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when the criminal law is made not by laws but by the prejudices of judges, prosecutors, and the people of a state, the criminal law and the criminal justice system are inherently racist. laws should reflect the enduring principle of equality before the law. this is the essence of what we mean when we say that the law is color blind. in making rules that favor one race over another, the criminal justice system turns law into a weapon of racial oppression. the criminal law-making process is at once in the interest of justice and the enemy of justice. it seeks to punish black crime and acquit white crime. it seeks to imprison black defendants and release white defendants. and it does all this in the name of blind justice, oblivious to race. this is what makes the criminal justice system unjust and inherently racist.
the problem is that many politicians and policymakers, including very capable and intelligent african-americans, have been sold a bill of goods about the need to enforce the criminal law. they believe that racial minorities have a better understanding of the problems that african-americans face, and that laws should be kept tough to keep african-americans safe. this is a bait and switch con. in reality, whether one is black or white, educated or uneducated, there is only one kind of crime and punishment: the punishment for crime.
these contemporary issues have been familiar to people for generations. black crime was much more frequent and violent than white crime was. to be sure, there were outliers. the women of the harlem renaissance may have committed some crimes, and there was a legendary “negro” hotel robber, willy braswell, who operated out of chicago in the 1920s.
anyone who has lived in the united states of america has witnessed the great and continuing disparity in the enforcement of criminal law between races. for centuries, the criminal justice system has historically discriminated against racial minorities: in my book, the color of crime, i demonstrate how the modern criminal justice system is built around a pernicious pattern of racial discrimination. to be clear, those of us who work in the criminal justice system are aware that much has changed in recent decades and that this discrimination is not the basis for law. however, in the racially-divided u. s., racial discrimination against african-americans continues to undergird the criminal justice system. the experience of being criminalized, arrested, and incarcerated is different for african-americans than it is for whites and latinos. this is an injustice the size of which dwarfs the size of the wrongful conviction rate.
by defining crime by the victim rather than the perpetrator, criminal law begins to treat citizens differently based upon whether they are white or african-american. white criminals are treated differently than african-americans, and african-americans are treated differently than latinos. african-americans, latinos, and the poor are deemed more likely than whites to be crime victims. upon arrest and incarceration, most police, prosecutors, and judges are white and affluent. the criminal justice system has a built-in conflict of interest. there is no shortage of stories of horrific prosecution, conviction, and sentencing of african-americans for crimes committed by white perpetrators.
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