Critics of the criminal justice system have repeatedly charged it with systemic racism. It is a tenet of the “war” on the “War on Drugs,” it is a justification used by the so-called “progressive prosecutors” to reject the “Broken Windows” theory of law enforcement, and it is an article of faith of the “Defund the Police!” movement. Even President Joe Biden and his chief lieutenants leveled the same allegation early in this administration. Although the President has eschewed the belief that Americans are a racist people, others have not, proclaiming that virtually anyone who is white is a racist.
Yet, few people have defined what they mean by that term. This Article examines what it could mean and tests the truth of the systemic racism claim under each possible definition. None stands up to scrutiny. One argument is that the American citizens who run our many institutions are motivated by racial animus. But the evidence is that racial animus is no longer tolerated in society, and what is more, the criminal justice system strives to identify it when it does occur and to remedy it. Another argument says that the overtly racist beliefs and practices of the past have created lingering racist effects, but this argument cherry-picks historical facts (when it does not ignore them altogether) and fails to grapple with the country’s historic and ongoing efforts to eliminate racial discrimination. It also assumes a causal relationship between past discrimination and present disparities that is unsupported and often contradicted by the evidence. Yet another argument relies psychological research to claim that white Americans are animated by a subconscious racial animus. That research, however, has been debunked. Still another argument says that the criminal justice system is systemically racist because it has disparate effects across racial groups, but this argument looks only at the offenders’ side of the criminal justice system and fails to consider the effect of the criminal justice system on victims.
Proponents of the systemic racism theory often proffer “solutions” to it. This Article examines those too and finds that many would, in fact, harm the very people they aim to help. In the context of the “War on Drugs,” where so much of the rhetoric is focused, the authors examine these arguments and solutions. The bottom line is this: the claim of systemic racism in the criminal justice system is unjustified
Washington and Lee University School of Law Scholarly Commons
Field of study
Through the centuries, capital punishment and torture have been used by monarchs, authoritarian regimes, and judicial systems around the world. Although torture is now expressly outlawed by international law, capital punishment—questioned by Quakers in the seventeenth century and by the Italian philosopher Cesare Beccaria and many others in the following century—has been authorized over time by various legislative bodies, including in the United States. It was Beccaria’s book, Dei delitti e delle pene (1764), translated into French and then into English as An Essay on Crimes and Punishments (1767), that fueled the still-ongoing international movement to outlaw the death penalty. An edict of the Grand Duke of Tuscany, issued in 1786, made Tuscany the first jurisdiction in Western civilization to abolish capital punishment for all crimes. In 2021, decades after Justice Thurgood Marshall spoke out against “the gross injustices in the administration of capital punishment” and filed relentless dissents asserting that the death penalty is a per se violation of the U.S. Constitution’s Eighth and Fourteenth Amendments, the Commonwealth of Virginia became one of the latest jurisdictions to abolish capital punishment.
In the more than 250 years since the publication of Beccaria’s On Crimes and Punishments, much penal reform and social change has occurred, including with respect to interrogation, criminal justice, and punishment practices. Judicial torture, for example, was once explicitly authorized in civil law countries in continental Europe, but the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment now expressly prohibits both physical and mental forms of torture. In addition, Western penal systems have abandoned non-lethal corporal punishments—once a staple of centuries-old legal systems. The English common law and the Eighth Amendment, in fact, have long been understood to prohibit torture, though the concept of torture was understood much differently in the seventeenth and eighteenth centuries than it is in the twenty-first century. England’s monarchs, acting outside the common-law prohibition, previously made use of devices of torture such as the rack and the thumbscrew, and the U.S. Supreme Court—in the nineteenth century—explicitly approved the use of public shooting and electrocution as methods of execution even as it simultaneously held that the Eighth Amendment bars torturous punishments. European countries, including England, now explicitly forbid executions altogether through two protocols to the European Convention on Human Rights. Significantly, although the English “Bloody Code” once authorized death sentences for scores of offenses along with various non-lethal corporal punishments such as ear cropping and the pillory, bodily punishments such as branding and the stocks are no longer part of Western penal codes.
This Article contextualizes the modern death penalty debate and recalls the cogent arguments that Justice Thurgood Marshall made against capital punishment in his judicial opinions. It then shows how Justice Marshall’s vocal and pragmatic critique of capital punishment—one rooted in his own experience as a civil rights lawyer in capital cases and, later, as a justice—should be taken seriously and adopted by present-day U.S. Supreme Court justices. In laying out Justice Marshall’s persuasive arguments against capital punishment, the Article points out that mock (or simulated) executions and other threats of death or bodily harm in other contexts (e.g., with respect to custodial interrogations) are already treated as impermissible acts of psychological torture. With Justice Marshall regularly classifying the death penalty as a “cruel and unusual punishment” in his powerful, well-grounded dissents, this Article asserts that those dissents against capital punishment should become the law of the land in the twenty-first century. Not only is capital punishment cruel and unusual and a violation of equal protection of the laws as Justice Marshall contended, but it is clear that, in light of the modern definition of torture, statesponsored death threats must be classified under the rubric of torture—what the law considers the extreme form of cruelty. The absolute prohibition of torture is already considered to be a jus cogens norm of international law and that legal prohibition admits of no exceptions, with the death penalty bearing all the tell-tale indicia and characteristics of torture. In fact, an immutable characteristic of capital punishment is that it makes use of credible threats of death.
In short, the death penalty’s use—long known to intentionally inflict severe pain and suffering, and long administered in a highly arbitrary and discriminatory fashion in violation of fundamental human rights—must be outlawed and strictly forbidden to ensure that no one is subjected to the cruelty or torture of facing a capital prosecution, living under a sentence of death, or being put to death at the hands of the state. Justice Marshall—along with his colleague, Justice William Brennan—frequently wrote that the U.S. Constitution’s Eighth and Fourteenth Amendments should be interpreted to bar the death penalty’s use in all circumstances. In examining all of the evidence, much of which is irrefutable, this Article concludes that Justice Marshall was correct and that the death penalty’s use must be declared to be unconstitutional and a per se violation of the U.S. Constitution. Death sentences and executions violate human dignity, fundamental human rights, and the equal protection of the laws—concepts at the very heart of American and international law, and ones that Justices Marshall and Brennan regularly cited in their judicial opinions. In the twenty-first century, death sentences and executions must be stigmatized for what they truly are: acts of extreme cruelty amounting to torture
Around 1800, one of the most influential architectural concepts of the last 250 years emerged—that of built spaces as technical devices. Climate, morality, and comfort are the three main themes of this study, and each is vividly examined through synchronous comparison and with the help of examples. The book is aimed at readers interested in architecture, technology or the cultural history of building and living
'The Korean Research Institute Of International Commerce and Law'
Field of study
This thesis investigates the way in which the European Court of Human Rights conducts its reasoning process under the qualified rights in the context of imprisonment.
The structure of the qualified rights, in that they can be justifiably interfered with by reference to competing legitimate aims and what is ‘necessary in a democratic society’, poses issues relating to the interpretation of rights and the role of balancing in the adjudication of rights claims. The status of prisoners as rights-bearers whose access to those rights is legitimately curtailed adds further complexity to the interplay between qualified rights and competing aims. The Convention was designed with the rights of free persons in mind. The application, therefore, of the Convention rights to the specific context of imprisonment requires that those rights are interpreted in such a way as to have practical effect while recognising that, necessarily, imprisonment imposes some restrictions on the enjoyment of Convention rights. Further, that the restrictions placed on rights in this context are imposed, to some extent, for reasons of punishment.
This complex framework of rights protections and principles of punishment leaves a grey area in which the Court must decide whether Convention rights or competing aims, considered in light of the context of punishment, will take priority in a given case.
This thesis proposes a modified framework for the interpretation of the qualified rights which takes account of the meaning of ‘effective protection’ and priority to rights in the specific context of imprisonment. It analyses the caselaw of the European Court against this framework, and suggests that a more clearly structured approach to each stage of the Court’s reasoning process would provide prisoners with greater protection of their Convention rights. Further, it argues that the Court should more fully embrace rehabilitation as an aim of punishment within its caselaw
Fundamental Criminal Procedure explores American criminal procedure in a format ultimately destined for electronic publication. Because many students devote a great deal of their class time to taking notes, often at the expense of creative analysis, the text is intended to supply all of the necessary “black letter law” needed for mastery of the subject. The materials are, however, far more than a “study aid.” They emphasize where appropriate the crucial philosophical and policy questions and issues inherent in the subject. Periodic “Review Questions” require understanding application of academic material in a pragmatic context. “Legal Briefs” require the student to prepare to brief legislators on a wide variety of critical public policy questions inherent in criminal procedure. This text began and largely remains in outline format for ease of student use. As time permits, I am transitioning the text to a slightly more traditional form. Contrary to the Bluebook, I mix memorandum and formal writing citation style for purposes of easy reading.
Part One of the text deals with search and seizure, interrogations, eye-witness identification, and the right to counsel. Parts Two through Five deal with the remaining topics, the process by which a person is arrested, charged, adjudicated, and sanctioned and the aftermath. Accordingly, Fundamental Criminal Procedure includes sentencing, appeal, and collateral relief.
This abstract has been taken from the author\u27s preface
This report appears in: Albert, Richard and Landau, David and Faraguna, Pietro and Drugda, Šimon and De Carolis, Rocío, The 2021 Global Review of Constitutional Law (November 23, 2022). The 2021 Global Review of Constitutional Law. ISBN: 978-0-692-15916-3. Sponsored by the Constitutional Studies Program at the University of Texas at Austin. Published by EUT Edizioni Università di Trieste. ISBN: 978-88-5511-361-8 (EUT), U of Texas Law, Legal Studies Research Paper , Available at SSRN: https://ssrn.com/abstract=428503