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Excerpted From: Darren Lenard Hutchinson, “With All the Majesty of the Law”: Systemic Racism, Punitive Sentiment, and Equal Protection, 110 California Law Review 371 (April, 2022) (420 Footnotes) (Full Document)

DarrenLenardHutchinsonDuring the summer of 2020, racial violence by law enforcement sparked social unrest in the United States. The conflict began after the May 25 killing of George Floyd, a Black man, by White Minneapolis police officer Derek Chauvin. Floyd's encounter with police started after a store clerk called 911 to report that a customer allegedly purchased a package of cigarettes using a counterfeit twenty-dollar bill. Video footage captured by a witness shows Floyd on the ground while Chauvin kneels on Floyd's neck for at least seven minutes and forty-six seconds. During the last minutes of his life, Floyd said he could not breathe over twenty times plea made by victims in several widely scrutinized cases of police violence. Chauvin continued to suffocate Floyd even though he did not resist. Three other officers--J. Alexander Kueng, Thomas K. Lane, and Tou Thao--were present during Floyd's arrest and death. None of the officers intervened to prevent Chauvin's use of force, and at least two of them helped restrain Floyd. Chauvin continued kneeling on Floyd's neck even after he became unresponsive. Chauvin kneeled on Floyd's neck even as Kueng twice checked for, and failed to find, Floyd's pulse. Chauvin stopped strangling Floyd only after emergency personnel arrived to administer aid.

Protests erupted in Minnesota after video footage of Floyd's killing became public. Demonstrations spread rapidly across the United States. The unrest deepened after Hennepin County Attorney Michael Freeman stated during a press conference that, notwithstanding the video, “there is other evidence that does not support a criminal charge.” In the midst of widespread criticism and escalating unrest, Freeman filed criminal charges against Chauvin the day after his press statements. Public unrest worsened because Freeman filed charges that many believed were too lenient under the circumstances. Subsequently, the medical examiner and a private forensic pathologist hired by Floyd's family classified his death as a homicide, concluding that the police restraint deprived him of oxygen, causing his demise. Meanwhile, the Minnesota Attorney General's Office conducted an investigation and issued new charges against Chauvin, including second-degree murder. The Attorney General also filed charges against the other three officers. A Minnesota jury later convicted Chauvin on all charges.

Floyd's killing is part of a long history of racial injustice in criminal law and enforcement, and resistance to those abuses. Minneapolis activists had already organized around racial injustice, and many local Blacks did not trust local police and prosecutors. Black Lives Matter (BLM) played a central role in protests surrounding Floyd's death, locally and around the world. The Black Lives Matter movement formed after George Zimmerman's acquittal for the murder of Trayvon Martin. Today it has evolved into an international social movement. By engaging in protests, social media organizing, and other forms of activism, Black Lives Matter has gained political prominence. Additionally, the movement has made police violence, racism, and lack of concern for Black bodies salient in public policy and politics.

Although the Black Lives Matter movement seeks both nonlegal and legal remedies for systemic racism, the law remains ill-suited to redress racial subordination. In fact, many legal rules, doctrines, policies, and officials contribute to the subordination of persons of color and strengthen White supremacy. The earliest systematic use of criminal law and enforcement to construct racial hierarchy in the United States occurred during slavery, when Slave Codes created discriminatory criminal law and punishment for Blacks--slave or free. Judicial interpretation of criminal law mandated Black submission to Whites, while empowering Whites to exercise full dominion over Blacks. During Reconstruction, Slave Codes reemerged as Black Codes. Though largely facially neutral, the Black Codes contained civil and criminal provisions primarily enacted to pursue the same objectives as the Slave Codes: to control Black bodies, preserve White supremacy, and extract unpaid labor to service the regional economy. Despite the end of the Black Codes and the eventual demise of explicit race classifications in state action, the enforcement of anticrime policies continues to result in pronounced racial disparities. The nation has largely extricated formal race from the law, but racism remains intact.

This Article fills a substantial void in legal scholarship on race, constitutional law, and criminal justice policies by analyzing three critical concerns.

First, this Article extends social psychology theories of present-day racism to doctrinal analysis. Social scientists contend that after the Civil Rights Movement, expressions of racism mutated into subtle forms, often described as symbolic or new racism. These modalities include, but are not limited to, implicit bias, racial resentment, and social dominance orientation (SDO). While implicit bias research has greatly influenced legal scholarship on racial discrimination, scholarship has given insufficient consideration to other expressions of racism. However, these social psychology theories bolster findings made in implicit bias research and offer arguably stronger models for conceptualizing the complexity of racism.

Second, this Article analyzes social science research, finding a statistically significant positive correlation between racism and strong punitive sentiment or support for aggressive criminal justice polices, such as incarceration, law and order policing, and capital punishment. Although this body of research has not established causation, scholars have almost consistently found that racism is a strong predictor of White punitive sentiment. The relationship between racism and punitiveness is more robust than with other common correlates, such as fear of crime or status as a crime victim. The positive and consistent correlation between racism and punitiveness raises many troubling concerns regarding the adjudication of race-equality claims. Numerous social science studies directly counter the Supreme Court's view that racism occurs consciously and rarely, and that criminal justice policies are presumptively race neutral. But the Supreme Court has not cited any social science research demonstrating that the Court's understanding of race, expressed in equal protection doctrine, accurately reflects contemporary modes of racism and racial discrimination.

Third, this Article employs contemporary research on race and punitive sentiment to criticize judicial handling of race-equality claims. Presently, constitutional doctrine assumes that facially neutral state action, including criminal justice policies, normally does not discriminate against people of color, regardless of the magnitude or severity of resulting racial disparities. Court rulings also frequently reject the contention that historical racism provides a framework for interpreting racial disparities related to U.S. anticrime policies. This dismissal, however, ignores the centrality of anticrime policies in the construction and maintenance of racial inequality. It also fails to engage social science research that finds a strong correlation between racism and punitive sentiment. Judicial interrogation of the historical use of criminal law and its enforcement to subjugate people of color could permit a more informed and contextualized assessment of plaintiffs' cases. Courts constitutionalize systemic racial inequality when they refuse to follow such an approach. Given the limits of equality litigation in federal courts, advocates must continue pursuing political strategies for reform.

This Article proceeds in four principal parts. Part I analyzes the historical use of anticrime policies to subordinate persons of color and preserve racial hierarchy. Part I.A discusses the origins of racist criminal justice practice during slavery. Part I.B scrutinizes the continuation of racial subjugation through criminal law and enforcement during Reconstruction. Part I.C explores the continued use of criminal law and enforcement to preserve racial hierarchy from Jim Crow to the present. Part II examines social science research on contemporary manifestations of racism, the racist dimensions of punitive sentiment, and the inutility of Court doctrine in light of this research. Part II.A analyzes contemporary modalities of racism, including implicit bias, racial resentment, and social dominance orientation. Part II.B discusses research linking contemporary racism with a desire to punish. Part III employs contemporary modalities of racism to criticize Supreme Court equality doctrine. Part III.A discusses early Supreme Court cases that could support a substantive view of equality. Part III.B mobilizes social science research on subtle racism and racism's strong correlation with White punitive sentiment. From this, Part III.B argues that equality cases situated at the intersection of criminal law and race warrant close judicial scrutiny due to the history of brutal racism in this setting. Building from these themes, Part IV focuses on how contemporary judicial applications of formal equality doctrines legalize racial inequality in criminal law. Part IV.A constructs a reformed and more robust equality doctrine capable of combatting racial injustices caused by criminal law and enforcement, while suggesting other methods of reform. Part IV.B anticipates and responds to potential criticism, including that the proposed models could lead to judicial overreach, are unnecessarily narrow because other areas of social policy have longstanding histories of racism, and are insufficient because they promote reform rather than transformation.

[. . .]

Criminal law and enforcement functioned as a powerful instrument of racial subordination from the earliest moments of United States history. Modes of racism have shifted over time. Slavery morphed into convict leasing, apprenticeships, and debt peonage. Lynching evolved into the death penalty. Violent ejection of Latinx and Asian Americans by White mobs fueled modern border control policies. Jim Crow criminal law reemerged as mass incarceration, disparate arrests and sentencing, and police surveillance and violence.

Presently, Supreme Court doctrine does not offer much hope for people of color who suffer from the effects of racist criminal justice policies. Equality doctrine fails to redress racial injustice in three important ways. First, courts dismiss the usefulness of historical racism as a frame to contextualize contemporary racial disparities. Second, judges employ archaic theories of racism premised on the flawed belief that discrimination always occurs intentionally and leaves a trail of explicit evidence for victims. Lastly, courts assume, contrary to findings in a large body of social science studies, that facially neutral anticrime policies are presumptively nonracist. These doctrinal choices validate a broad range of criminal justice practices that impose severe harms and burdens on racial subordinates and preserve White supremacy.

The severe impact of anticrime policies on persons of color occupies center stage in present-day public discourse. As racial justice activists and legal scholars criticize institutional practices that replicate racial hierarchy, they should not treat courts as external or irrelevant. By validating anticrime policies responsible for racial subjugation, contemporary courts participate in racial injustice, regardless of intent. With substantial doctrinal reform, however, courts could give substance to the Equal Protection Clause and make it more consistent with the goals of abolitionists who wanted to create federal remedies for southern Blacks experiencing re-enslavement and denial of political freedoms due, in large part, to racist enforcement of criminal law. A reinvigorated equality doctrine could mean, from the standpoint of courts, that Black lives actually matter and that racial subjugation of persons of color is inconsistent with equal protection. Courts can help attenuate racial inequality only by recognizing the powerful influence of historical racism on contemporary practices, the evolving nature of racial bias, and the relationship between racism and punishment. By omitting these critical concerns from analysis, courts continue to validate and legalize racism, thus preserving White supremacy. Social justice strategies must target all institutions that empower White supremacy. Accordingly, private institutions, legislators, executives, and courts should receive scrutiny from antiracist activists and scholars.

John Lewis Chair for Civil Rights and Social Justice, Emory University School of Law.

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