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Diversity Readings in Criminal Law

Mary Whisner. Updated Aug. 5, 2014.

This guide is part of a series of guides with readings about issues of race, class, gender, sexuality, and disability in traditional first-year courses.

Because the first-year Criminal Law course focuses on substantive law, rather than criminal procedure, this guide does as well. Still, it has a few entries on procedural topics.

A separate guide, Race in the Criminal Justice System, provides resources about racial disparities and disproportionality. It includes resources about Washington State and selected national works.

 


Criminal Law: General

David Cole, Two Systems of Criminal Justice, in The Politics of Law: A Progressive Critique 410-33 (David Kairys ed., 3d ed. 1998), KF8700 .P65 1998 at Reference Area

On its surface, the American criminal justice system is predicated on equality. . . . Yet at the same time, the American criminal justice system is predicated on race and class inequality.

p. 428

Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 Fordham L. Rev. 13- (1998), HeinOnline

Henry F. Fradella, Stephen S. Owen & Tod W. Burke, Integrating Gay, Lesbian, Bisexual, and Transgender Issues into the Undergraduate Criminal Justice Curriculum, 20 J. Crim. J. Educ. 127 (2009), HeinOnline

Abstract: Although criminal justice has made strides to incorporate issues of race, ethnicity, class, and gender into both research and teaching, the same cannot be said about issues of homosexuality. Prior research indicates criminal justice students are more homophobic than their peers in other majors and that bias against gay, lesbian, bisexual, and transgender (GLBT) persons continues in the criminal justice system. As a result, this article argues that criminal justice educators should integrate issues of sexuality into criminal justice curricula as part of diversity education within the discipline. Few programs currently do so. This article outlines four methods for infusing justice-related GLBT content into criminal justice classes, including: The teachable moment; incorporating GLBT-relevant material in required courses; incorporating GLBT-relevant material into diversity courses; and the development of new electives. These strategies can help combat heterosexism and homophobia.


Amy H. Kastely, Out of the Whiteness: On Raced Codes and White Race Consciousness in Some Tort, Criminal, and Contract Law, 63 U. Cin. L. Rev. 269-315 (1994), HeinOnline

Randall Kennedy, Race, Crime, and the Law (1997), KF9223 .K43 1997 at Classified Stacks

Various Authors, Race Trials Symposium, 91 N.C. L. Rev. No. 5 (June 2013), HeinOnline. Includes:

  • Anthony V. Alfieri, Keynote: "He Is the Darkey with the Glasses on": Race Trials Revisited" ... 1497
  • Richard Delgado, Precious Knowledge: State Bans on Ethnic Studies, Book Traffickers (Librotraficantes), and a New Type of Race Trial . . . 1513
  • Cynthia Lee, Making Race Salient: Trayvon Martin and Implicit Bias in a Not Yet Post-Racial Society . . . 1555
  • Kevin R. Johnson & Joanna E. Cuevas Ingram, Anatomy of a Modern-Day Lynching: The Relationship Between Hate Crimes AGainst Latina/os and the Debate Over Immigration Reform . . . 1613
  • Gabriel J. Chin, Cindy Hwang Chiang & Shirley S. Park, The Lost Brown v. Board of Education of Immigration Law . . . 1657
  • Ariela Gross & Alejandro de la Fuente, Slaves, Free Blacks, and Race in the Legal Regimes of Cuba, Louisiana, and Virginia: A Comparison . . . 1699
  • Martha S. Jones, Hughes v. Jackson: Race and Rights Beyond Dred Scott . . . 1757
  • Steven Lubet, Execution in Virginia, 1859: The Trials of Green and Copeland . . . 1785
  • Alfred L.Brophy, The Nat Turner Trials . . . 1817

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Bias Crimes

Megan Sullaway, The Psychology of Hate Crime Law, Victims, and Offenders, in Critical Race Realism: Intersections of Psychology, Race, and Law 235-45, 329-33 (Gregory S. Parks et al. eds., 2008), KF4755.C749 2008 at Classified Stacks


Criminal Procedure

Note: The first-year course addresses substantive criminal law rather than criminal procedure. So this list also focuses on substantive criminal law, but it does include some criminal procedure materials.

David C. Baldus et al., McCleskey v. Kemp (1987): Denial, Avoidance, and the Legitimization of Racial Discrimination in the Administration of the Death Penalty, in Death Penalty Stories 229-75 (John H. Blume & Jordan M. Steiker eds., 2009), KF9227.C2 D43 2009 at Reference Area.

Richard R.W. Brooks, Fear and Fairness in the City: Criminal Enforcement and Perceptions of Fairness in Minority Communities, in Critical Race Realism: Intersections of Psychology, Race, and Law 271-84, 335-37 (Gregory S. Parks et al. eds., 2008), KF4755.C749 2008 at Classified Stacks

Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677- (1995), HeinOnline , excerpted in Critical Race Theory: The cutting Edge 194-203 (Richard Delgado & Jean Stefancic eds., 2d ed. 2000), KF4755.C75 2000 at Classified Stacks

Sheri Lynn Johnson, Black Innocence and the White Jury, 83 Mich. L. Rev. 1611 (1985), LexisNexis, excerpted in Critical Race Theory: The Cutting Edge 152-62 (Richard Delgado & Jean Stefancic eds., 2d ed. 2000), KF4755.C75 2000 at Classified Stacks

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography): Studies the effects of racial prejudice on black defendants. Shows that prejudice does exist among jurors because black defendants consistently have higher conviction rates than similarly-situated whites when tried by white jurors. Examines current mechanisms designed to reduce racial biases of a jury, exposing some of the inadequacies inherent in the system. Proposes a plan for comprehensive protection for defendants of color against racially biased juries, by applying a "strict scrutiny standard."

Sheri Lynn Johnson, Confessions, Criminals and Community, 26 Harv. C.R.-C.L. L. Rev. 327 (1991). HeinOnline

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):
Examines the principle of voluntariness in criminal confessions and the rights guaranteed to all defendants. Juxtaposes the examination of rights with the debate raging in the CLS and CRT camps about listening to the voices of color. Argues that scholars should examine the area of criminal procedure to explore the rights afforded, but often denied, defendants, and, conversely, that scholars of criminal procedure and law should enter the rights debate. This cross-exploration could expand understanding of the function of criminal rights and bring illumination to the many violations of those rights.

Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934 (1984), LexisNexis

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography): Explores the phenomenon of cross-racial misidentification in which defendants of color are mistakenly identified as perpetrators of crimes that were actually committed by an unrelated person of color. Demonstrates that the incidence of misidentification increases sharply when the perpetrator is a person of color and the witness or victim belongs to the majority group. Criticizes the adequacy of current safeguards and proposes additional measures to protect persons of color from false identification.

Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 Yale L.J. 214 (1983), LexisNexis

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography): Studies the association between the race of a suspect and the decision by officers to detain that suspect. Demonstrates that race is often a crucial factor in that decision and that courts use race as a factor in establishing probable cause. Argues that the use of race as a factor in determining probable cause is unconstitutional and illustrates how "casually both probabilistic and equal protection constraints are violated."

Sheri Lynn Johnson, Unconscious Racism and the Criminal Law, 73 Cornell L. Rev. 1016 (1988), LexisNexis

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography): Argues that the Supreme Court has a "blindspot" in that it is unable to identify unconscious racism as the source of racial disparities in criminal law, particularly in capital cases. Presents possible reasons for this blindness, including ignorance, fear, and denial. Once these sources are recognized, the problem can be examined more closely, yielding tools and a base of information with which to eliminate unconscious [*497] racism in other areas of law, particularly equal protection analysis.

Michael J. Klarman, The Racial Origins of Modern Criminal Procedure, 99 Mich. L. Rev. 48 (2000), HeinOnline, SSRN

Abstract: This article takes a close look at four of the landmark criminal procedure cases of the 1920s and 1930s—Moore v. Dempsey, Powell v. Alabama, Norris v. Alabama, and Brown v. Mississippi. The article claims that it was no fortuity that modern criminal procedure originated in cases involving southern black defendants. For the Supreme Court to assume the function of superintending the state criminal process required a departure from a century and a half of tradition and legal precedent, both grounded in federalism concerns. The Justices were willing to take that leap only in cases of flagrant injustice--cases that by the 1920s and 1930s arose mainly in the South and involved black defendants charged with serious interracial crimes, usually rape or murder.

Part I makes three related points about these egregious exemplars of Jim Crow justice, which provided the occasion for the birth of modern criminal procedure. . . .

Part II evaluates the impact of these Supreme Court decisions, in terms of both the precise issues involved (e.g., black service on juries) and the general treatment of blacks in the southern criminal justice system. . . .

Part III connects these criminal procedure decisions to broader themes in constitutional and civil rights history, . . . .

Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333 (1998), HeinOnline

William T. Pizzi et al., The Influence of Criminal Defendants' Afrocentric Features on Their Sentences, in Critical Race Realism: Intersections of Psychology, Race, and Law 259-70, 334-35 (Gregory S. Parks et al. eds., 2008), KF4755.C749 2008 at Classified Stacks

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Defenses

Richard Delgado, "Rotten Social Background": Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?, 3 Law & Ineq. 9- (1985)

Cynthia Lee, The Gay Panic Defense, 42 U.C. Davis L. Rev. 471-566 (2008), HeinOnline, LexisNexis, SSRN, Westlaw

Abstract (from Sexual Orientation and the Law bibliography): The author examines the historical and doctrinal background of the "gay panic defense," a variety of strategies that suggest a criminal defendant should be excused or justified if his violent actions were in response to a (homo)sexual advance. Drawing lessons from the Matthew Shepard trial, this article supports generally permitting gay panic defense arguments, since they are less harmful when made to a jury in open court than when forced underground. It proposes strategies for prosecutors to minimize homophobic juror bias and foster enlightened deliberations.

Cynthia Kwei Yung Lee, Race and Self-Defense: Toward a Normative Conception of Reasonableness, 81 Minn. L. Rev. 367 (1996), HeinOnline, excerpted in Critical Race Theory: The Cutting Edge 204-10 (Richard Delgado & Jean Stefancic eds., 2d ed. 2000), KF4755.C75 2000 at Classified Stacks

Elizabeth M. Schneider, Battered Women, Feminist Lawmaking, Privacy, and Equality, in Women and the United States Constitution: History, Interpretation, and Practice 197, 201 (Sibyl A. Schwarzenbach & Patricia Smith eds., 2003).

Elizabeth Schneider, Battered Women Who Kill Their Abusers, 106 Harv. L. Rev. 1574- (1993), HeinOnline

Michael A. Smyth, Queers and Provocateurs: Hegemony, Ideology and the "Homosexual Advance" Defense, 40 Law & Soc'y Rev. 903-30 (2006), FindArticles.com (free), HeinOnline, LexisNexis, Westlaw

Abstract (from Sexual Orientation and the Law bibliography):
This article reviews 14 homicide cases in California from the years 1949 and 2000 that involved a "homosexual advance" defense. The author expostulates "four classic scripts of homosexuality" – the effeminate, the sick or mentally ill, sexually predatory, and violent, and considers how each figured in the homicide cases involving the homosexual advance defense. Finally, the prevalence of the four scripts in the popular press over the same time period is examined, and the author concludes that the scripts have survived longer in the legal setting than in the popular culture.

Susan S. Kuo, Culture Clash: Teaching Cultural Defenses in the Criminal Law Classroom, 48 St. Louis L.J. 1297-1311 (2004), LexisNexis

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Domestic Violence

Melissa Hamilton, The Intersection of Gender and Sexuality on Arrest Outcomes for Intimate Partner Violence, (July 2, 2007), SSRN

Elizabeth M. Schneider, Battered Women and Feminist Lawmaking, 23 Women's Rts. L. Rep. 243 (2002), HeinOnline

Kathleen Waits, The Criminal Justice System's Response to Battering: Understanding the Problem, Forging the Solutions, 60 Wash. L. Rev. 267- (1985), HeinOnline, excerpted in Feminist Jurisprudence 188-209 (Patricia Smith ed. 1993), K644.Z9 F457 1993 at Classified Stacks


Drug Policy

Dwight L.Greene, Abusive Prosecutors: Gender, Race & Class Discretion and the Prosecution of Drug-Addicted Mothers, 39 Buff. L. Ref. 737 (1991), HeinOnline

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):
Criticizes the lack of information available on prosecutorial discretion, a mechanism that often leads to gender and race biases in choosing which suspects are prosecuted. The plight of mothers of color who are prosecuted for delivering drugs to their unborn children is highlighted as an area that is particularly prone to bias. Advocates creation of Prosecutorial Research, Information, and Reporting Boards that would gather information on prosecutorial discretion and provide a means of minimizing the effects of bias in this area.

Dwight L. Greene, Drug Decriminalization: A Chorus in Need of Masterrap's Voice, 18 Hofstra L. Rev. 457 (1990), LexisNexis

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):
Develops a taxonomy of the four major approaches to drug policy ranging from decriminalization to increased reliance on the criminal [*490] law. Critiques these policies from certain perspectives of the disenfranchised through the voice of a partially fictionalized man of color, a New York Dominican named Masterrap. Concludes most current approaches to drug policy are ineffective and antidemocratic because they fail to take into account key constituents in communities of color, particularly young males, drug-sellers and users, and their families.

powell, john a. & Eileen B. Hershenov, Hostage to the Drug War: The National Purse, the Constitution and the Black Community, 24 U.C. Davis L. Rev. 557 (1991), HeinOnline

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):
Argues that the Reagan and Bush administrations' war on drugs has been a failure. Demonstrates that the law-and-order approach has served to turn many poor communities into occupied territories. Argues that the disproportionate number of black men prosecuted for drug-related crimes is evidence that arrests target the black community and are a form of institutionalized racism. Urges that problems associated with drug abuse be addressed primarily as a health rather than a crime problem.

Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev. 1419 (1991), LexisNexis

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):
Examines the current trend of prosecuting women for using drugs during pregnancy. Demonstrates that this trend in prosecution weighs heavily on poor black women, who are much more likely than others to be reported to government authorities. Argues that this higher incidence must be challenged as a perpetuation of black subjugation and the devaluation of black motherhood. Holds that women of color cannot achieve equality unless their humanity is ensured by autonomy over their reproductive lives.

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Racial Profiling

Roger G. Dunham and George Wilson, Prejudice and Police Profiling, in Critical Race Realism: Intersections of Psychology, Race, and Law 246-58 (Gregory S. Parks et al. eds., 2008), KF4755.C749 2008 at Classified Stacks

Randall Kennedy, Suspect Policy: Racial Profiling by the Police Isn't Necessarily Motivated by Bigotry, New Republic, Sept. 13 & 20, 1999, at 30-35

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Rape

Michele Alexandre, "Girls Gone Wild" and Rape Law: Revising the Contractual Concept of Consent & Ensuring an Unbiased Application of "Reasonable Doubt" When the Victim is Non-Traditional, 17 Am. U. J. Gender, Soc. Pol'y & L. 41-79 (2009), HeinOnline

Kevin Brown, The Social Construction of a Rape Victim: Stories of African-American Males About the Rape of Desiree Washington, 1992 U. ILL. L. Rev. 997-

Joshua Dressler, Criminal Law, Moral Theory, and Feminism: Some Reflections on the Subject and on the Fun (and Value) of Courting Controversy, 48 St. Louis U. L.J. 1143-66 (2004), HeinOnline

  • Discussing his three favorite criminal law topics to teach, the author "noticed certain commonalities: (1) two of the topics allow me to sensitize my students to moral theories of criminal responsibility and punishment, and to show even the most pragmatic of my students why they should care about these theories;2 (2) they are all hot-button topics that regularly get students excited and agitated; (3) relatedly, all three topics involve feminist challenges to prevailing (or once prevailing) law, and (4) although I am sympathetic to many feminist goals, I disagree in part with feminist critiques in these areas and I enjoy expressing those doubts in class." p. 1144.
  • Topics are: provocation, battered women self-defense, rape


Susan Estrich, Rape, 95 Yale L.J. 1087-1184 (1986), HeinOnline, JSTOR, excerpted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reproduction 431-54 (D. Kelly Weisberg ed., 1996), K349.A67 1996 at Classified Stacks, and in Feminist Jurisprudence 158-87 (Patricia Smith ed. 1993), K644.Z9 F457 1993 at Classified Stacks

This Article examines rape within the criminal law tradition in order to expose and understand that tradition's attitude toward women. It is, first and foremost, a study of rape law as an illustration of sexism in the criminal law. A second purpose is to examine the connections between the law as written by legislators, as understood by courts, as acted upon by victims, and as enforced by prosecutors. Finally, this Article is an argument for an expanded understanding of rape in the law.

p. 1090

This article was one of the first to use a personal narrative in addition to traditional legal analysis. It was startling to have a law professor open an article in the Yale Law Journal with "Eleven years ago, a man held an ice pick to my throat . . ."

Estrich later published the article as a book: Susan Estrich, Real Rape (1987), Classified Stacks (KF9329 .E87 1987)

Susan Estrich, Teaching Rape Law, 102 Yale L. J. 509 (1992), HeinOnline

Susan Griffin, Rape: The All-American Crime, Ramparts Magazine, Sept. 1971, at 26-35, reprinted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reproduction 422-30 (D. Kelly Weisberg ed., 1996), K349.A67 1996 at Classified Stacks

Aya Gruber, Rape, Feminism, and the War on Crime, 84 Wash. L. Rev. 581- (2009), HeinOnline, Westlaw

Abstract: Over the past several years, feminism has been increasingly associated with crime control and the incarceration of men. . . . [F]eminists have advocated a host of reforms to strengthen state power to punish gender-based crimes. . . . [T]he time is ripe for feminists to reassess continued involvement in rape reform. This Article cautions feminists to weigh carefully any purported benefits of reform against the considerable philosophical and practical costs of criminalization strategies . . . . [T]he Article systematically catalogues the existing intra-feminist critiques of rape reform and discusses reasons why these critiques have proven relatively ineffective at reversing the punitive course of reform. The Article then crafts a separate philosophical critique of pro-prosecution approaches by exposing the tension between the basic tenets of feminism and those animating the modern American penal state. Finally, it discusses why purported cultural and utilitarian benefits from rape reform cannot outweigh the destructive effect criminalization efforts have on feminist discourse and the feminist message. The Article concludes that feminists should begin the complicated process of disentangling feminism's important stance against sexual coercion from a criminal justice system currently reflective of hierarchy and unable to produce social justice.

Lynn Huffer, Queer Victory, Feminist Defeat? Sodomy and Rape in Lawrence v. Texas, in Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations 410-31 (Martha Albertson Fineman et al. eds., 2009), K349.F455 2009 at Classified Stacks

Catharine A. MacKinnon, Rape: On Coercion and Consent, in Applications of Feminist Theory to Women's Lives: Sex, Violence, Work, and Reproduction 471-83 (D. Kelly Weisberg ed., 1996), Classified Stacks (K349.A67 1996) (excerpting Catharine A. MacKinnon, Toward a Feminist Theory of the State (1989), Classified Stacks (K644 .M33 1989))

If sexuality is central to women's definition and forced sex is central to sexuality, rape is indigenous, not exceptional to women's social condition.

p. 471

Kevin C. McMunigal, Reducing the Risks and Realizing the Rewards: An Approach to Teaching Rape Law, 34 San Diego L. Rev. 519 (1997), HeinOnline

Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 Tex. L. Rev. 387-432 (1984), HeinOnline, excerpted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reproduction 460-70 (D. Kelly Weisberg ed., 1996), Classified Stacks (K349.A67 1996), and excerpted in Feminist Legal Theory: Readings in Law and Gender 305-17 (Katharine T. Bartlett & Rosanne Kennedy eds., 1991), Classified Stacks (K644.Z9 F46 1991)

This Article focuses primarily upon the rights debate, but it also necessarily implicates the debate about sexuality. It uses statutory rape laws to examine rights analysis and the critique of rights in a concrete context and to evaluate the relevance of both to women's struggles. I have chosen this example for two reasons: first, statutory rape laws raise in a rich context issues of equal protection, paternalistic protection, sexuality, and privacy; second, the Supreme Court upheld a gender-based statutory rape provision three years ago in Michael M. v. Superior Court, a decision that has generated a good deal of scholarly comment. The feminist criticism of the case illustrates both the appeal of rights analysis and its very serious limitations. Parts II and III survey feminist attitudes toward rights and toward statutory rape laws. Part IV analyzes Michael M. and demonstrates the negative effects the case has had upon feminist use of rights theory and upon feminist analysis of sexuality. Part V speculates about new approaches to sexuality and the legal problems associated with it.

p. 390 (footnotes omitted)

Lois Pineau, Date Rape: A Feminist Analysis, 8 Law & Phil. 217-43 (1989), JSTOR, excerpted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reproduction 484-94 (D. Kelly Weisberg ed., 1996), K349.A67 1996 at Classified Stacks

James J. Tomkovicz, On Teaching Rape: Reasons, Risks, and Rewards, 102 Yale L. J. 481 (1992), HeinOnline

Robin West, Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment, 42 Fla. L. Rev. 45- (1990), HeinOnline, excerpted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reporduction 511-27 (D. Kelly Weisberg ed., 1996), Classified Stacks (K349.A67 1996)

Jennifer Wriggins, Rape, Racism and the Law, 6 Harv. Women's L.J. 103-41 (1983), HeinOnline, excerpted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reproduction 495-510 (D. Kelly Weisberg ed., 1996), Classified Stacks (K349.A67 1996)

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