CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, December 3, 2021

Sow on Race and Policing

Marissa Jackson Sow (St. John's University) has posted Protect and Serve (California Law Review, Forthcoming) on SSRN. Here is the abstract:
There exists a substantial body of literature on racism in policing, police brutality, police reform, and even police abolition, as well as the militarization of the police, and the relationship of the police to the State and its citizenry. With respect to the relationship between the police and Black people in the United States, theories abound and most of these theories rest upon the basic assumption—undergirded by constitutional, civil rights, and human rights law—that Black people in the United States are entitled to due process and equal protection when they are in contact with the police or other law enforcement officers.

This Article uses the theory of whiteness as contract and advances a critical theory of contract law to challenge that basic assumption and instead advance the claim that the mandate that police “protect and serve” does not apply to Black people in actuality, notwithstanding the provisions of constitutional and statutory law, because Black people are the objects of racial contracting rather than participants therein. The police are charged with protecting the racial contract and serving the contract’s signatories; accordingly, they enforce the contract’s terms, requiring them to specifically target Black people for surveillance, harassment, deprivation, and even death, lest the contract be subject to breach or other interference.

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