Larkin & Canaparo on The Fallacy of Systemic Racism in American Criminal Justice

Paul J. Larkin and GianCarlo Canaparo (The Heritage Foundation and The Heritage Foundation) have posted The Fallacy of Systemic Racism in the American Criminal Justice System (Chapman Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Critics of the criminal justice system have repeatedly charged it with systemic racism. It is a tenet of the “war” on the “War on Drugs,” it is a justification used by the so-called progressive prosecutors to reject the “Broken Windows” theory of law enforcement, and it is an article of faith of the “Defund the Police!” movement. Yet, few people have defined what they mean by that term. This Article examines what it could mean and tests the truth of the systemic racism claim under each possible definition. None stands up to scrutiny.

One argument is that the American citizens who run our many institutions are motivated by racial animus. But the evidence is that racial animus is no longer tolerated in society, and what is more, the criminal justice system strives to identify it when it does occur and to remedy it.

Another argument says that the overtly racist beliefs and practices of the past have created lingering racist effects, but this argument cherry-picks historical facts (when it does not ignore them altogether) and fails to grapple with the country’s historic and ongoing efforts to eliminate racial discrimination. It also assumes a causal relationship between past discrimination and present disparities that is unsupported and often contradicted by the evidence. Yet another argument relies psychological research to claim that white Americans are animated by a subconscious racial animus. That research, however, has been debunked. Still another argument says that the criminal justice system is systemically racist because it has disparate effects across racial groups, but this argument looks only at the offenders’ side of the criminal justice system and fails to consider the effect of the criminal justice system on victims.

Proponents of the systemic racism theory often proffer “solutions” to it. This Article, and its companion, which will be published in the same Volume, examines those too and finds that many would, in fact, harm the very people they aim to help.

This Article is part one of two and focuses on the claim of systemic racism in criminal justice system generally. The second Article focuses on the War on Drugs in particular. The bottom line of both is this: the claim of systemic racism in the criminal justice system and in the War on Drugs is unjustified and should be rejected.