The American justice system exists in order to guarantee all citizens the right to the fair, impartial judgement of the law. Part of that guarantee includes the promise that citizens will not be judged on account of their race.
It’s not news to say that America has historically not always lived up that ideal; from the slave trade to hard drug enforcement in the 20th century, there have been clear failures of our system to live up to its founding principles. However, until recently, Americans agreed that our ideal was a criminal justice system that treated each individual citizen with respect and did not discriminate on the basis of race – that is, a colorblind legal system. Now, critical race theory and the notion of “prosecution equity” threatens to reverse this commitment to colorblind law.
Social justice activists are working hard, in the name of “equity,” to compromise the foundations of our justice system. In Arlington Country, VA, for example, the commonwealth attorney Parisa Dehghani-Tafti recently announced that she will be adjusting her prosecution praxis to align with the standards of the Vera Institute of Justice, a far-left non-profit that seeks to bring critical race theory into the courtroom. As part of this initiative, she announced that she will be pursuing a “reduction in the racial disparities in prosecution” under the authority of her office.
Currently, social science research has found that 48 percent of people charged with a crime in Arlington were Black, while 40 percent were White. A reduction in racial disparities in prosecution would mean Dehghani-Tafti would have to find some way to lower prosecutions for crimes committed by Black Americans or increase prosecutions for White Americans. Already, she has quit prosecuting marijuana charges merely because “African-Americans are at least 8 times more likely to be arrested for marijuana possession than whites” (which has landed her in hot water with the Virginia legal system). Going forward, this could mean anything from getting rid of charges for crimes that Black Americans disproportionately commit to actually levelling different punishments to Black versus White Americans.
How can this possibly be justified? Within the critical race framework, all white people are members of the “oppressor” class due to their race. Black people are all “oppressed.” Apart from socioeconomic status, power, or any other variable, they hold these classifications constant. By this logic, any crime committed by a white person is a crime in the way we’d normally understand it: an individual chose to break the law, and must be held responsible. A crime committed by a Black person, however, is the result of their oppression; they can’t be held responsible because it isn’t truly their fault. Rather, it is the result of historic, systemic oppression creating the conditions that lead the Black individual to commit a crime.
The problems with this argument are manifold. First and foremost, it is unbelievably racist towards Black Americans. Critical race theory teaches Black people that they are inherently inferior to whites on the food chain of colorblind law, and that nothing they ever do can reverse that. At its core, there is little difference between this viewpoint and that of the Ku Klux Klan. The only distinction is that the Klan uses this idea to advance white supremacy, while critical race theorists use this idea to create social instability and deconstruct Western liberal due process.
Furthermore, it removes all individual autonomy from Black Americans. If a Black person cannot be responsible for his or her failures, the logic follows that neither can he or she be truly responsible for their successes. This in fact ties in with Harvard Law professor Derrick Bell’s concept of interest convergence. Bell, one of the original founders of critical race theory, argued that Black interests are only allowed to advance when doing so is in line with white interests. (Fittingly, Bell was also one of Dehghani-Tafti’s professors in law school). Extrapolating this to individual autonomy, critical theorists must say that if a Black person, say, becomes a successful member of their local community, that success is contingent upon white people allowing them to succeed. This is both demeaning to Black people and also an unfounded understanding of how the world works.
The effects of “prosecution equity” are extremely dangerous within the context of criminal prosecution. There are vast inequities within criminal statistics: Black Americans make up 13% of the population but commit 54% of homicides. Should they be prosecuted at a rate of 13% or 54% of the U.S. population? The answer is neither. They should be prosecuted in accordance with the preponderance of the evidence of their individual crimes. There are many reasons for this overall criminal disparity between Blacks and Whites, and historical marginalization is quite plausibly one of them–as well as behavior. But rather than analyze and address the contributing variables, critical race theorists argue that prosecutors have an ethical obligation to address this problem by simply not prosecuting criminals.
For critical theorists, statistical equity is the goal, even if it comes at the expense of quality of life or societal stability. Rather than address the root problems behind why Black people are more likely to commit armed robbery, the equity-focused approach is to simply not prosecute Black offenders so that it looks like they’re committing crimes at the same rate as white people. Not only is this dishonest; it empowers criminals to weaponize their race and commit violent crimes, knowing that they won’t be held accountable.
We’ve already seen similar policies play out last year during the George Floyd riots. When prosecutors decided to not pursue cases related to violent rioters and arsonists involved in the protests, a trend emerged of repeat offenders destroying buildings, assaulting people, and causing destruction for weeks on end.
Yet it seems that social justice activists have learned nothing from last year’s riots, which were the most destructive in American history. Instead, radical prosecutors and organizations like the Vera Institute of Justice are more committed than ever to guaranteeing equity in America by making prosecutors racist.
To be clear, advocates for prosecution equity are not advocating that murderers or rapists be set free based upon their race…yet. But that is where the logic inevitably leads. Already in Arlington County, Dehghani-Tafti is beginning her prosecution equity campaign by looking at “16- to 24-year-olds accused of committing crimes against other people.” If, in critical theorists’ own words, the only remedy to current discrimination is future discrimination, then it only makes sense that as the antiracist agenda moves forward, violent offenders will be protected from prosecution based upon the same reasoning. The only way to atone for our nation’s historical failure to live up to our own standards is to totally reverse the judicial system.
Antiracist logic is a slippery slope, and it invariably accelerates towards a critical telos. The actions being taken today in Arlington County are one small step towards the complete deconstruction of the American justice system. If we truly want to live up to the ideals spelled out in our founding documents, the idea that “all men are created equal,” we must commit to a colorblind interpretation of the law. Using the courts to discriminate, no matter how noble the alleged justification, will only take us further and further away from a truly just society.
Kenny Xu is the President of Color Us United, which advocates for a raceblind America in the midst of racial division. He is the author of An Inconvenient Minority which exposes racial discrimination against Asian Americans at elite colleges like Harvard and Yale.DONATE
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