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Excerpted from: Valeria Vegh Weis, Criminal Selectivity in the United States: A History Plagued by Class & Race Bias, 10 DePaul Journal for Social Justice 1 (Summer, 2017) (157 Footnotes) (Full Document)


Valeria Vegh WeisThe United States is at a pivotal point in terms of rethinking class and racial inequality within the criminal justice system. Although the financial and humanitarian crisis of the penal system has been escalating since the 1970s, it was not until the beginning of the century that academics, politicians and think tanks started to intensively discuss the process of mass incarceration, understanding it as part of broader system of mass penal control. This discussion has recently been radicalized by high tensions between law enforcement and communities of color. At the core of these debates, statistics evidence the demographic features of those targeted by crime control: the poor and communities of color. These subsets are also over-represented among those killed by the police, a phenomenon that has encouraged the emergence of the Black Lives Matter movement.

However, there is a lack of shared conceptual tools to frame this debate. First, there is no clear or comprehensive theoretical tool to describe, categorize or analyze class and racial inequality throughout the criminal justice process. Instead, current tools focus, separately, on the enactment of laws, on the performance of police officers, on the actions of judges, juries and prosecutors, or on the administration of punishment. This means that there are notions to describe either inequality during the enactment of laws committed by legislators and the executive power (e.g. inequality under the law); or inequality during the enforcement of the law committed by police officers (e.g. racial profiling); or inequality during the judicial process committed by prosecutors (e.g. biased prosecutorial discretion); or inequality during the administration of punishment by correctional officers or parole boards (e.g. disparities in prison treatment, or disparities in the granting of parole). However, there is no conceptual tool to analyze the systematic pattern of unfairness throughout all those stages of the criminal justice process as a whole.

scholars use different language to describe how inequality operates in each of the mentioned stages within the criminal justice process. Thus, without shared and clearly defined conceptual tools, we are losing the potential to frame and elucidate the public discussion about how to change inequality in the criminal justice system.

Third, there is a lack of conceptual precision about the mechanisms through which inequality operates. For example, how does inequality take place at the level of statutes' drafting? Are there conceptual tools that could help us to identify a common pattern through which inequality operates at this stage? Is there any specific historical framework in which this pattern emerged or expanded in the United States?

These three problematic aspects of conceptual framing result in ambiguity of discussing consistent crime policy. Therefore, the aim of this study is to overcome this gap, and offer conceptual tools that can serve as analytical categories to precisely describe and analyze inequality in the criminal justice system. The conviction is that these categories will help avoid ambiguities and will offer shared tools to carry on the necessary discussions about how to change the unequal functioning of crime control. In short, this theoretical clarification will facilitate the public debate and the further development of more accurate public policies.

To do so, Part 2 approaches the first two problems. To overcome the first issue (lack of conceptual tools to describe inequality in all stages), this article proposes to deploy the concept of criminal selectivity. This notion provides a comprehensive understanding of the systematic unfairness of the criminal justice system, based on class and racial bias, but also on gender and age considerations. To overcome the second issue (lack of shared categories to analyze inequality in each of the criminal justice levels), Part 2 also systematizes different notions used by scholars. Against this background, this article proposes and defines most suitable conceptual tools to identify and analyze each of the stages of the criminal justice process in which criminal selectivity takes place.

Upon this framework, Part 3 then offers a historical overview of the American criminal justice system to understand how criminal selectivity enhanced in the late 20 century. It is proposed that the 1970s represent a breaking point regarding class and racial bias in the United States criminal justice system.

Part 4 puts the suggested categories in practice to answer the third identified problem. It analyzes how criminal selectivity has been functioning in the United States since the 1970s. This analysis helps conceptualize the drastic expansion of crime control over low-income young and undereducated Black-American and Latino males since the last third of the 20 century, as well as the current extreme situation in terms of racial and class inequality.

Lastly, Part 5 offers final reflections.

In sum, this article offers a theoretical scheme for a comprehensive understanding of the unfairness of the criminal justice system, particularly in relation to class and racial bias through the concept of criminal selectivity (and its mechanisms of primary and secondary over-criminalization and under-criminalization). The design, discussion and application of this conceptual tool must be carried on carefully. Therefore, only a comprehensive, interdisciplinary and intersectorial approach to define and analyze crime control will help overcome the current situation of conceptual ambiguity, opening the path for thorough and lasting crime policies.

. . .

A better understanding of criminal inequality to effectively change it forms the premise of this article. Inequality in the U.S. criminal justice system is an uncontested fact. However, a strict conceptualization of how it operates is still missing. Clarification and definitions of notions to describe and understand how this unfairness takes place constitutes a necessary step to challenge, dispute and change the current biased functioning of the U.S. criminal justice system.

Following this path, this article proposes the concept of criminal selectivity to understand how inequality plagued each of the instances of the criminal justice system. It is not about racial profiling or prosecutorial discretion as isolated practices. Conversely, the article shows that it is necessary to understand unfairness as a pattern afflicting each of the stages of the criminal justice process. The article explored each of these stages (from the sanction of substantive and procedural legislation, through law enforcement activity, the judicial stage, and administration of punishment), and demonstrates how criminal selectivity operates distinctively in each of them. The article also shows that criminal selectivity has not operated uniformly over time. Instead, it has operated differently at each stage and also according to the characteristics of the evolving socio-economic contexts. The research exposes that the 1970s were a transformative time period, including socio-economic changes, which pushed entire subsets of the population to impoverishment, while calling for the expansion of the criminal justice system to exercise social control over them. Additionally, the 1970s were a crucial decade in which racism was not more tolerated in the explicit letter of the law, and started to operate through a selective application of apparently color-blind laws.

As this is the first time that the concept of criminal selectivity is conceptualized, there might be aspects needing to be perfected. Also, further research must be conducted to continue exploring how each of the aspects of criminal selectivity (primary and secondary over-criminalization, and primary and secondary under-criminalization) influences the everyday functioning of the U.S. legal system. However, introducing the concept of criminal selectivity is already helpful to develop a better understanding of the unfairness of the criminal justice system as a holistic and complex phenomenon. The conviction of this article is that theoretical clarification of this unfairness can serve to craft comprehensive responses to analyze and overturn it. In short, conceptual clarification constitutes a privileged tool to achieve material transformation.