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AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA (Keith O. Lawrence ed., The Aspen Institute 2011) Harvey Gee1 INTRODUCTION Despite the decline in violent and property crime rates since the mid 1990s, Americans continue to believe that the crime problem is getting worse and that tougher sentences are needed. This false perception fuels the dysfunctional nature of our criminal justice system.2 In Race, Crime, and Punishment: Breaking the Connection in America (Race, Crime, and Punishment ),3 Keith Lawrence, project manager of The Aspen Institutes Roundtable on Community Change, along with nine other criminal justice reformers, social scientists, legal scholars, and human rights advocates, approach the United States criminal justice systems inherent flaws from a new perspective.4 The volume is the end product of conversations that took place between the authors and participants at a June 2007 meeting to frame the Rethinking Crime and Punishment for the Twenty-First Century Project.5 The books organization focuses on

Attorney, Office of the Federal Public Defender (Capital Habeas Unit), Western District of Pennsylvania; U.S. Supreme Court Fellows Program Finalist, 2012. The views expressed herein are not necessarily attributed to any past, present, or future employers. 2 ROUNDTABLE ON COMMUNITY CHANGE, THE ASPEN INSTITUTE, RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA 5 (Keith O. Lawrence ed., The Aspen Institute 2011); see Lydia Saad, Most Americans Believe Crime in U.S. Is Worsening, GALLUP (Oct. 31, 2011), (Despite a sharp decline in the United States violent crime rate since the mid 1990s, the majority of Americans continue to believe the nations crime problem is getting worse, as they have for most of the decade.). 3 RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA, supra note 2. 4 See RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA, supra note 2, at vi-vii. 5 See RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA, supra note 2, at xiii.


84 two themes throughout its thirteen chapters, including: (1) changing the public perception of race, crime, and punishment, and (2) alternative visions of justice, with policy recommendations. Each essay contribution is supplemented by a summary of additional comments made by the author of each essay. Though a full account of each essay is beyond the scope of this review, the major points of Race, Crime, and Punishment are discussed below. In the Introduction, Lawrence begins the conversation by discussing mainstream Americas perception of the relationship between race, crime, and punishment. Essentially, Lawrence claims that there is an ingrained belief that racial minorities are criminals.6 He argues that race needs to be understood as a core social and political construction that creates racial disproportion. Lawrence asserts that racial minorities, especially poor African Americans and Latinos, are enmeshed in the justice system as Whites administer its enforcement in a world with an existing racial hierarchy and structural racism.7 The mass incarceration numbers are alarming. As of 2009, more than 2.3 million individuals were in jail or prison, and an estimated 7.3 million were under some form of direct criminal justice supervision.8 According to Lawrence: African Americans make up about 40 percent of the prison and jail population but just 13 percent of the U.S. population. Latinos comprise 20 percent of those behind bars but only about 15 percent of the population . . . [;] an estimated 4,777 black males were locked up for every 100,000 males in the free population, compared to about 727 per 100,000 white males.9

RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA, supra note 2, at 6. 7 See RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA, supra note 2, at 2. 8 RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA, supra note 2, at 4 (citing Bureau of Justice Statistics, Prison Inmates at Midyear 2008 Statistical Tables (March 2009, rev. April 8, 2009), 9 RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA, supra note 2, at 4.


85 To his chagrin, the statistics assign to racial minorities, especially African Americans and Latinos, the racial stigma of being criminals.10 With bleak statistics reflecting racial disparities in mind, Lawrence explains how the media machinery assists in the perpetuation of racist stereotypes of people of color, and discusses how these false perceptions encourage political consensus in favor of get tough-on-crime laws.11 This demonization process can be traced to the violent drug trade of the 1970s, then exacerbated by the crack epidemic of the 1980s, and laying the ground work for the governments response in the form of the War on Drugs, which has been used to perpetuate racial discrimination against African Americans.12 The most current incantations, created amidst the current anti-immigrant landscape, are new racial and cultural fears targeting Latino immigrants and Muslim foreigners.13 I. CHANGING THE PICTURE From the Jim Crow era to the so-called post-racial era, the essays in part one of Race, Crime, and Punishment critically examine the historical and contemporary public values discoursed around race, crime, and punishment. First, Michelle Alexander discusses the problems associated with being labeled a felon and alleges that felons are relegated to a permanent, second-class status upon release. She

RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA, supra note 2, at 4. 11 See RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA, supra note 2, at 6 (This is not irrational in the strictest sense, since major media sources gravitate toward the imagery of street crime[,] . . . thus reinforc[ing] such so-called knowledge almost daily.); see also Sheri Lynn Johnson, Racial Imagery in Criminal Cases, 67 TUL. L. REV. 1739, 1743 (1993) (Racial imagery can be conveyed in pictures, stories, examples, and generalizations. These visual and auditory experiences may themselves generate a racial image, or they may recall for the observer racial imagery to which she was exposed at an earlier time.). 12 RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA, supra note 2, at 6; see also Gabriel J. Chin, Race, the War on Drugs, and the Collateral Consequences of Criminal Conviction, 6 J. GENDER RACE & JUST. 253, 254 (2002) (describing the War on Drugs as a technique of discriminating against racial minorities); see also David D. Cole, Formalism, Realism, and the War on Drugs, 35 SUFFOLK U. L. REV. 241, 251 (2001) (Racial minorities have borne the brunt of this incarceration boom.). 13 See RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA, supra note 2, at 11.


86 states that felons are subjected to discrimination in employment and housing, the denial of voting rights and educational opportunities, ineligibility for food stamps and other public assistance, and exclusion from jury service.14 Alexanders thesis flies in the face of the belief that African American men are incarcerated largely because of poverty or poor choices.15 Alexander begins by explaining that Jim Crow laws arose from the ashes of slavery and evolved into unofficial subordination and subjugation, including African American segregation, economic exploitation, and socio-political exclusion.16 She also argues that the association of Blackness with crime, which is in part fostered by politicians and enabled by propaganda for the war on drugs, has been used to perpetuate racial discrimination against African Americans.17 Alexander concludes that the concept of colorblindness as public policy is flawed since it construes African Americans and Latinos as raceless people who are ill-equipped to function in society.18 Ian Haney Lopez follows Alexander by discussing the manner in which the American justice system has historically played a role in racial stratification (i.e., Whites on top and African Americans and other non-Whites on the bottom), and explains how color-blindness, which was the moral force behind the civil rights movement, has now been supplanted by criminal law practitioners to defend structural racism.19 Lopez asserts that Jim Crow has been replaced in the post-civil rights era with ideologies that work to protect the same wealth, power, and prestige that was secured through racism.20 He insists that today racism exists even though mainstream America and the courts fail to see it because there is no visible or physical wrongdoer from their vantage point.21 To make his point, Lopez refers to the Supreme Courts ruling in McClesky v. Kemp,22 wherein

Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, in RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA 23, 23 (Keith O. Lawrence ed., The Aspen Institute 2011). 15 Id. at 25. 16 Id. at 23. 17 Id. at 37. 18 Id. at 32. 19 Ian Haney Lopez, Structural Racism and Crime Control, in RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA 39, 45 (Keith O. Lawrence ed., The Aspen Institute 2011). 20 See id. at 43. 21 Id. at 41. 22 McClesky v. Kemp, 481 U.S. 279 (1987); Lopez, supra note 19, at 41.


87 the Court ruled that statistical evidence alleging race discrimination in death penalty cases, even though traced in the historical record and currently practiced, was not probative and was irrelevant, unless the defendant proved intentional discrimination.23 Here, Lopezs discussion about the racial disparity in the implementation of the death penalty is expected because any discussion of race and crime should discuss the topic. As of January 1, 2011, there were approximately 1,358 (41.77%) African American inmates on death row.24 There is ample support underscoring the fact that the death penalty is applied more often in cases including African American defendants and white victims, and less often when cases involve white defendants and African American victims.25 In 1987, Justice Lewis Powell, writing for the majority in McClesky v. Kemp, decided that race was not an issue in McCleskys conviction.26 Applying a color-blind analysis, he professed that race was not a proven factor because the statistical evidence could not establish the requisite racial animus of prosecutors, jurors, and judges.27 According to Lopez, Since statistics could produce no culprit caught in the act, the Court treated the stark numbers as if they said nothing about harmful racial distortions in [the] criminal system.28 Broadly, as applied to the criminal justice system, Lopez contends that mass imprisonment is motivated by racial politics.29 He further cautions, Co-opting the moral force of the civil rights movement, [color-blindness] uses that power to attack racial remediation and to defend structural racism, including racism that
23 24

McCleskey, 481 U.S. at 297. Deborah Fins, Quarterly Report, Criminal Justice Project of the NAACP, Death Row U.S.A. 1, 1 (Winter 2011), 25 See Angela J. Davis, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 81 (2007). 26 McCleskey, 481 U.S. at 309. 27 481 U.S. at 309; see Erica J. Hashimoto, Class Matters, 101 J. CRIM. L. & CRIMINOLOGY 31, 51 (2011) (noting that since McClesky, selective prosecution claims have been more difficult to establish). 28 Lopez, supra note 19, at 39; see also Sumi Cho, Post-Racialism, 94 IOWA L. REV. 1589, 1645 (2009); Michael Selmi, Understanding Discrimination in a PostRacial World, 32 CARDOZO L. REV. 833, 833 (2011); Jerry Kang & Kristin Lange, Seeing Through Colorblindness: Implicit Bias and the Law, 58 UCLA L. REV. 465, 519 (2010) (asserting that race-neutral polices and rationales camouflage racial subordination, while rejecting the notion that colorblindness exists in this postracial era.). 29 Lopez, supra note 19, at 54.


88 infects the criminal law arena.30 Lopez is not alone in his beliefs. Elsewhere, in a forum discussing race in the post-racial era following the election of Barack Obama, our nations first African American President, James Foreman argued that race remains central to race relations in this country because our criminal system is far from being post-racial.31 Likewise, David Cole urges, "our current policies are tainted by racial discrimination and need to be radically reassessed.32 After reading the first part of Race, Crime, and Punishment, it appears that the writings are not as comprehensive in scope as the books title suggests, even though the authors so often profess the need for a new inclusive paradigm of criminal justice reform. Upon finishing the entire volume, this thought was confirmed. In discussions about the systems failings, there are noticeable absences of any references showing how Asian Americans fit into the conversation about crime and race. This is not surprising given that criminal law literature often overlooks Asian Americans, despite their contribution to legal history and contemporary conversations about crime policy.33 In fact, few writings have even discussed Asian Americans or Asian offenders. Accordingly, it is time to make more social and legal inquiries about Asian Americans in the administration of justice. By doing so, such efforts could broaden our understanding of the legitimacy of criminal law and procedure. While Asian Americans are represented in both the state and federal prison population, there has been little analysis as to the criminal charges brought against them or the issues raised in their cases. This is curious given that there are approximately 10,000 Asian American offenders in prison, thus representing one of the fastest growing segments of the prison population.34 [I]ncarceration
30 31

Id. See James Forman, Jr., The Black Poor, Black Elites, and Americas Prisons, 32 CARDOZO L. REV. 791, 791 (2011). 32 David Cole, As Freedom Advances: The Paradox of Severity in American Criminal Justice, 3 U. PA. J. CONST. L. 455, 457 (2001) ([T]hese rules create a system-wide double standard under which minorities and the poor, and especially poor minorities, are routinely denied the constitutional protections that privileged whites enjoy.). 33 See generally Harvey Gee, Asian Americans and Criminal Law and Criminal Procedure: A Missing Chapter from the Race Jurisprudence Anthology, 2 GEO. J.L. & MOD. CRIT. RACE PERSP. 185 (2010). 34 See Brian D. Johnson & Sara Betsinger, Punishing the Model Minority: AsianAmerican Criminal Sentencing Outcomes in Federal District Courts, 47


89 rates for Asian Americans have quadrupled in the past ten years.35 Currently, there are approximately 42 (1.29%) Asian and Asian American inmates on death row in the United States.36 Data provided by scholars Brian Johnson and Sara Betsinger reflects that Asian Americans experience sentencing leniency for fraud crimes and drug cases where African Americans and Latinos are punished more severely.37 In Johnson and Betsingers study, Asian American offenders were punished similarly to White offenders for all offenses examined, except immigration, an area where interestingly, Asian Americans were punished more severely.38 These findings have been reinforced by other scholars who explain that immigrants face disparate treatment in the criminal justice system due to their citizenship status.39 Additional analysis on sentencing disparities is available from Professor Sharon Davies examination of studies of the incarceration rates in Oregon, Washington, and Utah to determine which minorities are overrepresented in the prison population. Davies determined that Asian and White defendants are more likely to receive probation, rather than incarceration, than African American and Latino defendants.40 Still, what are the incarceration rates when broken down by individual Asian subgroups? It seems that more research is needed. Of particular interest would be Southeast Asian defendants, including those of Cambodian and Vietnamese descent, who have higher recidivism rates as compared to most other racial and ethnic groups.41 Future studies should also explore the influence that
CRIMINOLOGY 1045, 1046 (2009) (discussing the increasing prominence of Asian American groups in the criminal justice system). 35 Sheila A. Bedi, The Constructed Identities of Asian and African Americans: A Story of Two Races and the Criminal Justice System, 19 HARV. BLACKLETTER L.J. 181, 184 (2003). 36 Deborah Fins, Quarterly Report, Criminal Justice Project of the NAACP, Death Row U.S.A. 1, 1 (Winter 2011), 37 See Johnson & Betsinger, supra note 34, at 1076. 38 See id. 39 See Jeff Yates et al., A War on Drugs or a War on Immigrants? Expanding the Definition of Drug Trafficking in Determining Aggravated Felon Status for Noncitizens, 64 MD. L. REV. 875, 881 (2005). 40 See Sharon L. Davies, Study Habits: Probing Modern Attempts to Assess Minority Offender Disproportionality, 66 LAW & CONTEMP. PROBS. 17, 29-30 (2003). 41 See Bill Ong Hing, Detention to DeportationRethinking the Removal of Cambodian Refugees, 38 U.C. DAVIS L. REV. 891, 939 (2005).


90 refugee experiences and low socioeconomic backgrounds have on criminal behavior.42 Next, any book that purports to tackle race, racial stereotyping, and criminal justice ought to at least mention the subissue of cultural competency. Contemporary legal representation of Asian Americans in criminal matters requires knowledge about their culture a topic that, unfortunately, has received insufficient attention. Legal professionals should be aware that different cultures have different patterns of behavior and norms of living, including different ways of communication.43 Such an awareness and familiarity is often described as being culturally competent. Cultural competency challenges assumptions that the court and prosecution have about defendants and provides a cultural context, thereby rejecting the wholesale stereotyping of one person with all persons sharing the same cultural background.44 Culturally competent people can reason and behave effectively when faced with culturally diverse situations, where assumptions, values and traditions differ from those to which they are accustomed.45 As a practical matter, culture may be used as a sword or shield. On the one hand, the prosecution routinely uses gang experts offensively to explain the cultural meaning of an alleged gang members violent acts, including his or her intent to gain entrance and respect into a gang by using brute physical force.46 Gang expert testimony has great evidentiary power in supporting the gang allegation, thus providing juries a motive for the crime.47 On the other hand, using Asian defendants as an example, courts consider


See id. at 939-46; Susan Taing, Comment, Lost in the Shuffle: The Failure of the Pan-Asian Coalition to Advance the Interests of Southeast Asian Americans, 16 BERKELEY LA RAZA L.J. 23, 41-43 (2005). 43 See Carol Copps Hartley & Carrie J. Petrucci, Practicing Culturally Competent Therapeutic Jurisprudence: A Collaboration Between Social Work and Law, 14 WASH. U. J.L. & Poly 133, 179 (2004). 44 See Scharlette Holdman & Christopher Seeds, Cultural Competency in Capital Mitigation, 36 HOFSTRA L. REV. 883, 887 (2008). 45 See Michael L. Perlin & Valerie McClain, Where Souls Are Forgotten: Cultural Competencies, Forensic Evaluations, and International Human Rights, 15 PSYCHOLOGY, PUBLIC POLICY, AND LAW 257, 259 (2009). 46 See Christopher McGinnis & Sarah Eisenhart, Interrogation is Not Ethnography: The Irrational Admission of Gang Cops as Experts in the Field of Sociology, 7 HASTINGS RACE & POVERTY L.J. 111, 123-24 (2010). 47 Id. at 115.


91 their cultural and socioeconomic background as a partial excuse, or as a mitigating factor, for their criminal acts.48 Notably, the use of culture as a criminal defense strategy in cases involving Asian and Asian American defendants is not a new phenomenon. In cases where cultural defenses have been applied, immigrant defendants have presented evidence as to how their cultural backgrounds may have shaped their mental states.49 For example, Asian immigrant men who killed their unfaithful Asian immigrant wives have successfully claimed that, in light of their cultural background, they were reasonably provoked into a heat of passion and therefore could not be convicted of murder.50 In addition, if the defendant is a Hmong man accused of raping his wife or girlfriend, he may argue that because of the Hmong custom of marriage by capture, he thought that the sex was consensual.51 The cultural defense has also been successfully deployed when an Asian mother, in response to spousal infidelity, tried to kill her children and herself in what has been called parent-child suicide.52 As with many criminal cases, these cases typically begin with an arrest and filing of criminal charges, but often the prosecutor reduces the charges in exchange for a plea bargain. Part one of Race, Crime, and Punishment also features essays by Blake Emerson and Alice OConnor. Emerson argues that the concept of individual responsibility as the basis for imposing punishment as a form of social control actually promotes irresponsibility.53 Resting upon this premise, Emerson would like to see the punitive functions of incarceration obtained through restorative justice practices, such as victim-offender mediation.54 Similarly, in implicitly building upon the themes advanced by both Alexander and Lopez, OConnor wants to change the conversation from racial fear being the engine-driven criminal justice policy to the

See Leti Volpp, (Mis)identifying Culture: Asian Women and the Cultural Defense, 17 HARV. WOMENS L.J., 57, 57 (1994). 49 See id. at 57. 50 Id. at 62. 51 See Deirdre Evans-Pritchard & Alison Dundes Renteln, The Interpretation and Distortion of Culture: A Hmong Marriage by Capture Case in Fresno, California, 4 S. CAL. INTERDISC. L.J. 1, 8-9 (1995). 52 Volpp, supra note 48, at 85-90. 53 See Blake Emerson, Criminal Justice and the Ideology of Individual Responsibility, in RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA 70 (Keith O. Lawrence ed., The Aspen Institute 2011). 54 See id. at 71.


92 creation of policies that reflect both the economic and social justice values of today.55 It appears that OConnor is a pragmatist in suggesting that constituencies must be built for concrete policy reform and for organizing issue networks.56 II. CHALLENGES FOR JUSTICE REFORM Part two offers alternative visions for justice reform. To begin, Michelle Alexander suggests that civil rights organizations refocus their efforts from promoting affirmative action to prioritizing criminal justice reform.57 She characterizes the diversity rationale for affirmative action as piecemeal reform that has ironically helped to facilitate mass incarceration and reinforce racial hierarchy.58 In Alexanders view, affirmative action is concealing the fact that a structure of racial caste-mass incarceration exists, while giving a false perception to the general public that affirmative action is the main battlefront in U.S. race relations.59 The thrust of Alexanders essay is that affirmative action has enabled the advancement of racial minorities, and that such progress exacerbates the appearance of racial equity without the reality . . .[;] without fundamentally altering any of the structures that create racial inequality in the first place.60 However, Alexanders argument is not persuasive because it is uncertain whether civil rights organizations would have significantly poured their efforts into working toward improvement of the criminal justice system, at least to the extent that Alexander professes they would have. Also uncertain is whether current criminal justice system ailments and the racial caste system would not still exist had affirmative action never been created. Holding a contrary view to Alexander is Mari Matsuda,

See Alice OConnor, Changing the Conversation, in RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA 95-96 (Keith O. Lawrence ed., The Aspen Institute 2011). 56 See id. at 95. 57 See Michelle Alexander, Affirmative Action: A Barrier to Racially Equitable Justice?, in RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA 121 (Keith O. Lawrence ed., The Aspen Institute 2011). 58 See id. at 123; see generally, David Kow, The (Un)compelling Interests for Underrepresented Minority Students: Enhancing the Education of White Students Underexposed to Racial Diversity, 20 BERKELEY LA RAZA L.J. 157 (2010) (noting that Kow presents an insightful analysis of the affirmative action diversity rationale for Latinos, Asian Americans, and Native Americans). 59 Alexander, supra note 57, at 123. 60 Id. at 127.


93 who argues that affirmative action is necessary [t]o prevent crime, to change law enforcement for the better, and to rethink crime and punishment.61 Matsuda claims that affirmative action creates social upward mobility for many because it opens doors to employment and education.62 Her favorable view regarding affirmative action is echoed by Paul Butler, who argues that justice requires affirmative action in the criminal law.63 Butler asserts that the diversity rationale in affirmative action could include emancipating African Americans from prisons so that they are no longer overrepresented in prison populations.64 Butler explains that, Diversity affirmative action attributes disproportionate black criminality to the distorting influence of white supremacy on the political and legal processes by which criminals are named and selected for punishment. Without racial hegemony, constructs of danger and immorality would be color-blind. Immoral and dangerous persons would no longer be disproportionately located in the African American community.65 There are other noticeable weaknesses in Alexanders essay. Her affirmative action debate is largely framed in a Black and White binary. As a result, the identities of Latinos and Asian Americans tend to be subsumed by the African American experience. Perhaps an insider/outsider binary lens would have been more of an apt concept for the book. Alexanders essay gives the reader the impression that civil rights groups are not involved in criminal justice issues. However, that is not true. A recent example of civil rights advocacy in the criminal forum is Padilla v. Kentucky,66 wherein the U.S. Supreme Court held that the Sixth Amendment right to competent counsel was violated when a defense lawyer failed to warn

Mari Matsuda, Crime and Affirmative Action, 1 J. GENDER RACE & JUST. 309, 312 (1998). 62 See id. at 318. 63 See Paul Butler, Affirmative Action and the Criminal Law, 68 U. COLO. L. REV. 841, 843 (1997). 64 See id. at 857. 65 Id. at 868. 66 Padilla v. Kentucky, 130 S. Ct. 1473 (2010).


94 his noncitizen client, Padilla, that he was certain to be deported if he pled guilty.67 The Asian American Justice Center, along with the Mexican American Legal Defense and Education Fund, filed a joint amicus brief in favor of Padilla.68 Another joint brief was filed in his favor by criminal and immigration law professors, the Capital Area Immigrants' Rights Coalition, the Washington Lawyers' Committee for Civil Rights and Urban Affairs, and the Western Kentucky Refugee Mutual Assistance Society, Inc.69 Curiously, although Race, Crime, and Punishments Introduction refers to Latino immigrants, Latinos tend to make only cameo appearances throughout the book. Typically, they are considered in discussions regarding the general impact of crime control on African Americans and Latinos, and in historical accounts of the nations immigration patterns. Given that a criminal defendants immigration status makes him or her even more vulnerable due to the risk of deportation, Latinos, like Asian Americans, many of whom are immigrants, should have been more central to the dialogue. First, such coverage is merited because the number of Latinos on death row is on the rise.70 For example, there are approximately 394 (12.12%) Latino inmates currently on death row, and in 2009 alone, 18 (20%) Latinos were newly admitted to death row.71 Second, what happens to one minority group affects another. Latinos, like Asian Americans, are often perceived as foreigners even though they have been born in this country or have had ancestral roots in the United States for several generations.72 Those who are not citizens face disparate treatment in pretrial proceedings and
67 68

Id. at 1483. Brief for Asian American Justice Center et al. as Amici Curiae Supporting Petitioner, Padilla v. Kentucky, 130 S.Ct. 1473 (2010) (No. 08-651), 2009 WL 1567358. 69 Brief for Criminal and Immigration Law Professors et al. as Amici Curiae Supporting Petitioner, Padilla v. Kentucky, 130 S.Ct. 1473 (2010) (No. 08-651), 2009 WL 164242. 70 Deborah Fins, Quarterly Report, Criminal Justice Project of the NAACP, Death Row U.S.A. 1, 1 (Winter 2011), 71 Id. 72 See Kevin R. Johnson, Racial Hierarchy, Asian Americans and Latinos as Foreigners, and Social Change: Is Law the Way to Go?, 76 OR. L. REV. 347, 354 (1997); Neil Gotanda, New Directions in Asian American Jurisprudence, 17 ASIAN AM. L.J. 5, 10 (2010); Frank H. Wu, Profiling Principle: The Prosecution of Wen Ho Lee and the Defense of Asian Americans, 7 ASIAN PAC. AM. L.J. 52 (2001).


95 adjudication because of their immigration status.73 This is important given the impact of immigration laws, such as Arizonas S.B. 1070 and similar legislation in other states, reflecting a merge of immigration and criminal law.74 There are concerns that Arizonas law will lead to racial profiling and harassment because the law gives authority to border control agents to question individuals as part of a lawful stop about their immigration status based upon a reasonable suspicion that the person is an undocumented immigrant.75 These laws shadow controversies over bilingual education, bilingual ballots, and the more fundamental debate about linguistic pluralism and the place of non-English languages in public life, affecting not only Latino immigrants, but all immigrants.76 This anti-immigration fervor sets the stage for Alan Mobleys contribution to Race, Crime, and Punishment where he embraces a global justice transformation approach and seeks out a human security paradigm, which he describes as a large societal project of


See Eveyln H. Cruz, Competent Voices: Noncitizen Defendants and the Right to Know the Immigration Consequences of Plea Agreements, 13 HARV. LATINO L. REV. 47, 48 (2010). 74 See Devon W. Carbodo, Undocumented Criminal Procedure, 58 UCLA L. REV. 1543, 1545 (2011) (explaining that some scholars have also been critical of the manner in which immigration laws have adopted the language of criminal law and thus have become just as tough in enforcement and incarceration); Teresa A. Miller, Lessons Learned, Lessons Lost: Immigration Enforcements Failed Experiment with Penal Severity, 38 FORDHAM URB. L.J. 217, 226-27 (2010); see also Department of Justice, Office of Public Affairs, Department of Justice Challenges South Carolinas Immigration Law (Oct. 31, 2011), (discussing immigration legislation in Alabama, Arizona, and South Carolina, which created a new immigration status verification). 75 See, e.g., David A. Selden, et al., Placing S.B. 1070 and Racial Profiling Into Context, and What S.B. 1070 Reveals the Legislative Process in Arizona, 43 ARIZ. ST. L.J. 523, 525 (2011); Karla Mari McKanders, Sustaining Tiered Personhood: Jim Crow and Anti-Immigrant Laws, 26 HARV. J. RACIAL & ETHNIC JUST. 163 (2010); Andrea Christina Hill, Latinos and S.B. 1070: Demonization, Dehumanization, and Disenfranchisement, 14 HARV. LATINO L. REV. 35, 38 (2011); Gabriel J. Chin & Kevin R. Johnson, A High Court Ruling Underpins Arizona Law, WASHINGTON POST, July 13, 2010, at, available at 2010 WLNR 14028190. 76 See Raymond Tatalovich, Official English as Nativist Backlash, in IMMIGRANTS OUT! THE NEW NATIVISM AND THE ANTI-IMMIGRANT IMPULSE IN THE UNITED STATES 78-102 (Juan F. Perea ed., N.Y. Univ. Press 1997).


96 harm reduction, unity, and equity.77 A similar view is shared by Eric Cadora since he finds fault in the lack of current justice reform strategies, like rehabilitation and reentry initiatives, which do not work.78 Cadora offers alternatives such as creating education programs and jobs, and providing mental health and addiction treatment, in addition to other services to help prevent probation and parole revocations.79 Moving forward, Jonathan Simon argues in his essay that violent crime, especially murder, is over punished, and notes that he is skeptical of sentencing reforms for nonviolent crimes.80 He contends that longer, determinate sentences are manufactured to appease the publics desire to lock violent offenders away.81 With that in mind, he asserts that excessive punishment for murder encourages the enhancement of sentences for lesser crimes.82 Simon points out that prison sentences for murder in the United States are generally harsher than punishment in other countries.83 In presenting his thesis, Simon frequently refers to California criminal laws and the problem of overcrowding in California prisons to bolster his arguments. Though not discussed by Simon, one example of a harsh criminal law is Californias Three Strikes Law, which is mentioned by some of the authors in Race, Crime, and Punishment, but is not analyzed in-depth. Californias Three Strikes Law is considered the harshest recidivistic law in the country and has significantly impacted Latinos and Asian Americans, in addition to African


See Alan Mobley, Resuscitating Justice Through the Human Security Framework: Are We Ready to Listen?, in RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA 116-17 (Keith O. Lawrence ed., The Aspen Institute 2011). 78 See Eric Cadora, Resisting Justice: Opportunities to Build a New Public Safety Agenda Founded in Civil Society, in RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA 155-56 (Keith O. Lawrence ed., The Aspen Institute 2011). 79 Id. 80 See Jonathan Simon, Drugs Are Not the (Only) Problem: Structural Racism, Mass Imprisonment, and the Overpunishment of Violent Crime in America, in RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA 133 (Keith O. Lawrence ed., The Aspen Institute 2011). 81 Id. at 134. 82 Id. 83 Id. at 137.


97 Americans.84 Under the law passed by the California Legislature, and later by voters in 1994, defendants with one prior serious or violent felony conviction must receive twice the prison term they would otherwise receive for the current conviction.85 Life sentences are mandatory for third strikes, with no parole possible for 25 years.86 The chief reason for its broad sweep is the unique rule of counting any felony as a third strike (other states with Three Strikes Laws require that the third strike be a serious or violent felony, such as murder, attempted murder, rape, child molestation, or armed robbery).87 The U.S. Supreme Court settled the legal debate surrounding the controversial aspect of Californias Three Strikes Law. In a pair of 5-4 decisions in Lockyer v. Andrade88 and Ewing v. California,89 the Supreme Court left intact the nations toughest sentencing law, and most likely guaranteed the survival of similar laws in many states that followed Californias lead. In both cases, Justice Sandra Day OConnor, writing for the majority of the Court, upheld the law.90 The Court in Andrade held that the California Legislature had the broad discretion to fashion a sentence that fits within the scope of the proportionality principle91 and that the gross disproportionality principle was not violated when Leandro Andrade was sentenced to two consecutive terms of 25 years to life in prison for stealing videotapes.92


See Estrada v. Chrones, No. CV 06-05278, 2011 WL 4940716 (C.D. Cal. Aug. 22, 2011); Salinas v. Harrnington, No. C 10-02084, 2011 WL 4595242 (N.D. Cal. Oct. 4, 2011); Fernandez v. Adams, No. 1:07CV01278, 2010 WL 5330483 (E.D. Cal. Dec. 20, 2010) (cases involving Latino defendants); see also Khanh Cao v. Taylor, No. CV 02-02076, 2010 WL 5598518 (C.D. Cal. Nov. 2, 2010); Dut Hing Chui v. Kirkland, No. CIV S-06-00962, 2009 WL 981703 (E.D. Cal. Apr. 13, 2009); Vang Cha Yang v. Lewis, No. 1:02CV06408, 2007 WL 1795729 (E.D. Cal. June 20, 2007) (noting that Asian Americans have also been sentenced under Three-Strikes). 85 See Harvey Gee, Revisiting Californias Three-Strikes Law, L.A. DAILY JOURNAL, July 15, 2010, at 5. 86 See id. 87 See id. 88 Lockyer v. Andrade, 538 U.S. 63 (2003). 89 Ewing v. California, 538 U.S. 11 (2003). 90 Andrade, 538 U.S. at 77; Ewing, 538 U.S. at 30-31. 91 Andrade, 538 U.S. at 76. 92 Id. at 77.


98 Legions of law review articles have argued that the wide net of the Three Strikes Law has caught non-serious offenders.93 The law has compelled judges and juries to refuse to convict defendants, and by doing so, has created burdening caseloads for prosecutors, public defenders, and the courts. What Three Strikes Law supporters may not realize is that there are long-term ramifications of incarcerating recidivist felons for their entire life expectancy. The number of elderly criminals currently serving sentences is increasing, largely due to the prevalence of mandatory determinate sentences and extended terms.94 The cost of incarcerating aging prisoners is substantially greater than that of incarcerating other prisoners.95 As criminals are being sentenced to life imprisonment without parole under the Three Strikes Law, the average age of prisoners will rise, and costs even more so because an aging population is more expensive to maintain.96 The aging of the prison population could translate into significant housing costs due to age-related illnesses and associated health care costs. Californians who voted for the Three Strikes Law in 1994 were distressed over the then rising crime statistics, thus giving in to their heightened fears of a lack of public safety.97 Today, Californians should ask themselves how these concerns balance against The great human and financial costs caused by the law. The answer will likely not result in any cause for celebration. Since the narrowly failed ballot measure of Proposition 66 in 2004, which was designed to reform the Three Strikes Law, there have been unrelenting efforts to reform Californias law. For example, a group of Stanford law professors now are pushing a new


See, e.g., Michael Vitiello, Three Strikes Law: A Real or Imagined Deterrent to Crime?, 29 HUM RTS. 3 (Spring 2002); Michael Males & Dan Maccalliar, Striking Out: The Failure of Californias Three Strikes and Youre Out, 11 STAN. L. & POLY REV. 65, 67 (1999); Mark W. Owens, Note, Californias Three Strike Law: Desperate Times Require Desperate Measures, But Will It Work?, 26 PAC. L.J. 881, 884 (1995); Joshua E. Bowers, Note, The Integrity of the Game is Everything: The Problem of Geographic Disparity of Three Strikes, 76 N.Y.U. L. REV. 1164 (2001). 94 Harvey Gee, Revisiting Californias Three-Strikes Law, L.A. DAILY JOURNAL, July 15, 2010, at 5. 95 Id. 96 Id. 97 Id.


99 reform initiative that will reserve the twenty-five years to life sentence only for murders, rapists, and child-abusers.98 In his essay in Race, Crime, and Punishment, Marc Mauer seeks a balance between racial justice and public safety. In coming up with recommendations, he reviews the organization strategies employed by justice reform movements in the areas of crack cocaine reform, felony disenfranchisement, and racial impact statement legislation.99 Mauer opines that the issue of racial justice does not jeopardize advocacy efforts and recommends strategic flexibility.100 A significant portion of Mauers essay is devoted to discussing the inherent unfairness of federal crack cocaine mandatory sentencing policies that have had a disproportionate impact on African American communities.101 Since the release of Race, Crime, and Punishment, reform actions by the U.S. Sentencing Commission as to sentencing guidelines for crack offenses and the congressional passage of sentencing legislation have culminated in the Fair Sentencing Act of 2010, which reduced the sentencing disparity between powder cocaine and crack cocaine.102 Before the laws passage, a crime involving crack cocaine received a sentence of 100 times greater than that for powder cocaine.103 Now, that disparity has been reduced to 18 to 1.104 Part two of Race, Crime, and Punishment closes with Phil Thompsons call for expanding the focus of racially equitable justice reform. Of particular importance for Thompson is building coalitions and alliances with political and social groups and movements in shared collective efforts for justice.105 Along these lines, by not including Asian Americans in their analysis, Race, Crime, and

See Tracey Kaplan, A Call to Ease Three Strikes: Proposed Reform Less Sweeping Than the One Voters Rejected in 2004 as Being Soft on Crime, SAN JOSE MERCURY NEWS, Nov. 2, 2011, at 1B, available at 2011 WLNR 22736518. 99 See Marc Mauer, Advocacy for Racial Justice: Prospects for Criminal Justice Reform, in RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA 163, 164 (Keith O. Lawrence ed., The Aspen Institute 2011). 100 See Mauer, supra note 99, at 169-70. 101 See id. at 164. 102 Fair Sentencing Act of 2010, Pub. L. 111220, 2, 124 Stat. 2372, 2372 (2010). 103 John Schwartz, Drug Terms Reduced, Freeing Prisoners, N.Y. TIMES, Nov. 1, 2011, available at 104 Id. 105 See Phil Thompson, Mass Incarceration and Green Cities, in RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA 175-82 (Keith O. Lawrence ed., The Aspen Institute 2011).


100 Punishment misses a tremendous opportunity to discuss the possibility of coalition building between African Americans, Latinos, and Asian Americans, despite the cultural and class differences and the potential conflicts and impediments that could arise.106 For example, African Americans have been concerned with the negative impact of immigration in their community, and poor and working class African Americans worry about competition for low-skilled jobs.107 In higher education, Asian Americans might believe that they compete against African Americans and Latinos for admission slots.108 Yet collectively, African Americans, Latinos, and Asians are targets for racial profiling and subjects of the criminal justice system.109 Since racial justice is a universal cause, lessons can be learned from the litigation in other civil rights cases. Just as African American, Latino, and Asian American civil rights groups have joined together to preserve affirmative action110 in regards to samesex marriage issues111 and immigration issues,112 they can also form coalitions in the struggle for criminal justice reform.113

See, e.g., Kevin R. Johnson, The Struggle for Civil Rights: The Need For, and Impediments To, Political Coalitions Among and Within Minority Groups, 63 LA. L. REV. 759, 780 (2003); Karla Mari McKanders, Black and Brown Coalition Building During the Post-Racial Obama Era, 29 ST. LOUIS U. PUB. L. REV. 473, 487-88 (2010); Raul Carnevali, Multiculturalism: A Challenge for Modern Criminal Justice: A Latin American Perspective, 47 No. 2 CRIM. LAW BULLETIN Art 5 (2011); Frank H. Wu, The Limits of Borders: A Moderate Proposal for Immigration Reform, 7 STAN. L. & POLY REV. 35, 52-53 (1996) (describing potential political conflicts between African Americans, Asian Americans, and Latinos on issues, including affirmative action and immigration). 107 See Kevin R. Johnson, The Case for African American and Latina/o Cooperation in Challenging Racial Profiling in Law Enforcement, 55 FLA. L. REV. 341, 360 (2003). 108 See Harvey Gee, Changing Landscapes: The Need for Asian Americans to be Included in the Affirmative Action Debate, 32 GONZ. L. REV. 621, 627 (1997); Rachel F. Moran, What If Latinos Really Mattered in the Public Policy Debate?, 85 CAL. L. REV. 1315, 1326 (1997). 109 See Johnson, supra note 107, at 341. 110 Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007); Grutter v. Bollinger, 539 U.S. 306 (2003). 111 See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010). 112 See, e.g., Gentry v. Super. Ct. of L.A. County, 165 P.3d 556 (Cal. 2007); Strauss v. Horton, 207 P.3d 48 (Cal. 2009); see also Kevin R. Johnson, Racial Hierarchy, Asian Americans and Latinos as Foreigners, and Social Change: Is Law the Way to Go?, 76 OR. L. REV. 347, 357 (1997) (Asian Americans and Latinos have many common grievances. Political strategies and mutual efforts to combat those common evils and construct a more inclusive nation, which accords full



III. NEGOTIATING FOR A BETTER DEAL Part three of Race, Crime, and Punishment contains two closing essays by Keith Lawrence, including Changing the Public Common Sense about Crime and Punishment114 and Targeting Strategic Institutions and Movements for Intervention.115 Finally, part three ends with several ambitious proposals by the contributing authors.116 However, before they provide their recommendations for policy makers, they humbly acknowledge some potential hurdles that must be cleared before implementing any of their reform suggestions.117 The authors assert that Americans are avoiding an honest discussion about racism and classism in our justice system.118 Also, as discussed throughout the essays, they assert that the system is too reliant on criminal justice tools as a means to address social problems like poverty, unemployment, mental illness, substance abuse, educational underachievement, and homelessness.119 If those issues are addressed, the authors say, then maybe the following interrelated proposals stand a chance: (1) more innovative research and public education to reduce the salience of race in the political and popular culture; (2) new responses to crime that are appropriate to the seriousness of the crime; (3) the criminal justice system assisting offender re-integration into the community; (4) maintaining productive societal roles for ex-offenders; (5) shifting the focus from the prison industry to other industries; and (6) creating innovative alternatives to incarceration by linking innovations to new economic development initiatives, such as green programs and infrastructure
membership rights to all rather than simply those who fit the Anglo norm, would benefit both groups.). 113 See Johnson, supra note 112, at 357. 114 See Keith O. Lawrence, Changing the Public Common Sense about Crime and Punishment, in RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA 189 (Keith O. Lawrence ed., The Aspen Institute 2011). 115 See Keith O. Lawrence, Targeting Strategic Institutions and Movements for Intervention, in RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA 197 (Keith O. Lawrence ed., The Aspen Institute 2011). 116 A New Deal for Twenty-First-Century American Criminal Justice: A Proposal by the Open Society Foundations and The Aspen Institute Roundtable on Community Change, in RACE, CRIME, AND PUNISHMENT: BREAKING THE CONNECTION IN AMERICA 203 (Keith O. Lawrence ed., The Aspen Institute 2011). 117 Id. at 204. 118 Id. 119 Id.


102 investment.120 These suggestions come at a time when policy makers are seriously considering similar smart on crime approaches to criminal justice reform.121 There are also efforts by the Obama Administration to create innovative alternatives to incarceration that consider the interests of low-risk offenders and community safety.122 At the very least, this gives us optimism. CONCLUSION Overall, the collection of readable essays in Race, Crime and Punishment provides insightful analysis as to the shortcomings of current criminal policies. However, as discussed above, the essays could have tackled the challenges facing the criminal justice system more head-on had they extended beyond the particular themes of the book by (1) including Asian Americans in their discussions, (2) addressing some of the unique issues facing Latinos more fully, and (3) exploring the possibility of coalition building between communities of color. These are important issues that need to be discussed in any inclusive, serious conversation about how to repair the criminal justice system. Still, for the rich material that Race, Crime, and Punishment provides, it is a worthwhile read and provokes an important debate about race and justice.

120 121

See id. at 206-07. See Roger A. Fairfax, Jr., From Overcriminalization to Smart on Crime: American Criminal Justice ReformLegacy and Prospects, 7 J.L. ECON. & POLY 597, 610-11 (2011). 122 See OFFICE OF NATI DRUG CONTROL POLY, available at (last visited Mar. 28, 2012).