For those struggling with criminal justice reform today, the long history of failed efforts to close the gap between the promise of legal equality and the practice of our police forces and prison systems can seem mysterious and frustrating. Progress has been made in establishing stronger rights for individuals in the investigatory and sanctioning stages of the criminal process; yet, the patterns of over-incarceration and police violence, which are especially concentrated on people of color, have actually gotten worse during the same period. Seen in terms of its deeper history however, the carceral state is no longer puzzling: it has always governed more by norms of controlling abnormality than enforcing laws and, in the United States, this construct of abnormality has for centuries been deeply raced. If this is the right time to be optimistic about criminal justice reform, it is at least in part because the irrepressible emphasis on race by the agents of the carceral state has become more visible and its clash with American legal values less ignorable.
Racing Abnormality, Normalizing Race: The Origins of America's Peculiar Carceral State and Its Prospects for Democratic Transformation Today,
Nw. U. L. Rev.