At the Intersection of Race and History: The Unique Relationship between the Davis Intent Requirement and the Crack Laws
56 Pages Posted: 13 Mar 2012
Date Written: 2007
This Article chronicles the history of Davis and racialized mass imprisonment in a way that shows the connections between the politics behind the construction of law - in both public policy and common law - and social developments commonly understood as tangential to constitutional interpretation as opposed to both the impetus for and the intended result of certain modes of constitutional interpretation. The historical record, when viewed in this regard, is not merely a sequential chain of events occurring alongside the development of constitutional interpretation. Instead, the record details a long-standing logic, at times deployed to protect entrenched racial and class power by masquerading it as a legitimate framework of constitutional analysis.
The Davis decision will be chronicled and analyzed for its role in maintaining pre-existing patterns of racialized power and privilege across American society's transition from a regime of formal and substantive inequality (Jim Crow) to one of formal, facial equality, but persistent, substantive inequality (racialized mass imprisonment). This analysis hinges on reviewing the development of race politics, the Supreme Court, and social policy in the immediate post-segregation era. This analysis reveals that the intent requirement established in Davis is evidence of conscious judicial activism aimed at creating a very specific and indelible roadblock to racial progress in the post-segregation era, thus severely limiting a quarter century of anti-discrimination law in the courts. These calculations formed the fertile ground for the logic of the crack laws, while simultaneously giving them, and other racist legislation and state action, cover from equal protection attacks.
Keywords: mass imprisonment, cocaine, sentencing, Washington v. Davis, Supreme Court, race, racial discrimination, United States v. Clary, intent requirement
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