"Race-Based Remedies in Criminal Law"

The title of this post is the title of this notable new article authored by Ion Meyn now available via SSRN. Here is its abstract:

This Article evaluates the constitutional feasibility of using race-based remedies to address racial disparities in the criminal system.  Compared to white communities, communities of color are over-policed and over-incarcerated. Criminal system stakeholders recognize these conditions undermine perceptions of legitimacy critical to ensuring public safety.  As jurisdictions assiduously attempt race-neutral fixes, they also acknowledge the shortcomings of such interventions.  Nevertheless, jurisdictions dismiss the feasibility of deploying more effective race-conscious strategies due to the shadow of a constitutional challenge.  The apprehension is understandable.  Debates around affirmative action in higher education and government contracting reveal fierce hostility toward race-based remedies.

This Article, however, contends that within the criminal system, strict scrutiny requirements do not pose an insurmountable obstacle to race-based policies.  There is promising decisional law surrounding the use of race-conscious efforts to address criminal-system challenges.  Drawing on this favorable doctrine, the Article tests the constitutionality of race-based remedies in one of the most dynamic areas in the criminal system: the use of risk assessment tools, which jurisdictions are increasingly relying upon to make decisions, even as these tools reproduce racial harms.  To enrich the analysis, the Article presents a case study of a jurisdiction struggling to mitigate racial harms perpetuated by its pre-trial risk assessment tool.

The Article finds reasons to be optimistic about how race-based remedies might fare within the criminal-system context, where courts are predisposed to granting broad discretion to the stated needs of criminal law stakeholders.  Within this unique context, the Article provides a template for a race-based approach that potentially survives an Equal Protection challenge.