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Implicit Bias's Failure, Samuel Bagenstos

Articles

The 2016 presidential election was a coming-out party of sorts for the concept of implicit bias-and not necessarily in a good way. In answering a question about race relations and the police during the vice-presidential debate, Mike Pence introduced the topic. Offering his explanation for why the Fraternal Order of Police had endorsed the Trump-Pence ticket, Pence said:

Segregation Now, Segregation Tomorrow, Segregation Forever?, Elizabeth K. Julian

Minnesota Journal of Law & Inequality

No abstract provided.

Accelerated Civil Rights Settlements In The Shadow Of Section 1983, Katherine A. Macfarlane

Utah Law Review

The families of Eric Garner, Laquan McDonald, Freddie Gray, and Walter Scott have obtained multimillion dollar settlements from the cities in which their family members lost their lives. This Article identifies and labels these settlements as a legal response unique to high-profile policeinvolved deaths: accelerated civil rights settlement. It defines accelerated civil rights settlement as a resolution strategy that uses the threat of 42 U.S.C. Section 1983 litigation rather than litigation itself to compensate police-involved shooting victims’ family members. This Article explains how accelerated civil rights settlement involves no complaint or case—nothing is filed. Also, the goal of accelerated civil …

Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger

Northwestern University Law Review

The litigation campaign that led to McCleskey v. Kemp did not begin as an anti-death-penalty effort. It grew in soil long washed in the blood of African-Americans, lynched or executed following rude semblances of trials and hasty appeals, which had prompted the NAACP from its very founding to demand “simple justice” in individual criminal cases. When the Warren Court signaled, in the early 1960s, that it might be open to reflection on broader patterns of racial discrimination in capital sentencing, the NAACP Legal Defense & Educational Fund, Inc. (LDF) began to gather empirical evidence and craft appropriate constitutional responses. As …

Blind Justice: Why The Court Refused To Accept Statistical Evidence Of Discriminatory Purpose In Mccleskey V. Kemp—And Some Pathways For Change, Reva B. Siegel

Northwestern University Law Review

In McCleskey v. Kemp, the Supreme Court refused to accept statistical evidence of race discrimination in an equal protection challenge to the death penalty. This lecture, on the decision’s thirtieth anniversary, locates McCleskey in cases of the Burger and Rehnquist Courts that restrict proof of discriminatory purpose in terms that make it exceedingly difficult for minority plaintiffs successfully to assert equal protection claims.

The lecture’s aims are both critical and constructive. The historical reading I offer shows that portions of the opinion justify restrictions on evidence to protect prosecutorial discretion, while others limit proof of discrimination in ways that …

Equal Protection And The Social Sciences Thirty Years After Mccleskey V. Kemp, Destiny Peery, Osagie K. Obasogie

Northwestern University Law Review

No abstract provided.

What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias, Mario L. Barnes, Erwin Chemerinsky

Northwestern University Law Review

This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the death …

Equal Protection And White Supremacy, Paul Butler

Northwestern University Law Review

The project of using social science to help win equal protection claims is doomed to fail if its premise is that the Supreme Court post-McCleskey just needs more or better evidence of racial discrimination. Everyone—including the Justices of the Court—already knows that racial discrimination is endemic in the criminal justice system. Social science does help us to understand the role of white supremacy in U.S. police and punishment practices. Social science also can help us understand how to move people to resist, and can inform our imagination of the transformation needed for equal justice under the law.

Combating Discrimination Against The Formerly Incarcerated In The Labor Market, Ifeoma Ajunwa, Angela Onwuachi-Willig

Northwestern University Law Review

Both discrimination by private employers and governmental restrictions in the form of statutes that prohibit professional licensing serve to exclude the formerly incarcerated from much of the labor market. This Essay explores and analyzes potential legislative and contractual means for removing these barriers to labor market participation by the formerly incarcerated. First, as a means of addressing discrimination by the state, Part I of this Essay explores the ways in which the adoption of racial impact statements—which mandate that legislators consider statistical analyses of the potential impact their proposed legislation may have on racial and ethnic groups prior to enacting …

"Playing It Safe" With Empirical Evidence: Selective Use Of Social Science In Supreme Court Cases About Racial Justice And Marriage Equality, Russell K. Robinson, David M. Frost

Northwestern University Law Review

This Essay seeks to draw connections between race, sexual orientation, and social science in Supreme Court litigation. In some respects, advocates for racial minorities and sexual minorities face divergent trajectories. Among those asserting civil rights claims, LGBT rights claimants have been uniquely successful at the Court ever since Romer v. Evans in the mid-1990s. During this period, advocates for racial minorities have fought to preserve earlier victories in cases such as Regents of the University of California v. Bakke and have failed to overturn precedents that strictly limit equal protection possibilities, such as McCleskey v. Kemp. Nonetheless, we argue …

The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through An Empirical Assessment Of Graham V. Connor, Osagie K. Obasogie, Zachary Newman

Northwestern University Law Review

Graham v. Connor established the modern constitutional landscape for police excessive force claims. The Supreme Court not only refined an objective reasonableness test to describe the constitutional standard, but also held that the Fourth Amendment is the sole avenue for courts to adjudicate claims that police violated a person’s constitutional rights in using force. In this Essay, we ask: What impact did this decision have on the nature of police excessive force claims in federal courts? To address this, we engaged in a qualitative examination of 500 federal cases (250 in the twenty-six years before Graham and 250 in the …

Eyes Wide Open: What Social Science Can Tell Us About The Supreme Court's Use Of Social Science, Jonathan P. Feingold, Evelyn R. Carter

Northwestern University Law Review

The Northwestern University Law Review’s 2017 Symposium asked whether McCleskey v. Kemp closed the door on social science’s ability to meaningfully contribute to equal protection deliberations. This inquiry is understandable; McCleskey is widely understood to have rendered statistical racial disparities doctrinally irrelevant in the equal protection context. We suggest, however, that this account overstates McCleskey and its doctrinal impact. Roughly fifteen years after McCleskey, Chief Justice William Rehnquist—himself part of the McCleskey majority—invoked admissions data to support his conclusion that the University of Michigan Law School unconstitutionally discriminated against white applicants.

Chief Justice Rehnquist’s disparate treatment of statistical …

Diversity Entitlement: Does Diversity-Benefits Ideology Undermine Inclusion?, Kyneshawau Hurd, Victoria C. Plaut

Northwestern University Law Review

Ideologies are most successful (or most dangerous) when they become common-sense—when they become widely accepted, taken-for-granted truths—because these truths subsequently provide implicit guidelines and expectations about what is moral, legitimate, and necessary in our society. In Regents of University of California v. Bakke, the Court, without a majority opinion, considered and dismissed all but one of several “common-sense” rationales for affirmative action in admissions. While eschewing rationales that focused on addressing discrimination and underrepresentation, the Court found that allowing all students to obtain the educational benefits that flow from diversity was a compelling rationale—essential, even, for a quality education. …

Equal Protection Under The Carceral State, Aya Gruber

Northwestern University Law Review

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety …

Martin Luther King Jr. And Pretext Stops (And Arrests): Reflections On How Far We Have Not Come Fifty Years Later, Tracey Maclin, Maria Savarese

Faculty Scholarship

By January, 1956, the Montgomery Bus boycott was in full-swing. Black citizens in Montgomery, Alabama were refusing to ride the city’s private buses to protest racially segregated seating. On the afternoon of January 26, 1956, twenty-seven-year-old Martin Luther King, Jr. had finished his day of work at the Dexter Avenue Baptist Church in Montgomery. On his drive home, King stopped his vehicle to offer a ride to a group of bus boycotters standing at a downtown car-pool location. After the boycotters entered King’s car, two motorcycle policemen pulled-in behind King’s vehicle. While everyone in King’s car tried to remain calm, …

Increasing Police Accountability And Improving Use Of Force Policies In The United States, Leica Kwong

Themis: Research Journal of Justice Studies and Forensic Science

Communities, and their respective police departments, have significant impacts on the social and legal matters they are involved with, making it crucial for both parties to strive to maintain strong, collaborative relationships. Positive interactions between police and the public are therefore extremely vital and beneficial to all involved. Police officers should be held accountable for their transgressions and subject to transparency for their on-duty actions through legal records. Several issues lie in the policies and procedures which requires more attention in its analysis. Changing policies and procedure in the United States regarding police use of force to remedy inconsistencies calls …

Mass Incarceration: Slavery Renamed, Samantha Pereira

Themis: Research Journal of Justice Studies and Forensic Science

This paper aims to analyze the connections between slavery and mass incarceration. It begins by giving background information regarding the topic and setting the framework to argue that slavery was never abolished, but was instead continued using mass incarceration. The paper then goes on to further explain this concept by examining the constitutional and judicial laws in the United States, slave plantations and prisons, with regard to geographical, architectural, and operational design, and finally, the role of society in both systems. The framework for continuing slavery was set with the passing of the 13th Amendment and has since been expanded …

Medical Apartheid: A Book Review, Carmen Kennedy

Themis: Research Journal of Justice Studies and Forensic Science

No abstract provided.

The Concept Of “Unusual Punishments” In Anglo-American Law: The Death Penalty As Arbitrary, Discriminatory, And Cruel And Unusual, John D. Bessler

Northwestern Journal of Law & Social Policy

The Eighth Amendment of the U.S. Constitution, like the English Bill of Rights before it, safeguards against the infliction of “cruel and unusual punishments.” To better understand the meaning of that provision, this Article explores the concept of “unusual punishments” and its opposite, “usual punishments.” In particular, this Article traces the use of the “usual” and “unusual” punishments terminology in Anglo-American sources to shed new light on the Eighth Amendment’s Cruel and Unusual Punishments Clause. The Article surveys historical references to “usual” and “unusual” punishments in early English and American texts, then analyzes the development of American constitutional law as …

The Invisible Victims Of The School-To-Prison Pipeline: Understanding Black Girls, School Push-Out, And The Impact Of The Every Student Succeeds Act, Bianca A. White

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Pena-Rodriguez V. Colorado: Elevating A Constitutional Exception Above The Tanner Framework, Caroline Covington

Maryland Law Review

No abstract provided.

The School To Deportation Pipeline, Laila L. Hlass

Georgia State University Law Review

The United States immigration regime has a long and sordid history of explicit racism, including limiting citizenship to free whites, excluding Chinese immigrants, deporting massive numbers of Mexican immigrants and U.S. citizens of Mexican ancestry, and implementing a national quotas system preferencing Western Europeans. More subtle bias has seeped into the system through the convergence of the criminal and immigration law regimes.

Immigration enforcement has seen a rise in mass immigrant detention and deportation, bolstered by provocative language casting immigrants as undeserving undesirables: criminals, gang members, and terrorists. Immigrant children, particularly black and Latino boys, are increasingly finding themselves in …

Dead Canaries In The Coal Mines: The Symbolic Assailant Revisited, Jeannine Bell

Georgia State University Law Review

The well-publicized deaths of several African-Americans—Tamir Rice, Philando Castile, and Alton Sterling among others—at the hands of police stem from tragic interactions predicated upon well-understood practices analyzed by police scholars since the 1950s. The symbolic assailant, a construct created by police scholar Jerome Skolnick in the mid-1960s to identify persons whose behavior and characteristics the police view as threatening, is especially relevant to contemporary policing. This Article explores the societal roots of the creation of a Black symbolic assailant in contemporary American policing.

The construction of African-American men as symbolic assailants is one of the most important factors characterizing police …

Trapped In The Shackles Of America's Criminal Justice System, Shristi Devu

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Race, Speech, And Sports, Matthew J. Parlow

University of Richmond Law Review

Race, sports, and free speech rights intersected in a very controversial and public way during the 2016 and 2017 National Football League (“NFL”) seasons. On August 26, 2016, Colin Kaepernick spurred a national debate when he refused to stand during the playing of the national anthem before the NFL preseason game between the Green Bay Packers and the San Francisco 49ers, Kaepernick’s team at the time.

Multiracial Malaise: Multiracial As A Legal Racial Category, Taunya Lovell Banks

Fordham Law Review

The focus of this Article is the underlying assumption of the Brookings Institution report that multiracial individuals constitute a separate racial category. My discussion of legal racial categories focuses only ongovernment “racial” definitions. Multiracial individuals should enjoy thefreedom to self-identify as they wish—and, like others, be afforded theprotections of antidiscrimination law.The question is whether a separate legal racial category is needed to provide that protection. Race in this country has been “crafted from the point of view of [white] race protection” protecting the interests of white Americans from usurpation by non whites and, unless the creation of a separate multiracial …

The Predictors Of Juvenile Recidivism: Testimonies Of Adult Students 18 Years And Older Exiting From Alternative Education, La Toshia Palmer

Dissertations

Purpose: The purpose of this descriptive, qualitative study was to identify and describe the importance of the predictors of juvenile recidivism and the effectiveness of efforts to prevent/avoid juvenile recidivism as perceived by previously detained, arrested, convicted, and/or incarcerated adult students 18 years of age and older exiting from alternative education in Northern California. A second purpose was to explore the types of support provided by alternative schools and the perceived importance of the support to avoid recidivism according to adult students 18 years of age and older exiting from alternative education.

Methodology: This qualitative, descriptive research design identified …

A Measure Of Our Justice System: A Look At Maine's Indigent Criminal Defense Delivery System, Ronald W. Schneider Jr.

Maine Law Review

This Comment will examine briefly the history of the right to counsel and the accompanying right to the effective assistance of counsel in this country. At the time the Sixth Amendment was included in the Bill of Rights, the United States rejected the English practice of denying the right to counsel to those accused of felonies while granting the right to those charged with misdemeanors. People in the United States have enjoyed the right to counsel in all criminal cases, felonies and misdemeanors, since 1791. Yet in a very real and dangerous sense, the courts have reversed the course of …

The Prison To Homelessness Pipeline: Criminal Record Checks, Race, And Disparate Impact, Valerie Schneider

Indiana Law Journal

Study after study has shown that securing housing upon release from prison is critical to reducing the likelihood of recidivism,1 yet those with criminal records— a population that disproportionately consists of racial minorities—are routinely denied access to housing, even if their offense was minor and was shown to have no bearing on whether the applicant would be likely to be a successful renter. In April of 2016, the Office of General Counsel for the United States Department of Housing and Urban Development (HUD) issued much anticipated guidance dealing directly with the racially disparate impact of barring those with criminal records …

Criminal Justice And The Mattering Of Lives, Deborah Tuerkheimer

Michigan Law Review

A review of James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America.