This paper considers three possible ways of understanding the claim that the American criminal justice system is racist: individualist, “patterns”-based, and ideology-based theories of institutional racism. It rejects an individualist explanation of institutional racism because such an explanation fails to explain the widespread prevalence of anti-black racism in this system or indeed in the United States. It considers a “patterns” account of institutional racism, where consistent patterns of disparate racial effect mimic the structure of intentional projects of racial subjugation like (...) slavery or Jim Crow. While a “patterns” account helpfully directs attention to the effects of policies and practices that make up an institution, it does not fully explain the deep roots of anti-blackness in the criminal justice system in the United States. The paper concludes by defending an ideology-based theory of institutional racism for understanding the criminal justice system because the stereotype of the black criminal has a mutually reinforcing relationship with the patterns of disparate outcome for black people in the criminal justice system. This relationship creates a looping effect where the stereotype of the black criminal fuels the disproportionate involvement of black people in the criminal justice system, and the disproportionate representation of black people with felony records, in prisons, brutalized in police encounters, and so on reinforces the idea that black people are especially prone to criminality. Ideological approaches to racism that integrate attention to the patterns of disparate effect best explain what it means to say that the criminal justice system is racist. (shrink)

Since 1900, debates about the justification of punishment have also been debates about the cause of crime. In the early twentieth century, the rehabilitative ideal of punishment viewed mental illness and dysfunction in individuals as the cause of crime. Starting in the 1970s, retributivism identified the immorality of human agents as the source of crime, which dovetailed well with the “tough-on-crime” political milieu of the 1980s and 1990s that produced mass incarceration. After surveying these historical trends, Wirts argues for a (...) social critical view that crime is best understood as a product of an unjust society, not faulty human beings. This view should take the lessons learned by the critiques of rehabilitation, however, and resist the tendency to reduce human beings to recipients of social services. (shrink)

In their article, “Immigrant legalization: A Dilemma Between Justice and The Rule of Law,” Sarah Song and Irene Bloemraad address rule of law objections to policies that would regularize the status of undocumented immigrants in the United States. On their view, justice requires that liberal democratic states (i.e., states that are committed to individual liberty and universal equality) provide pathways for undocumented immigrants to regularize their status. We do not disagree with Song and Bloemraad’s account: rule of law and regularization (...) policies are not inconsistent, and in fact regularization supports rule of law, when properly understood. Our view is that there needs to be a deeper investigation into the motivations of “rule of law” objections considered in Song and Bloemraad’s account. We argue that the real purpose of these objections is not necessarily to serve as an alternative to the justice-based claims of undocumented immigrants, but as a way to undermine them. On our account, these rule of law objections accomplish this undermining task through the mechanisms of dog whistling, discrediting and distorting, and ostracizing. (shrink)