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Freedom Center Journal

Abstract

Ferguson has come to symbolize a widespread sense that there is a crisis in American criminal justice. This Article describes various articulations of what the problems are and poses the question of whether law is capable of fixing these problems. I consider the question theoretically by looking at claims that critical race theorists have made about law and race. Using Supreme Court cases as examples, I demonstrate how some of the “problems” described in the U.S. Justice Department’s Ferguson report, like police violence and widespread arrests of African-Americans for petty offenses, are not only legal, but integral features of policing and punishment in the United States. They are how the system is supposed to work. The conservatives on the Court are aware, and intend, that the expansive powers they grant the police will be exercised primarily against African-American men. I then consider the question of reform using empirical analysis of one of the most popular legal remedies: “pattern or practice” investigations by the U.S. Department of Justice. Some reforms are stopgap measures that provide limited help but fail to bring about the transformation demanded by the strongest articulations of the crisis. In fact, in some ways, reform efforts impede transformation. I conclude by imagining the wholesale transformation necessary to fix the kinds of problems articulated by the Movement for Black Lives.

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