A Project by HLS Students for Inclusion!


“In many respects, African Americans are doing no better than they were when Martin Luther King, Jr. was assassinated and uprisings swept inner cities across America.  Nearly a quarter of African Americans live below the poverty line today, approximately the same percentage as in 1968.  The black child poverty rate is actually higher now than it was then. Unemployment rates in black communities rival those in Third World countries. And that’s with affirmative action!” – Michelle Alexander[1]


In the New Jim Crow, Michelle Alexander articulates a theory of systematic, institutional racism in which the criminal justice system creates a new racial caste through racially biased enforcement and sentencing that disproportionately punishes poor communities of color.[2]  As you will hopefully learn to see throughout the course, this racial tension animates much of the social context in the background of the court opinions.  No one seriously disputes that the effects of the criminal justice are racially biased.  However, some law professors attribute that bias to a background of deep social inequality while others dismiss this social background as playing an insignificant role.  There was inequality.  Then there was not.  More or less, the problems that exist in poor communities of color are problems of their own making.

Of course, this abstraction is not an accurate portrayal of history or our present-day circumstances.  There is racial inequality in nearly every aspect of social, political and economic institutions, so one wonders when equality actually began in that ahistorical version of reality.  As Catharine A. MacKinnon said of the social construction of reality, “Did their mind invent reality or discover it?”[3] As far as facts go, the reality is that whites commit more drug crimes than Blacks, but Blacks are more than five times more likely to be arrested on drug-related charges; studies consistently show that Blacks receive harsher penalties as compared to their white counterparts, including the death penalty.[4]

Although the phenomenon of mass incarceration is one of the greatest problems U.S. citizens face in the twenty-first century, Harvard Law School as an institution is seemingly indifferent.  While the issue of police brutality was crystallized into the national consciousness as a practice of racial inequality in 2014 (thanks to social media), Criminal Law professors at HLS continue to neglect the issue in their course syllabi.  Maybe they have excuses for that, too.  For example, maybe there are no relevant cases in their particular casebook.  (Whatever happened to supplemental reading?).  Nevertheless, as law students looking to participate in a movement for meaningful social change, we must face the serious inequalities that plague the criminal justice system, not pretend they do not exist.


Suggested Reading:

Michelle Alexander, The New Jim Crow: Mass Incarceration In The Age Of Colorblindness (2010).

Ryan S. King & Marc Mauer, The War on Marijuana: The Transformation of the War on Drugs, 3.6 Harm Reduction J., 1 (2006). 

Derecka Purnell, A New Civil Rights Movement Is Already Growing at The Roots, The New York Times (Feb. 8, 2016), http://www.nytimes.com/roomfordebate/2015/01/19/the-fight-for-civil-rights-long-after-selma/a-new-civlil-rights-movement-is-already-growing-at-the-grass-roots.

Tommie Shelby, Justice, the Ghetto Poor, 6 L. & Ethics Hum. Rts., 70  (2012).


[1] Michelle Alexander, The War on Drugs and the New Jim Crows, 17.1 Race Poverty & Env’t  75, 75-77 (2010).

[2] See Michelle Alexander, The New Jim Crow: Mass Incarceration In The Age Of Colorblindness (2010). 

[3] See Catharine A. MacKinnon, Toward a Feminist Theory of the State,  122 (1989).

[4] See Alexander supra note 37.