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104 Geo. L.J. 1419 (2015-2016)
The System Is Working the Way It Is Supposed to: The Limits of Criminal Justice Reform

handle is hein.journals/glj104 and id is 1436 raw text is: 


The System Is Working the Way It Is Supposed to:
The Limits of Criminal Justice Reform


   Ferguson has come to symbolize a widespread sense that there is a
crisis in American criminal justice. This Article describes various articu-
lations of what the problems are and poses the question of whether law is
capable of fixing these problems. I consider the question theoretically by
looking at claims that critical race theorists have made about law and
race. Using Supreme Court cases as examples, I demonstrate how some
of the problems described in the U.S. Justice Department's Ferguson
report, like police violence and widespread arrests of African-Americans
for petty offenses, are not only legal, but integral features of policing and
punishment in the United States. They are how the system is supposed to
work. The conservatives on the Court are aware, and intend, that the
expansive powers they grant the police will be exercised primarily
against African-American men. I then consider the question of reform
using empirical analysis of one of the most popular legal remedies:
pattern or practice investigations by the U.S. Department of Justice.
Some reforms are stopgap measures that provide limited help but fail to
bring about the transformation demanded by the strongest articulations
of the crisis. In fact, in some ways, reform efforts impede transformation.
I conclude by imagining the wholesale transformation necessary to fix
the kinds of problems articulated by the Movement for Black Lives.

  * Professor of Law, Georgetown University Law Center. © 2016, Paul Butler. This Article was
substantially improved by careful reading and/or thoughtful comments from Amna Akbar, David Cole,
Sharon Dolovich, Justin Hansford, Adam Levitin, Allegra McLeod, Tracey Meares, Andrea Roth, Carol
Steiker, Peter Tague, and Tom Tyler. Earlier drafts were presented as works in progress at the
University of Alabama Law School, University of Florida Levin College of Law, Fordham Law School,
Georgetown University Law Center, Northwestern Law School, and at the Criminal Justice Roundtable
at Stanford Law School. I thank all the participants in those sessions, especially Sheila Bedi, Russell
Pearce, Gary Peller, Catherine Powell, Stephen Rushin, David Sklansky, and Deborah Tuerkheimer.
Exemplary research assistance was provided by Eric Glatt, Suraj Kumar, and Daniel Walsh. Thanks to
the members of The Georgetown Law Journal, especially V. Noah Gimbel, Catherine Mullarney, and
Dani Zylberberg. Last but not least, I am grateful to Dean Bill Treanor for a summer research grant that
supported the writing of this Article.


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