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12 Ohio St. J. Crim. L. 1 (2014-2015)
Critical Race Theory and Criminal Justice

handle is hein.journals/osjcl12 and id is 7 raw text is: Critical Race Theory and Criminal Justice
I. BENNETT CAPERS*
INTRODUCTION
When the Ohio State Journal of Criminal Law invited me to guest edit a
symposium issue, the answer was an easy one. For so many of us, this journal
feels like home. Choosing a topic was an easy call as well. As it happened, I had
recently been asked to write an encyclopedia entry on Critical Race Theory [CRT]
and criminal justice for the Oxford Handbook of Criminal Law.1 Writing the entry
had whetted by appetite, so to speak. What better than to explore, through a
symposium issue, more of what we do. Indeed, given that CRT is celebrating its
25th anniversary, such a symposium topic seemed timely as well.
It also seemed a natural topic given the continuing salience of race throughout
the criminal justice system. This is true on the front end, in terms of over-
enforcement through racial profiling, such as that demonstrated in Floyd v. City of
New York,2 and under-enforcement through inadequate police services. And race
permeates much of what happens in between arrest and sentencing, in terms of the
charges brought and plea negotiations, and for the small percentage of cases that
go to trial, in terms of jury selection and jury biases. Lastly, race permeates the
back end of our criminal justice system. The problem of sentencing disparities has
not gone away. And the problem of mass incarceration, or rather society's general
indifference to it, is largely unintelligible but for race. There is a reason Michelle
Alexander describes the mass incarceration of black and brown people as the new
Jim Crow;3 the result, I have observed, is that we now benefit by living in newly
purged, whiter cities.4 As James Forman points out, there is something unsettling
about the fact that we incarcerate blacks at a greater rate now than we did at the
time of Brown v. Board of Education,5 and at eight times the rate we incarcerate
whites, and that this dwarfs other black/white disparities such as in unemployment
Professor of Law, Brooklyn Law School. B.A. Princeton University; J.D. Columbia Law
School.  Assistant U.S. Attorney, Southern District of New York 1995-2004.  E-mail:
bennett.capers@brooklaw.edu.
I Bennett Capers, Critical Race Theory, in THE OXFORD HANDBOOK OF CRIMINAL LAW 25
(Marcus D. Dubber & Tatjana Homle eds., 2014).
2 959 F. Supp. 2d 668, 680 (S.D.N.Y. 2013).
3 MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF
COLORBLINDNESS 4 (2010); see also Michelle Alexander, The New Jim Crow, 9 OHIo ST. J. CRIM. L.
7,7(2011).
4  I. Bennett Capers, Defending Life, in LIFE WITHOUT PAROLE: THE NEW DEATH PENALTY
167, 177-80 (Charles Ogletree, Jr. & Austin Sarat eds., 2012).
' 347 U.S. 483 (1954).

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