Race and Criminal Justice

Those who write and enforce criminal laws in America have always used them in part to discriminate and oppress black people, indigenous people, women, those with Chinese ancestry, the poor, LGTBQ persons, and other groups--expressly as written in statutes or enforcement policies or implicitly. In the colonial era, states provided more serious punishments for free blacks by statute, and for enslaved persons. After the civil war, many sourthen states wrote criminal laws to target what they perceived to be crimes that would be more likely committed by newly freed black persons. And even existing laws such as rape were enforced unequally. 

In recent years, drug laws have fallen disproportionately on black people and often on other minorities even though white people use and possess drugs at the same rate. Many of you have likely read Michelle Alexander's The New Jim Crow, which sets forth not only the discriminatory enforcement of the criminal law, but also the deeply pervasive and pernicious effect incarceration has on individuals and communities. Others have shown racial discrimination in the setting of bail or sentencing after trial, including imposition of the death penalty. 

The data are depressing and in some ways overwhelming. Instead of tackling the problem across the system, we will focus on the law of trespass as a single example and case study of how a neutral law, or neutral-appearing law, can become a tool of oppression and discrimination. We have already hinted at this in the Luke case. 

As you read the materials below, note how a crime like trespass empowers private property holders to leverage the public police power to further their own personal biases or racism. Trespass law itself appears neutral, and the police are simply enforcing the law, and yet can the government claim that it is not participating in the racist use of the law by the private citizen? These are the issues raised by the Alexis case and the Peterson case. These cases also raise issues similar to the earlier, constitutional cases: criminalizing mere presence, albeit in a business open to the public rather than city streets. 

Finally, the Ligon case raises an even more direct use of trespass laws by the government--also raising questions of discrimination by race and against the poor.

On the other hand, criminal trespass laws perform important functions, including protecting victims of domestic violence from their abusers. Consider other examples of ways in which criminal trespass laws perform a useful or critical function, including for the poor who cannot afford their own security systems. In other words, how do we balance these interests?