Civil Rights Article 121 Harv. L. Rev. 1969

Unequal Justice


Inequality is a core feature of American criminal justice, but its causes remain obscure. Official racism has declined even as the black share of the prison population has risen. The generation that saw the rise of enormous, racially skewed punishment for drug crime followed the generation that saw the rise of civil rights for black Americans and racially integrated police forces. What explains these trends? One answer – the decline of local democracy – has received too little attention in the growing literature on this subject. A century ago outside the South, high-crime city neighborhoods were largely self-governing; residents of those neighborhoods decided how much criminal punishment to impose, and on whom. Those locally democratic justice systems were both remarkably effective and surprisingly egalitarian. During the latter half of the twentieth century, local democratic control over criminal justice unraveled. Residents of high-crime cities grew less powerful; suburban voters, legislators, and appellate judges grew more so. Prison populations fell sharply, then rose massively. The effects of both the fall of criminal punishment and its subsequent rise were disproportionately felt in urban black neighborhoods. The justice system grew less equal, and less just.

Parts I and II of the Article explore these trends. Part III turns to the future, and asks what steps might be taken to reverse them. I suggest three changes: better-funded local police forces, more trials to locally selected juries, and more vaguely defined crimes (to give those juries opportunities to exercise judgment). Those changes would make urban criminal justice more democratic, more lenient – and more egalitarian.