‘With All the Majesty of the Law’: Systemic Racism, Punitive Sentiment, and Equal Protection
Darren Lenard Hutchinson
United States criminal justice policies have played a central role in the subjugation of persons of color. While most state action no longer explicitly discriminates on the basis of race, anticrime policy remains a powerful instrument of racial subordination. The Supreme Court’s equal protection doctrine is ill equipped to combat racism associated with criminal justice practices. A more robust and effective doctrine would recognize the relevance of historical racism to contemporary anticrime policies; incorporate insightful conceptions of racism elaborated by social scientists, including implicit bias, racial resentment, and social dominance orientation; and recognize the racist dimensions of white punitive sentiment. In the absence of federal doctrinal reform, advocates of racial justice could pursue federal and state legislative and executive remedies and state judicial remedies to combat systemic racism associated with criminal law and enforcement.
“[T]o shoot those Greasers ain’t the right way. Give ‘em a fair trial and rope ‘em up with all the majesty of the law.”— Forgotten Dead: Mob Violence against Mexicans in the United States, 1848 –1928, by William D. Carrigan & Clive Webb (2013)
INTRODUCTION
During 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 20-dollar bill. Officers were dispatched, and the store clerk directed them to a vehicle Floyd occupied. Viral video footage captured by a witness shows Chauvin, kneeling on Floyd’s neck for at least 7 minutes and 46 seconds while he lied on the ground handcuffed. During the last minutes of his life, Floyd said he could not breathe over 20 times — a 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. Several minutes after Chauvin began kneeling on Floyd’s neck, Kueng tried to determine whether he was still alive. Kueng checked for a pulse twice and reported to the others that he could not find one. Chauvin still would not remove his knee from Floyd’s neck. Instead, he continued to kneel on Floyd even after he became nonresponsive. 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 District Attorney Mike Freeman stated during a press conference that notwithstanding the video, “there is other evidence that does not support a criminal charge.” Freeman’s suggestion that Chauvin’s use of lethal force on a nonthreatening suspect might not constitute a criminal act ignited criticism. 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 police restraint deprived him of oxygen causing his demise. Also, the Minnesota Attorney General conducted an investigation and issued new charges against Chauvin, including second- and third degree murder, and the other three officers.
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 this issue, and many local Blacks did not trust local police and prosecutors. Black Lives Matter played a central role in protests surrounding Floyd’s death — locally and around the world. The Black Lives Matter movement formed after the acquittal of George Zimmerman 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 legal remedies for systemic racism, the law remains ill-suited to redresses 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 enacted largely to pursue the same objectives as the Slave Codes — 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 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 examines the Court’s failure to scrutinize historical racism when equal protection claimants submit evidence of statistical racial disparities caused by anticrime policies. Judicial engagement of the historical use of criminal law and enforcement to subjugate people of color could permit a more informed and contextualized assessment of plaintiffs’ evidence.
Second, this Article contributes to legal scholarship by broadening the use of social psychology theories of present-day racism. 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 — Nonconscious or implicit racial attitudes and stereotypes that potentially cause racial discrimination;
- Racial Resentment — Hostility toward people of color resulting from acceptance of cultural narratives that portray economic and social betterment as a function of industriousness and individualism; and
- Social Dominance Orientation (“SDO”) — A personality trait associated with individuals who prefer living in societies marked by group-based inequality, including racial hierarchy. While implicit bias research has greatly influenced legal scholarship on racial discrimination, other categories of racism have not made much of an impact.
While implicit bias research has greatly influenced legal scholarship on racial discrimination, other categories of racism have not made much of an impact. These concepts, however, can bolster findings made in implicit bias research and offer alternative and, arguably, stronger models for conceptualizing the complexity of racism.
Third, this Article analyzes social science research finding statistically significant positive correlation between racism — symbolic or otherwise — and punitive sentiment. Although this body of research has not established causation, scholars have almost consistently found that racism is the strongest predictor of white punitive sentiment. The relationship between racism and punitiveness is more robust than other common correlates, such as fear of crime and status as a crime victim. The consistency of these findings raises many concerns regarding the adjudication of race-equality claims. Presently, the Court assumes that facially neutral state action, including criminal justice policies, normally do not discriminate against people of color, regardless of the magnitude or severity of resulting racial disparities. The Court has not cited any social science research that could demonstrate that its understanding of race expressed in equal protection doctrine accurately reflects contemporary modes of racism and racial discrimination. By contrast, numerous social science studies directly counter the Court’s view that racism occurs consciously and rarely and that criminal justice policies are presumptively race-neutral. Judicial resistance to invalidating racially disparate state action and private behavior means that its rulings validate systemic racism. Following Floyd’s death, many institutions in the United States released public statements condemning police brutality and promising to address systemic racism. Court rulings that validate systemic racism should also receive scrutiny within this public conversation about race.
In three principal parts, this Article examines the historical and contemporary relationship between criminal law and racial subordination, the Court’s antiquated and unhelpful understanding of racism, and social science research that strongly suggest that racism is embedded in the psychology of punishment and manifests through modalities including but not limited to implicit racial bias. 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 discusses the incapacity of equality doctrines to combat racial subordination caused by anticrime policies. Part II.A. engages ongoing debates over formal and substantive equality and discusses the implications of either approach for redressing systemic racism structured by anticrime policies. Part II.B. criticizes courts for adhering to an archaic and limited model of racial discrimination that does not respond to contemporary manifestations of racism, including implicit bias, racial resentment, and social dominance orientation. The correlation between contemporary racism and white punitive sentiment undermines the judicial presumption that facially neutral criminal justice policies are nonracist. Part III proposes reforms that could transform equal protection doctrine, making it helpful for combatting racial injustices caused by criminal law and enforcement. Part III. A. 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, social science research on subtle racism, and research finding that racism strongly correlates with white punitive sentiment. Building from these themes, Part III. A. constructs a reformed and more robust equality doctrine. Part III. B. anticipates and responds to potential criticism, including that the proposed reforms could lead to judicial overreach, the proposed model is unnecessarily narrow because other areas of social policy have longstanding histories of racism, and that the proposals are insufficient because they promote reform rather than transformation.
— from “With All the Majesty of the Law”: Systemic Racism, Punitive Sentiment, and Equal Protection, 110 California Law Review (forthcoming 2022)