{"id":63,"date":"2017-10-30T05:32:18","date_gmt":"2017-10-30T05:32:18","guid":{"rendered":"http:\/\/nulr.ludist.com\/?p=63"},"modified":"2017-10-30T05:32:18","modified_gmt":"2017-10-30T05:32:18","slug":"a-fear-of-too-much-criminal-justice-social-science-evidence-and-the-tension-between-reform-and-transformation-in-the-criminal-justice-system","status":"publish","type":"post","link":"https:\/\/blog.northwesternlaw.review\/a-fear-of-too-much-criminal-justice-social-science-evidence-and-the-tension-between-reform-and-transformation-in-the-criminal-justice-system\/","title":{"rendered":"A Fear of Too Much (Criminal) Justice: Social Science Evidence and the Tension Between Reform and Transformation in the Criminal Justice System"},"content":{"rendered":"
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Professor Paul Butler starts the panel. (Photo Thomas H. Rousse)<\/figcaption><\/figure>\n

McCleskey v. Kemp<\/em><\/a>\u00a0(1987) was an example of \u201cgood-enough-for-black-people kind of justice.\u201d At least, that was how Professor Paul Butler (Georgetown)<\/a> characterized the seminal death penalty case under discussion at the recent Northwestern University Law Review<\/em> Symposium, A Fear of Too Much Justice?: Equal Protection and the Social Sciences 30 Years after <\/em>McCleskey v. Kemp.<\/a><\/p>\n

Professors Aya Gruber (Colorado)<\/a> and Angela Onwuachi-Willig (Berkeley)<\/a> joined Butler on a symposium panel, moderated by Professor Deborah Tuerkheimer (Northwestern)<\/a>, discussing the impact of McCleskey<\/em> specifically in the context of the criminal justice system.<\/p>\n

Other symposium panels noted the import of McCleskey<\/em> more broadly for equal protection doctrine and anti-discrimination efforts. However, the original case dealt with the death penalty and the constitutionality of Georgia\u2019s death penalty statute. The social science evidence at issue in the case was the Baldus study<\/a>, which demonstrated the racially disproportionate application of Georgia\u2019s statute penalty in capital cases. The Court refused to acknowledge this social science\u00a0 evidence of racial disparity and instead upheld the Georgia statute.<\/p>\n

This criminal justice panel discussion highlighted the tension between efforts to reform as opposed to transform the criminal justice system, noting the role of McCleskey<\/em> in shaping how social science can play in role in both kinds of efforts.<\/p>\n

Each panelist discussed a different aspect of the intersection of McCleskey<\/em>, social science evidence and the criminal justice system.<\/p>\n

Onwuachi-Willig presented social science research about the racially disparate disadvantages facing the formerly incarcerated in finding employment, asserting that this system is permanently designating the formerly incarcerated as an economic underclass.<\/p>\n

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Professor Gruber speaks. (Photo Thomas H. Rousse)<\/figcaption><\/figure>\n

Gruber focused on the idea that allowing racial disparity evidence would \u201cshatter the illusions\u201d of the justifications the state uses for punishment. She asserted that the McCleskey<\/em> court did not fear racial disparity evidence in the abstract, but instead feared racial disparity evidence that would dilute the state\u2019s authority and legitimacy to punish wrongdoers. Gruber instead called for a radical reorientation of the bases for the legitimacy of criminal punishment.<\/p>\n

Butler\u00a0argued that courts will not use social science evidence of racially discriminatory impact, because courts are part of a broader white supremacist institutional structure.\u00a0He argued that starting with Terry v. Ohio<\/a>\u00a0<\/em>(1968), the Court\u2019s criminal procedure jurisprudence has expanded police power against black men in an intentional racialist project by the Court. The true problem, according to Butler, is proving the racial motives of actors in the criminal justice system, including the Court.<\/p>\n

Butler characterized the Court\u2019s response to the evidence of racially disparate impact in McCleskey<\/em> as the Court being upfront about its white supremacy. If the Court recognized this evidence of the racial motive of criminal justice actors in capital cases, it would have to recognize it in other cases. This would undermine the whole criminal justice system, which the Court was unwilling to contemplate.<\/p>\n

Butler concluded that using social science to win equal protection claims, including in the criminal justice context, is a \u201cdoomed\u201d project: rights don\u2019t make a difference on the ground in how black men experience a white supremacist criminal justice system.<\/p>\n

So is that it? Is there anything left of the criminal justice system to salvage? Is there any role for social science evidence to play?<\/p>\n

The panel discussion highlighted several avenues for moving forward.<\/p>\n

Tuerkheimer noted two examples where social science evidence has proven an important factor in the criminal justice reform context: the Department of Justice\u2019s Ferguson Report and the Floyd v. New York<\/em><\/a>\u00a0(S.D.N.Y. 2013) litigation.<\/p>\n

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Professor Onwuachi-Willig at the symposium (photo Thomas H. Rousse)<\/figcaption><\/figure>\n

Onwuachi-Willig demonstrated that social science can help to document the dimensions of systemic racism. However, she noted that McCleskey<\/em>\u2019s continuing impact demonstrates how unwilling courts are to examine the kind of evidence that shows\u00a0structural racism, as opposed to evidence\u00a0showing the racist intent of a particular individual. As Onwuachi-Willig noted, any finding of structural racism on the part of criminal justice actors would demand a much broader remedy than the court would be willing to consider.<\/p>\n

Onwuachi-Willig turned instead to a different institutional actor, the legislature, as an opportunity for\u00a0concrete proposals for reform within the system. She suggested advocating for initiatives that would require the legislature to conduct racial impact statements. These could be applied only to pending legislation, or more broadly to existing legislation as well. Given the pivotal role of education in improving the job prospects of the formerly incarcerated, Pell Grants could be reinstated for the formerly incarcerated, requiring prisons to provide vocational job training or prison entrepreneurship programs. Onwuachi-Willig also\u00a0proposed\u00a0a\u00a0rule that would require companies relying on prison labor\u00a0to refrain from discriminating against applicants or employees on the basis of their criminal records.<\/p>\n

Another symposium participant and panelist, Professor Mario Barnes (UC-Irvine)<\/a>, suggested using social science on the enforcement side of the criminal justice system, to educate police departments\u00a0about the social science implications of their conduct, such as the impact of implicit bias in policing.<\/p>\n

Butler rejected this, emphasizing the need for transformation. \u201cWe need social science to help us understand how to transform this system and this law. We need social science to help with this transformation.\u201d He encouraged looking beyond reform: If the criminal justice system is supposed to be keeping us safe, can social science show us other ways of accomplishing that goal? Can social science show us alternatives to enable the transformation of the criminal justice system?<\/p>\n","protected":false},"excerpt":{"rendered":"

McCleskey v. Kemp\u00a0(1987) was an example of \u201cgood-enough-for-black-people kind of justice.\u201d At least, that was how Professor Paul Butler (Georgetown) characterized the seminal death penalty case under discussion at the recent Northwestern University Law Review Symposium, A Fear of Too Much Justice?: Equal Protection and the Social Sciences 30 Years after McCleskey v. Kemp. Professors Aya Gruber (Colorado) and Angela Onwuachi-Willig (Berkeley) joined Butler on a symposium panel, moderated by Professor Deborah Tuerkheimer (Northwestern), discussing the impact of McCleskey specifically…<\/p>\n

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