Article by Gary Peller
Criminal law is an obvious topic for a critical analysis of racial power. As the recent beating of Rodney King by members of the Los Angeles Police Department demonstrates, racial power is often most dramatically exercised, and most easily recognized, in the enforcement of criminal laws, at the point of contact between police and people of color. And, in contrast to the more subtle ways that racism sometimes manifests itself in economic or cultural spheres, the power relations between police and African-American communities have historically been quite overt. No fancy theoretical conceptualization is necessary to explain how race figures in police brutality, in prosecutorial decisions, in jury selection, in conviction rates, and in the incarceration and capital sentencing of people of color in America.
The very ease with which the racial bias of the criminal justice system can be described, however, has perhaps fostered a lack of serious critical consideration of how criminal law interacts with American racism. While sophisticated and subtle analyses exist concerning the racial ideologies of discrimination law, voting and districting regulation, hate speech, and cultural production, discussion about race and criminal law has remained within the confines of conventional and arguably conservative scholarly mindset.
Commentary about race and criminal law begins with two underlying assumptions, which I explore in the remainder of this Article. The first assumption is that significant racial issues all involve questions of criminal procedure rather than substantive criminal law. While there are studies which examine the influence of race on virtually every aspect of criminal procedure—ranging from police contacts on the street to prosecutorial decisions to the imposition of punishment at sentencing—there is only limited race-oriented literature about the social assumptions and normative implications of the substantive criminal law.
As I suggest in this Article, this procedural focus is not unique to commentary about race and criminal law. Instead, it reflects a more general scholarly framework that has influenced the entire field of criminal law research. The focus on criminal procedure is one consequence of the process-oriented jurisprudence's hold on American legal thought since the 1950s. The distinction between process and substance underlies the Warren Court's strategy to reform criminal justice through the constitutionalization of procedure rather than substance. Proceduralism has set the scholarly agenda ever since. Thus, in the first part of this Article I explore the historical underpinning of the process-substance distinction and discuss its ideological implications for contemporary thinking about criminal law reform.
The second assumption that has shaped race and criminal law commentary has to do not with the history of criminal law ideology, but rather with the particular way in which racial power has been understood and identified. Commentary about race and criminal law has consistently assumed a model of racism within which racial power is understood in terms of bias and discrimination. The objective of this scholarly genre has been to demonstrate that the criminal process is biased against people of color because they are treated differently from whites. The implication has been that, but for this disparate treatment based on skin color, racism would not be an issue in criminal law at all. This second assumption embodies an ideology about racial power that I call “integrationism.” Integrationism is premised on the belief that race is an arbitrary attribute that ultimately should be ignored in social relations, and that racism consists of making this arbitrary fact count for something.
Like the process-substance distinction, the integrationist view of racial power was embraced by the American legal mainstream in the 1950s and 1960s and was embodied in the rhetoric of race reform deployed in the well-known Warren Court decisions of the period. But as the recent widespread re-discovery of the alternative analysis of race presented by Malcolm X and other Black Nationalists makes clear, bias and discrimination is arguably a narrow and limited lens through which to view racial power and thereby understand its significance. In the second part of this Article, I explore how the integrationist vision of racial power has hampered an understanding of the racial significance of American criminal law.
Taken together, the process-substance filter for analyzing criminal law and the integrationist filter for analyzing racial power severely limit the range of critical discourse about the interplay of race and criminal law. As I argue in the conclusion of this Article, these two ideas work together so that the only imaginable reform strategy seems like the one pursued by the Warren Court in the 1960s. Although some changes in criminal procedure clearly have had important social consequences, these ideological lenses have prevented commentators from considering fundamental ideological issues raised by the substantive criminal law itself. The irony of this scholarly situation is that, while a historical and decontextualized image of racial justice reflected in Herbert Wechsler's famous “Neutral Principles” article has been widely criticized, Wechsler's attempt to embody his vision in criminal law through the widely influential Model Penal Code, for which he served as Reporter, has received virtually no critical commentary.
About the Author
Gary Peller. Professor of Law at Georgetown University Law Center and Co-Secretary of the Conference on Critical Legal Studies.
Citation
67 Tul. L. Rev. 2231 (1993)