Legal Commentary

I'm taking an intermission from my series on law reform and custodial sexual abuse to write about the related issue of criminal regulation of "outgroups."

My WNEC Law colleague Associate Professor Sudha Setty was quoted yesterday in a Christian Science Monitor article regarding India's specialized terrorism courts http://www.csmonitor.com/World/2010/0503/Beyond-Kasab-guilty-verdict-Mumbai-attacks-reshape-Indian-law, a timely topic given this week-end's aborted Times Square bombing.  The CSM article, by Vaishnavi Chandrashekhar, describes how India's harsh counter-terrorism laws are often "better known for targeting political opponents and religious minorities than for delivering speedy justice."

This article got me thinking about my recurring conversations with Sudha about how criminal systems can be used to regulate outgroups.  Based on her series of articles in this area, I think Sudha would argue that one risk of setting up specialized terrorism courts is that they will be used to further subordinate "outgroups."  I agree.  But I tend to focus on how our regular domestic criminal system already is deployed in this way, an argument developed more fully by James Forman, Jr. in his article Exporting Harshness: How the War on Crime Helped Make the War on Terror Possible http://papers.ssrn.com/sol3/papesr.cfm?abstract_id=1242154. 

Felon disenfranchisement laws are one example.  Lyle Denniston of scotusblog reported yesterday that the U.S. Supreme Court has called for the views of the Solicitor General regarding a cert petition in a Massachusetts case challenging the disenfranchisement of imprisoned felons under the Voting Rights Act and ex post facto clause. http://www.scotusblog.com/2010/05/a-move-on-felons-voting/.  The prisoners' complaint alleged that the Massachusetts prohibition had "a disproportionately adverse effect on the voting rights of African-Americans and Hispanic Americans . . . caused by, among other things, the facts that African-Americans and Hispanic-Americans are over-represented in the population of Massachusetts incarcerated felons, and that there exists considerable racial and ethnic bias, both direct and subtle, in the Massachusetts court system."  Simmons et al. v. Galvin, 575 F.3d 24, 28 (1st Cir. 2009).  The First Circuit rejected these challenges (over a dissent), explaining in part that "[p]laintiffs have made no claim that Massachusetts has historically ever used any tests or devices to discourage minority voting."  Id. at 34.  According to Denniston's coverage at scotusblog, the cert petition alleges a split, with the 9CA being the only circuit to have ruled in the prisoners' favor (although it is now reconsidering its decision en banc).

Two recent books, Robert Perkinson's Texas Tough, and Michelle Alexander's The New Jim Crow: Mass Incarceration in the Age of Color-blindness, make the connection between Reconstruction-era expansion of criminal prohibitions and our current, unprecedented criminal punishment system.  PrawfsBlawg alum (and former WNEC faculty member) G. Jack Chin also has written about the Reconstruction-era roots of felon-disenfranchisement measures, designed to maintain racial subordination.

Although the First Circuit may be right that Massachusetts is not Louisiana or Texas, the effects of our nation's history of racial subordination unfortunately cannot be contained in any one region.  Our criminal punishment system--from California to New England--is its current major apparatus, as Alexander's book makes plain.  Specialized criminal punishment for "outgroups" is nothing new in America.