Thursday, April 29, 2021
Ion Meyn (University of Wisconsin Law School) has posted Race-Based Remedies in Criminal Law on SSRN. Here is the abstract:
This Article evaluates the constitutional feasibility of using race-based remedies to address racial disparities in the criminal system. Compared to white communities, communities of color are over-policed and over-incarcerated. Criminal system stakeholders recognize these conditions undermine perceptions of legitimacy critical to ensuring public safety. As jurisdictions assiduously attempt race-neutral fixes, they also acknowledge the shortcomings of such interventions. Nevertheless, jurisdictions dismiss the feasibility of deploying more effective race-conscious strategies due to the shadow of a constitutional challenge. The apprehension is understandable. Debates around affirmative action in higher education and government contracting reveal fierce hostility toward race-based remedies.
This Article, however, contends that within the criminal system, strict scrutiny requirements do not pose an insurmountable obstacle to race-based policies. There is promising decisional law surrounding the use of race-conscious efforts to address criminal-system challenges. Drawing on this favorable doctrine, the Article tests the constitutionality of race-based remedies in one of the most dynamic areas in the criminal system: the use of risk assessment tools, which jurisdictions are increasingly relying upon to make decisions, even as these tools reproduce racial harms. To enrich the analysis, the Article presents a case study of a jurisdiction struggling to mitigate racial harms perpetuated by its pre-trial risk assessment tool.
The Article finds reasons to be optimistic about how race-based remedies might fare within the criminal-system context, where courts are predisposed to granting broad discretion to the stated needs of criminal law stakeholders. Within this unique context, the Article provides a template for a race-based approach that potentially survives an Equal Protection challenge.