Short of the Mountaintop: Race Neutrality, Criminal Law, and the Jericho Road Ahead

Abstract

One of the greatest impediments to achieving racial equity in criminal law is the myth that we have already achieved racial equity. This essay, written for the symposium commemorating the 50th anniversary of Dr. Martin Luther King Jr.’s death in Memphis, starts with the problem of that falsehood, which has been trumpeted by political leaders including an Attorney General of the United States. It then examines the reality on the ground: continuing and unjustified racial disparities. Finally, it addresses possible short-term measures to address these disparities while recognizing that given the broad discretion given to hundreds of thousands of decision-makers within thousands of American criminal justice systems, the only true cure for racial inequity in criminal law will be the difficult but long-sought elimination of bias in the greater society.

Keywords: race and law, racial equality, criminal law, racial equity, law and race, Martin Luther King, criminal justice