The Under-Policed

22 Pages Posted: 14 Sep 2016

Date Written: September 13, 2016


While there is much to be said about the problem of mass incarceration and strategies for de-incarceration, the goal of this essay is to bring two things to the conversation. The first is to bring attention to the complex role misdemeanors play in compounding the problem of mass incarceration. The second is to call attention to race, but not in the usual way. Usually, when we think of race and criminal justice, we think of racialized policing and the overrepresentation of racial minorities in jails and prisons. But what happens when we consider criminal justice not only as an issue of overcriminalization and overenforcement vis-à-vis racial minorities, but also as an issue of undercriminalization and underenforcement vis-à-vis non-minorities? Put differently, in this time when we are again discussing white privilege and the hashtag #Crimingwhilewhite has become a phenomenon, are there advantages to talking about white privilege — or more generally, privilege — and criminal justice? If there exists what Randall Kennedy calls a “racial tax,” are there benefits to asking who gets a “racial pass”? Are there advantages to talking about the under-policed? Finally, how might those conversations impact the issue du jour, mass incarceration? This essay concludes by offering some suggestions for reducing mass incarceration.

Keywords: Mass Incarceration, Misdemeanors, Marijuana Arrests, Critical Race Theory, Race, White Privilege, Policing, Criminal Justice

Suggested Citation

Capers, I. Bennett, The Under-Policed (September 13, 2016). Wake Forest Law Review, Forthcoming, Brooklyn Law School, Legal Studies Paper No. 467, Available at SSRN:

I. Bennett Capers (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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