Procedure's Racism

59 Pages Posted: 8 Mar 2021 Last revised: 22 Mar 2021

See all articles by Russell M. Gold

Russell M. Gold

University of Alabama School of Law

Date Written: March 21, 2021

Abstract

Criminal procedure is systemically racist and classist. This Article argues that comparing criminal procedure to civil procedure on a broad scale provides new and valuable insight into the systemic racism and classism woven into the fabric of U.S. law. Criminal defendants are disproportionately poor people of color, while civil defendants are often wealthy corporations whose executives are largely White; those wealthy civil defendants play an outsized role in developing civil procedure. One might expect to see greater procedural protections before criminal defendants are deprived of their liberty than for civil defendants before they are deprived of their money. But the reality cuts decidedly the other way. Instead of calibrating protections for defendants to the importance of the interest at stake, disparities between the civil and criminal systems instead track differences in race and class between defendants in the two systems. Criminal defendants, for instance, can be locked in cages for two days on a mere accusation by police before a magistrate considers the validity of that deprivation. Civil defendants, by contrast, cannot be deprived of their property without first having a judge hear their arguments. Criminal defendants sometimes do not learn about the government’s evidence until the eve of or during trial—a trial that comes in scant few cases. Civil defendants would never be forced into such a trial by surprise but rather have numerous tools of formal discovery to compel evidence from the opposing party throughout the pretrial period.

The primary focus of this Article is demonstrating that procedure disparities between civil and criminal systems largely track race and class. But it also briefly compares changes in available punishment. In criminal law, pathological politics largely create a one-way upward ratchet whereby criminal law continues to afford prosecutors ever-greater power and discretion to pursue ever greater sentences. In tort law, by contrast, most state legislatures have limited plaintiff’s lawyers’ discretion through reforms such as caps on noneconomic damages or limits on punitive damages. So too is the Supreme Court’s role in regulating substantive fairness in these two systems widely disparate. In criminal law, the Supreme Court upheld a life sentence for a defendant convicted of $88 check theft. By contrast, the Supreme Court struck down a $2 million punitive damages award against a multinational corporate defendant as unfair. This Article offers the big-picture analysis of how comparing civil and criminal systems in the U.S. reveals systemic racism and classism.

Keywords: criminal law, criminal procedure, civil procedure, systemic racism, institutional racism

Suggested Citation

Gold, Russell M., Procedure's Racism (March 21, 2021). U of Alabama Legal Studies Research Paper No. 3799298, Available at SSRN: https://ssrn.com/abstract=3799298 or http://dx.doi.org/10.2139/ssrn.3799298

Russell M. Gold (Contact Author)

University of Alabama School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States
205-348-1139 (Phone)

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