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Criminal Law and the Pursuit of Equality

37 Pages Posted: 30 Jul 2008  

Donald Braman

George Washington University - Law School; Cultural Cognition Project

Date Written: July 24, 2008


This Article argues that, to make their vision of justice a reality, egalitarians need to change both their focus and their tactics with respect to criminal law. The tragedy of contemporary criminal justice is not that individual rights are too narrowly construed, but that those living in disadvantaged communities are injured both by crime and counter-productive law enforcement. The remedies that egalitarians have historically looked to - remedies articulated within the framework of individual rights - are poorly suited to address the systematic reproduction of inequality that results.

First, egalitarians will need to shift their focus from the racially motivated harms directed at individual criminal offenders and defendants to the collateral and often unintentional harms borne by non-criminals in their communities. Second, as a matter of pragmatic reform, egalitarians should shift their focus from the doctrine of individual liberties to more modest policy reforms aimed at increasing the influence that citizens in disadvantaged communities exercise over the form of justice itself. For too long, these communities have been asked to choose between expansive readings of criminal rights or oppressively harsh criminal sanctions - either choice making them a party to their own subordination.

As a remedy, I argue for an approach coordinated across the political branches, an approach that seeks to make both criminals and the criminal justice system more responsive to the practical concerns of the citizenry. I review empirical data indicating that the public is eager for reforms that do both, and I outline a modest reform to leverage this popular preference, a form of jury polling that elicits greater information about the popular preferences as a regular part of criminal jury trials. This kind of reform, I argue systematically (and respectfully) elicits greater information about and draws attention to the complex needs of those living in our nation's most vulnerable neighborhoods.

Keywords: criminal law, criminal procedure, equal protection, juries, second reconstruction

JEL Classification: K14, D63, K40, K42, I31

Suggested Citation

Braman, Donald, Criminal Law and the Pursuit of Equality (July 24, 2008). Texas Law Review, Vol. 84, No. 7, 2006. Available at SSRN:

Donald Braman (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Cultural Cognition Project ( email )

2000 H St NW
2000 H Street
Washington, DC 20052 20052
United States
202-491-8843 (Phone)
202 491-8843 (Fax)


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