufficiently “narrowly tailored” to satisfy the strict scrutiny standard.

In Grutter Justice O'Connor declared, “The Court expects that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.” Justice Clarence Thomas dissented, but concurred with the majority only on this point: “racial discrimination in higher education admissions will be illegal in 25 years.”

Seven years short of the deadline that the justices set for the sunset of affirmative action, its prediction may come to fruition even sooner than anticipated. The Supreme Court in 2021 is perhaps the most right wing of the last hundred years, and it is likely that there are enough votes to declare affirmative action unconstitutional when the appropriate case reaches it.

While affirmative action in education is on its' deathbed, the need for affirmative action in the criminal law has never been more clear. Perhaps the most consequential development since publication is that a movement for Black lives has risen up. The death of George Floyd inspired, in the summer of 2020, the largest social justice protests in the history of the United States. Many progressives are embracing radical measures, including defunding the police and abolishing prison. Their proposals have been extremely controversial, including among liberals. But for many in the movement for Black lives, reform has lost its prestige. I want to suggest that adoption of the proposals outlined in my Article might have forestalled this development. As I wrote, affirmative action in criminal law is less “subversive than alternatives such as race-based jury nullification or revolution.”

Still, while racial justice is one of the primary objectives of many police and prison abolitionists, the projects themselves are largely color-blind. The conservative project for color-blindness has been largely a success. Even many progressives reject racebased remedies. When President Barack Obama was pressed to do more for communities of color, he responded, “I can't pass laws that say I'm just helping Black folks.” He relied on a colorblind “rising tide lifts all boats” approach to racial justice. But many Black and Native people never had a boat in the first place.

In the Article I observed “it is unfortunate that race-conscious solutions sometimes engender more controversy than race-conscious problems. Affirmative action assumes, correctly, that legal and political strategies exalting color blindness are doomed to fail, or at least to fail African Americans.”

I worry that even radical, but color blind, strategies will fail Black people. For example, many abolitionists promote gradual decarceration, which begins with people who are incarcerated for nonviolent offenses, like drug crimes. This would in the short term actually enhance race disparities, because Black men are disproportionately represented among the people convicted of violent crimes who would remain locked up. The abolitionist concept of the “dangerous few,” i.e., people who would have to be closely monitored bythe state even in an abolitionist regime, might also have a racial skew.

In the end, the proposals I made in 1997 are just as necessary now as they were then, and this country is no closer to achieving them, or the Article's larger objective of equal justice under the law for African Americans. Black lives continue to be discounted by the criminal law, while the right-wing project of eliminating race consciousness from the law, including affirmative action, steadily advances.

[. . .]

Why are more than half of the men in state and federal prisons African American? Why are almost half of the women in state prisons African American? Why are more than one in three young African American men under criminal supervision?

Perhaps the problem is related to others:

Why is African American academic performance worse than that of whites?

Why can't many minorities get promoted to senior management positions or win government contracts?

Why aren't there more minorities in Congress?

If these problems are related, perhaps the legal and public policy responses to them should be coordinated.

Affirmative action has been one response to several of the aforementioned problems. It is a remedy that has enjoyed reasonable success. However, in addressing the problems of African Americans, affirmative action largely has been limited to the contexts of education, employment, and voting. Affirmative action has ignored one of the most troubling disparities between the white majority and the black minority in the United States. The purpose of this article is to make the case for affirmative action in criminal law.

In the criminal justice system, as in civil law, there is tension between the ideal of formal equality and the reality of white supremacy, historic and present. In civil law, one response has been to give preferences to victims of white supremacy in the distribution of benefits like education and employment. The legality and morality of race preferences rests on the assumption that white supremacy is the direct or indirect cause of substandard minority achievement. I agree and, in this article, I extend that assumption to crime and punishment. I argue that but for the fruits of slavery and entrenched racism, African Americans would not find themselves disproportionately represented in the criminal justice system. It is important for the law to recognize that there are so many African Americans in prison because white people have driven them there. Justice requires thoughtfulness about how race matters in the punishment of black people in the United States.

I recommend six proposals for affirmative action in criminal law, which I discuss at the end of this article. I suggest that retribution shall not justify punishment of African American criminals, and that rehabilitation must be the primary justification for their punishment. I recommend that black criminal defendants have majority black juries that are authorized to sentence them. I propose that black people not be sentenced to death for interracial homicide. I recommend that African Americans be arrested, tried, and sentenced for drug crimes only in proportion to their actual commission of those crimes. Finally, I urge, as a goal for the year 2000, a prison population that more accurately reflects the racial diversity of America.

Affirmative action in criminal law is not as radical a proposition as it may initially seem. Within the criminal justice system, some criminal procedures are race conscious; some criminal procedures, moreover, reflect non-racial fairness preferences even when such preferences defeat formal notions of equality. Using affirmative action to correct race-based injuries suffered by African Americans would be consistent with the policies that underlie these procedures.

Legal and popular rhetoric against affirmative action embraces color blindness, apparently at all costs. The liberal response to critics of affirmative action is summed up in Justice Blackmun's famous aphorism: “[I]n order to get beyond racism we must first take account of race. There is no other way. To treat some persons equally, we must treat them differently.” People who oppose affirmative action in civil law are not likely to embrace it in criminal law. Thus, my argument will engage mainly those who lean toward affirmative action. But it may be that this reader's reaction to the extension of the policy to criminal law reveals the truth of another aphorism: a conservative is a liberal who has been mugged. I hope to demonstrate that there is no logical argument for limiting racial preferences to some victims of white supremacy, while excluding the most dangerous and pathetic victims: black criminals.

Some well-meaning people think about affirmative action the way they think about abortion: allowing it may be good public policy, but the mechanics of the process are discomforting. In arguing for the extension of affirmative action to criminal law, I hope to force people to rethink the general policies that motivate racial preferences. I believe this concept of justice for the oppressed can survive close scrutiny and indeed will emerge stronger.

Part II of this article defines affirmative action and describes its legal and moral justifications in civil law. Part III questions whether those justifications apply to criminal law and concludes that they do. Part IV explores two aspects of criminal justice that pave the way for race-based affirmative action: first, lawful considerations of race in the administration of justice and, second, fairness preferences for some non-racial groups, including rape victims and death-sentenced persons. Part V makes a constitutional argument for affirmative action in criminal law, and Part VI proposes six race-conscious remedies that would improve criminal justice.

[. . .]

The situation, for black people, is desperate. If present trends continue, the majority of African American men between the ages of eighteen and forty will be incarcerated by the year 2010. African American women are the fastest growing segment of the prison population. In the face of these dire developments, affirmative action is a limited but proven remedy that has ameliorated racial inequities in important sectors of American society: education, employment, and democracy. Affirmative action's concept of justice should be extended to the criminal law. It is less subversive than alternatives such as race-based jury nullification or revolution.

It is unfortunate that race-conscious solutions sometimes engender more controversy than race-conscious problems. Affirmative action assumes, correctly, that legal and political strategies exalting color blindness are doomed to fail, or at least to fail African Americans. Our criminal courts and prisons teem with evidence of the failure thus far. At some point the criminal law's color blindness must be replaced with criminal justice. How many more black people must be punished to bring us to that day?

Albert Brick Professor in Law Georgetown University Law Center.

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