Maximo Langer

After decades of a one-way ratchet towards more punitive criminal law policies that disproportionality punished African Americans, reform and transformative agendas have gained some momentum in the United States. Between 2010 and 2020 the combined state and federal imprisonment rate decreased 28%. After many years of having the largest incarceration per capita in the world, as of January 2023, the United States ranks fifth in the world, according to some sources. In 2007, the incarceration rate per 100,000 of Black people was 1,143, while in 2020 it was 662. This reduction of 42% was larger than the 35% reduction for all groups in the same period.

However, as Professor Gardner documents in his article, Rethinking Racial Equity in Criminal Procedure, deep racial disparities in the American criminal legal system remain. African Americans continue to be killed by the police, stopped, arrested, jailed, and incarcerated at higher rates than white Americans. In his piece, Gardner critically and lucidly discusses the two main ongoing efforts to advance racial equity within criminal procedures: the reform platform and the abolition platform.

According to Gardner, the reform platform—which he locates not only in scholarship, including procedural justice literature, but also in the views of most regular people—has aimed at the elimination of racial bias by police officers, prosecutors, and judges, to advance racial equity within the criminal process. Relying on the work by Paul Butler—a distinguished penal abolitionist—he questions this agenda, first, in terms of its breadth, by arguing that a more robust concept of racial equity in criminal procedure should also include racially proportionate penal outputs. In other words, for Gardner, racial equity requires not only that police officers, prosecutors, and judges do not consciously or unconsciously discriminate against African Americans, but also that African Americans are stopped, arrested, jailed, and incarcerated at the same rates as white Americans. Penal outcomes should be considered because disproportionate outcomes are in themselves a discrete harm for African Americans, since incarceration has a deep negative impact on the imprisoned and their social networks and it weakens African Americans as a group in their participation in the work force, their reception of public welfare and education, and their participation in the democratic polity.

As for the penal abolitionist platform, Gardner argues that its unique value lies on its descriptive and moral claims. Mass incarceration is indeed a social problem that has a racial dimension, and criminal law theory should not be blind to social structure. For Gardner, penal abolitionism rightly argues that there is a collective moral failure in the racially disparate outcomes of the criminal legal system, and the public debate about it must indeed go beyond the questions of violent versus nonviolent crime or official discretion in criminal procedure. This situation creates a credibility gap for the criminal justice reform project.

However, Gardner does not adopt abolitionism as a normative position because he argues it does not account for the African American interest of having state protection against private violence, and for the well-documented fact over several decades that a majority of African Americans want more rather than fewer police in their neighborhoods despite their negative views on the police. Instead, he aligns with the work of Tommie Shelby and criminal law minimalists.

To rescue the criminal justice reform project and give a normatively appealing content to African American procedural interest, Gardner argues that this project should embrace a racial proportionality principle under which there should not be a Black-white gap in penal outcomes.

However, Gardner maintains that even this newly defined procedural interest is in tension with two other African American penal interests: the security interest—i.e., the group’s interest in state protection of physical safety from private violence; and the democratic interest—i.e., its interest in exercising collective influence over penal institutions and in bureaucratic representation within these institutions. He says these three interests were generally aligned during Reconstruction, but “the alignment broke down as the criminal law threat of primary concern to African Americans shifted over the course of the 20^th century from white racial violence to street violence.” According to Gardner, the breach between the penal reform project and the penal abolition project or between scholars like Randall Kennedy—whose work has emphasized the security interest through his underenforcement thesis—and Paul Butler—whose work has emphasized the need for racially proportionate penal outputs—would originate in that each side ultimately fails to properly account for each of these African American penal interests and the tension among them. Through a historical narrative supported by multiple scholarly accounts and empirical studies, Gardner illustrates the early alignment and later tensions between these three interests from the creation of NAACP up to the current mayoral administrations of Eric Adams in New York City and London Breed in San Francisco.

Gardner argues that to address this tension between these three African American penal interests and advance a more robust conception of the procedural interest that includes the need for proportionate penal outcomes, criminal justice reform must include social welfarist policies in its agenda given that structural racial inequality has been one of the drivers of racially disproportionate penal outputs. This presents a challenge for criminal-legal scholars since welfarist policies are typically not within their realm of expertise. But it is the only way to have a credible strategy to close the racial gap in penal outcomes.

This is a powerful article. Its analytical distinction between the three African American penal interests and its thicker conception of the procedural interests is very helpful to locate social and political agendas and scholarly projects, and to dissect possible strengths, weaknesses, and tensions within and between them. It also proposes a way forward to address these tensions and advance the fulfillment of our long-standing pending social duty of achieving racial equity in the criminal legal system.