The Conflict Among African American Penal Interests: Rethinking Racial Equity in Criminal Procedure

Abstract

This Article argues that neither the criminal justice reform platform nor the penal abolition platform shows the ambition necessary to advance each of the primary African American interests in penal administration. It contends, first, that abolitionists have rightly called for a more robust conceptualization of racial equity in criminal procedure. Racial equity in criminal procedure should be considered in terms of both process at the level of the individual, and the number of criminal procedures at the level of the racial group—in terms of both the quality and “quantity” of stops, arrests, convictions, and the criminal sentencings that result in jail or prison admission. To this end, the Article proposes that the principle of racially unbiased criminal procedure be coupled with the (seemingly quixotic) pursuit of racial proportionality in criminal procedure.

But African Americans have at least two other primary interests in penal administration: a security interest (in relation to private violence) and a democratic interest (in regard to the group’s influence over penal institutions). To pursue racial proportionality in criminal procedure while also advancing the African American security and the African American democratic interest—that is, to overcome the prospect of a zero-sum relationship among these interests—criminal scholars must embrace the reform platform while adding welfarist and employment policy solutions as a supplementary normative dimension.

Keywords: race, abolition, reform, criminal procedure, security, public safety, democracy, African American, racism