I’m giving a paper at the APA central on Wednesdays at 3:00.
The racial disparities that plague the American criminal justice system seem to call for the suspension of criminal penalties, at least for black offenders. But refusing to punish violent offenses leaves unprotected those most vulnerable to crime, and outright abolition thus appears to undermine the rights and liberties of black Americans. I call this the decarceration dilemma. After analyzing and evaluating Christopher Lewis’s admirable attempt to resolve the dilemma, I offer my own, which employs a procedural rather than a substantive solution. I lean on the principle of expanded asymmetry (EA), which holds that it is better to underpunish than overpunish. After defending the principle, I note that EA obtains only under conditions of uncertainty. I then show that because virtually all trials of black offenders meet the uncertainty condition, sentencing authorities are obliged to treat black offenders leniently. I conclude by noting the advantages of my proceduralist approach.