Issue 8

Criminal Violations

Violations of community supervision are major drivers of incarceration. Nearly four million people in the United States are serving terms of probation, parole, or supervised release, and one-third of them are eventually found in violation of a condition of their supervision, sending 350,000 people to prison each year. To reduce incarceration rates, criminal justice reformers have called for lower sentences for non-criminal “technical violations,” such as missed meetings, skipped curfews, etc.

In this Article, I offer the first comprehensive analysis of “criminal violations,” the other half of cases where people violate their supervision by committing new crimes. Based on an original empirical study of U.S. Sentencing Commission data and an examination of federal case law, I make three novel observations. First, despite the popular focus on technical violations, criminal violations are the primary drivers of punishment via revocation of supervised release, accounting for at least two-thirds of the total prison time imposed. Second, while technical violations punish non-criminal behavior, criminal violations drive punishment by increasing sentences for criminal convictions and making punishing crimes easier. Third, the immigration crime of illegal reentry accounts for as many as one-third of all revocations for felony violations, revealing that supervised release is no longer just a program of surveillance or support but also has become a tool of immigration enforcement.

Finally, after describing revocations for criminal violations in the federal criminal justice system, I argue that punishing criminal violations inflicts unfair double punishment and erodes constitutional rights. When defendants on supervised release commit new crimes, the better and fairer response is to prosecute them without revoking their supervision. The law of revocation opens an exception to the ordinary rules of criminal prosecution, which the federal government has generalized into a powerful engine of imprisonment.

Introduction

Violations of community supervision are major drivers of incarceration.1 1.Cf. Press Release, Phila. Dist. Att’y’s Off., New Philadelphia D.A.O. Policies Announced Mar. 21, 2019 to End Mass Supervision (Mar. 21, 2019), https://medium.com/philadelphia-justice/philadelphia-daos-policies-to-end-mass-supervision-fd5988cfe1f1 [https://perma.cc/7​M3F-2U24] (“Mass supervision is a major driver of mass incarceration.”).Show More Almost four million people in the United States are on probation, parole, or supervised release.2 2.Danielle Kaeble, U.S. Dep’t of Just., Probation and Parole in the U.S., 2020, at 1 (2021), https://bjs.ojp.gov/content/pub/pdf/ppus20.pdf [https://perma.cc/9RRN-7TVM].Show More One-third of them are eventually found in violation of their supervision, sending 350,000 people to prison each year and accounting for 45% of state prison admissions and 25% of the nation’s prison population.3 3.Adam Gelb, Juliene James, Amy Solomon & Brian Elderbroom, The PEW Charitable Trs., Probation and Parole Systems Marked by High Stakes, Missed Opportunities 9 (2018), https://www.pewtrusts.org/-/media/assets/2018/09/probation_and_parole_systems_marked_​by_high_stakes_missed_opportunities_pew.pdf [https://perma.cc/F4G4-AC2Z]; Council of State Gov’t Just. Ctr., Confined and Costly: How Supervision Violations Are Filling Prisons and Burdening Budgets (2019), https://csgjusticecenter.org/wp-content/uploads/2020/01/co​nfined-and-costly.pdf [https://perma.cc/QVS2-NN4L].Show More A coalition of probation and parole officials recently warned that “mass supervision” was contributing to “mass incarceration,” because, “[f]ar from being an aid to community reintegration as originally designed, community supervision too often serves as a tripwire to imprisonment, creating a vicious cycle of reincarceration.”4 4.See Statement on the Future of Probation & Parole in the United States, EXiT: Execs. Transforming Prob. & Parole (Nov. 13, 2020), https://www.exitprobationparole.org/statement [https://perma.cc/D2NF-5YJV].Show More

To reduce incarceration rates, criminal justice reformers have called for lower sentences for non-criminal “technical violations” like missing meetings with the probation officer, skipping curfew, or filing late paperwork.5 5.See Alex Roth, Sandhya Kajeepeta & Alex Boldin, Vera Inst. of Just., The Perils of Probation: How Supervision Contributes to Jail Populations 29 (2021), https://www.ve​ra.org/downloads/publications/the-perils-of-probation.pdf [https://perma.cc/T9H8-YG5D] (advocating for “eliminating incarceration for technical violations”); Reagan Daly, Mackenzie Deary, Victoria Lawson & Pavithra Nagarajan, CUNY Inst. for State & Loc. Governance, Pathways to Success on Probation: Lessons Learned from the First Phase of the Reducing Revocations Challenge 30–31 (2021), https://static1.squarespace.com/static/5fcea962a1b4d​771ad256fcc/t/61707b8a29d1471381fbcce8/1634761610960/10192021+Reducing+Revocations+v4.pdf [https://perma.cc/K9X3-QB8F] (recommending “limit[ing] the circumstances under which formal technical violations can be filed”); Tonja Jacobi, Song Richardson & Gregory Barr, The Attrition of Rights Under Parole, 87 S. Cal. L. Rev. 887, 930 (2014) (arguing “prison even for technical violations . . . is problematic”); Cecelia Klingele, Rethinking the Use of Community Supervision, 103 J. Crim. L. & Criminology 1015, 1047 (2013) (supporting “barring revocation as a sanction for many noncriminal violations”); see also Vincent Schiraldi, Explainer: How ‘Technical Violations’ Drive Incarceration, The Appeal (Mar. 23, 2021), https://theappeal.org/the-lab/explainers/explainer-how-technical-violations-drive-incarceration/[https://perma.cc/8ZTH-WGYA]; Andrea Fenster, Technical Difficulties: D.C. Data Shows How Minor Supervision Violations Contribute to Excessive Jailing, Prison Pol’y Initiative (Oct. 28, 2020), https://www.prisonpolicy.org/b​log/2020/10/28/dc_technical_violations [https://perma.cc/U5PX-N2Y5] (same); Stephen Handelman, Recidivism’s Hidden Drivers: ‘Technical Violations’ of Probation or Parole, The Crime Rep. (Mar. 5, 2020), https://web.archive.org/web/20200927112600/https://thec​rimereport.org/2020/03/05/the-hidden-driver-of-recidivism-technical-violations-of-probation​-or-parole/ [https://perma.cc/G2AB-ZE7Z] (same); Eli Hager, At Least 61,000 Nationwide Are in Prison for Minor Parole Violations, The Marshall Project (Apr. 23, 2017, 10:00 PM), https://www.themarshallproject.org/2017/04/23/at-least-61-000-nationwide-are-in-prison-for-minor-parole-violations [https://perma.cc/F6NB-RFX4] (same).Show More In 2019, Philadelphia District Attorney Larry Krasner announced an “effort to . . . bring balance back to sentencing” by limiting sentencing recommendations for technical violations to between thirty and sixty days’ imprisonment.6 6.Press Release, Phila. Dist. Att’y’s Off., supra note 1.Show More The year after, lawmakers from three states joined with Professors Lara Bazelon and Shon Hopwood to propose legislation reorienting community supervision toward “rehabilitative, rather than surveillance, goals” by eliminating punishment “for asserted technical violations (i.e. violations that are non-criminal in nature).”7 7.Lara Bazelon, Shon Hopwood, Jehan Gordon-Booth, Leslie Herod & Sydney Kamlager, The Just. Collaborative Sent’g Taskforce, Sample Legislation on Probation 7 (2020), https://30glxtj0jh81xn8rx26pr5af-wpengine.netdna-ssl.com/wp-content/uploads/2020/12/20.​10_Model-Policy-for-Probation-1.pdf [https://perma.cc/378H-XECN]; see also Klingele, supra note 5, at 1047–49 (describing legislative efforts to reduce punishments for technical violations).Show More Even the staid U.S. Sentencing Commission recently announced a plan to reexamine how the federal sentencing guidelines “treat revocations . . . for conduct constituting a violation . . . that does not result in an arrest, criminal charge, or conviction,”8 8.Final Priorities for Amendment Cycle, 83 Fed. Reg. 43956, 43956–57 (Aug. 28, 2018).Show More explaining that it had “received comment over the years regarding the impact of revocations, much of which focused on the impact of technical violations.”9 9.Tracey Kyckelhahn & S. Alexander Maisel, U.S. Sent’g Comm’n, Revocations Among Federal Offenders 13 (2019), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2019/20190131_Revocations.pdf [https://perma.cc/5742-T3TQ].Show More

The outcry over technical violations is understandable. Approximately half of all revocations are for technical violations, yet by definition this behavior is not ordinarily considered worthy of incarceration.10 10.Council of State Gov’t Just. Ctr., supra note 3.Show More By imprisoning people for non-criminal conduct, technical violations widen “the net of criminal social control.”11 11.Marcy R. Podkopacz & Barry C. Field, The Back-Door to Prison: Waiver Reform, “Blended Sentencing,” and the Law of Unintended Consequences, 91 J. Crim. L. & Criminology 997, 1070 (2001).Show More In practice, moreover, perfect compliance with the conditions of supervision is difficult, if not impossible,12 12.See Daly et al., supra note 5, at 15; ACLU Hum. Rts. Watch, Revoked: How Probation and Parole Feed Mass Incarceration in the U.S. 3 (2020), https://www.aclu.org/report/aclu-and-hrw-report-revoked-how-probation-and-parole-feed-mass-incarceration-united-states [https://perma.cc/TY3L-YD8F].Show More and penalizing minor infractions may encourage recidivism rather than reintegration.13 13.Carrie Pettus-Davis & Stephanie Kennedy, Inst. for Just. Rsch. and Dev., Going Back to Jail Without Committing a Crime: Early Findings from a Multi-State Trial 3 (2020), https://ijrd.csw.fsu.edu/sites/g/files/upcbnu1766/files/media/images/publication_pdfs/Going_Back_to_Jail.pdf [https://perma.cc/Y2Z8-RVLZ].Show More Finally, defendants charged with technical violations seem the most sympathetic—and therefore the most likely to win popular support for reform.14 14.As Professor Cecelia Klingele observed, the distinction between criminal and technical violations does not always reflect “the severity of the conduct.” Klingele, supra note 5, at 1049. Minor crimes like “[d]isorderly conduct” may not “signify a true threat to the community,” while technical violations like a “pedophile who stalks the playground” can “involve dangerous behavior.” Id.Show More

Concentrating on technical violations, however, misses a major piece of the story: the other half of revocations based on new criminal conduct,15 15.Cf. Council of State Gov’t Just. Ctr., supra note 3 (reporting that technical violations account for approximately half of all state prison admissions for probation and parole revocations); Daly et al., supra note 5, at 20 (reporting that technical violations account for between 61% and 90% of all petitions to revoke probation in some jurisdictions).Show More which I refer to in this Article as “criminal violations.” By state and federal law, every term of community supervision includes a condition requiring that the defendant not commit another crime,16 16.See, e.g., 18 U.S.C. § 3583(d) (federal supervised release); id. § 3563(a) (federal probation); id. § 4209(a) (1982) (federal parole); Fiona Doherty, Obey All Laws and Be Good: Probation and the Meaning of Recidivism, 104 Geo. L.J. 291, 301 (2016) (state probation); see also Neil P. Cohen, The Law of Probation and Parole § 8:1 (2021) (“Probation and parole orders routinely contain a condition which, written in general terms, prohibits offenders from violating the law. . . . This condition appears in both federal and state probation and parole requirements.”).Show More which Professor Fiona Doherty has described as the “obey all laws” condition of supervision.17 17.Doherty, supra note 16, at 301–02.Show More If a person on probation, parole, or supervised release engages in new criminal activity, then the government can revoke their supervision and imprison them as punishment for their criminal violation.18 18.See infra Section II.B.Show More

Until now, there has been little to no research on how criminal violations drive punishment. In 2021, researchers from the CUNY Institute for State and Local Government published a study on probation revocations in ten U.S. counties, reporting that “technical violations—those issued purely for noncompliance . . . that do not involve new criminal activity”—range from 61% to 90% of all violations filed in some jurisdictions.19 19.Daly et al., supra note 5, at 9, 20.Show More By implication, of course, the remaining 10% to 39% of violations must have been for new criminal conduct. The study observed that these “new crime” violations were more likely to end in revocation than were technical violations, yet it was “not clear . . . what types of new crimes are tied to revocations.”20 20.Id. at 20, 32.Show More The authors highlighted “new crime” violations as an “important question to be further explored in future research,” emphasizing that their “prevalence” made “addressing them . . . critical for significantly reducing revocations overall.”21 21.Id. at 32.Show More

The popular focus on technical violations is akin to the well-meaning but limited calls for reducing punishment of “nonviolent drug offenders.”22 22.James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America 220 (2017).Show More As Professor James Forman, Jr., has explained, “America’s incarceration rates for nonviolent drug offenders are unprecedented and morally outrageous, but they are not ‘the real reason our prison population is so high.’”23 23.Id. at 228.Show More In reality, what drives mass incarceration are long sentences for violent crimes.24 24.See John Pfaff, Decarceration’s Blindspots, 16 Ohio St. J. Crim. L. 253, 265 (2019).Show More Even if the United States released every prisoner convicted of a non-violent drug offense, it still would have the largest prison population in the world.25 25.Forman, supra note 22, at 228.Show More

Just like emphasizing nonviolent drug offenders, focusing only on technical violations is understandable yet incomplete. Punishments for non-criminal technical violations may be excessive or even unfair, yet they account for only half of all revocations. Even if the government stopped punishing technical violations entirely, punishments for criminal violations would still drive up to half of all revocations in some jurisdictions.26 26.See Council of State Gov’t Just. Ctr., supra note 3 (reporting that technical violations account for approximately half of all state prison admissions for probation and parole revocations); Daly et al., supra note 5, at 20 (reporting that technical violations account for between 61% and 90% of all petitions to revoke probation in some jurisdictions).Show More To understand the connection between community supervision and mass incarceration, therefore, we must study the role of criminal violations.

To be clear: I am not suggesting that technical violations are unimportant because they result in less prison time. Even a short prison sentence “inflicts a ‘grievous loss’”27 27.Morrissey v. Brewer, 408 U.S. 471, 482 (1972).Show More that may “imperil [a person’s] job, interrupt his source of income, and impair his family relationships.”28 28.Gerstein v. Pugh, 420 U.S. 103, 114 (1975).Show More I also recognize that people under supervision who commit new crimes are not conventionally sympathetic.29 29.Johnson v. United States, 529 U.S. 694, 709–10 (2000) (describing violators as “problem case[s] among problem cases”).Show More Nevertheless, federal judges revoke supervised release and send people to prison for criminal violations in tens of thousands of cases every year and impose hundreds of thousands of months of imprisonment. Criminal violations are thus a critical issue in supervision law and policy that deserve our attention and respect.

In this Article, I offer the first comprehensive analysis of how criminal violations drive punishment, focusing on the federal system of supervised release.30 30.I do not address probation, which is community supervision in lieu of imprisonment. See 18 U.S.C. § 3561(a); U.S. Sent’g Guidelines Manual § 7A2(a) (U.S. Sent’g Comm’n 2018). Probation is reserved for less serious crimes and imposed in less than 10% of cases. See 18 U.S.C. § 3561(a); U.S. Sent’g Comm’n, 2019 Annual Report and Sourcebook of Federal Sentencing Statistics 61 fig.6 (2019), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2019/2019-Annual-Report-and-Sourcebook.pdf. [https://perma.cc/AJ5N-TU7A].Show More The federal supervision system is a good example because it is one of the ten largest in the country31 31.See Doherty, supra note 16, at 298–300.Show More and “inevitably acts as a model, both positive and negative, for developments in the states.”32 32.See Frank O. Bowman, III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315, 1318, 1320 (2005).Show More Information on federal supervision violations is also publicly available. In July 2020, the U.S. Sentencing Commission published a report on federal supervision violations, which “[f]or the first time” made available “data collected from documents related to revocation hearings,” including a database of 108,115 revocation hearings in federal district courts between 2013 and 2017.33 33.U.S. Sent’g Comm’n, Federal Probation and Supervised Release Violations 1, 12–13 (2020) [hereinafter Violations], https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2020/20200728_Violations.pdf. [https://perma.cc/J3VH-B9T2].Show More Because federal courts ordinarily “do not use a standardized reporting system for sentences imposed following violations,” the Commission’s revocation database offers an extraordinary opportunity for understanding this subterranean layer of the federal criminal justice system.34 34.Id. at 12. Unfortunately, the Commission only collected data on the five years between 2013 to 2017, so we remain in the dark on revocations outside this time frame.Show More

Through an original empirical study of the revocation database and examination of federal case law, I sought to answer three basic questions about how criminal violations drive punishment: (1) How much incarceration is attributable to criminal violations? (2) What is the function of criminal violations in the federal criminal justice system? And (3) What is the most commonly punished criminal violation? In answering these questions, I uncovered significant problems in the law of revocation, which led me to ask a fourth question: Is revoking supervised release for criminal violations justified or fair?

Part I of this Article reviews the law and history of supervised release. Part II describes my empirical and legal analysis of revocations for criminal violations in the federal system, which found they drive two-thirds of the total prison time imposed by increasing sentences for criminal convictions and making punishment easier for the government. Part III presents my analysis showing that the immigration crime of illegal reentry is one of the most commonly punished criminal violations and revealing that supervised release has become part of the “crimmigration” system. Part IV argues that revoking supervised release for criminal violations inflicts unfair double punishment and erodes constitutional rights, and therefore prosecution without revocation is a better and fairer way to punish crimes committed under community supervision. Finally, the Conclusion suggests that the law of revocation opens an exception to the ordinary rules of prosecution, which the U.S. Supreme Court, the Sentencing Commission, and the U.S. Department of Justice have generalized into a major engine of imprisonment.

  1. Cf. Press Release, Phila. Dist. Att’y’s Off., New Philadelphia D.A.O. Policies Announced Mar. 21, 2019 to End Mass Supervision (Mar. 21, 2019), https://medium.com/philadelphia-justice/philadelphia-daos-policies-to-end-mass-supervision-fd5988cfe1f1 [https://perma.cc/7​M3F-2U24] (“Mass supervision is a major driver of mass incarceration.”). ↑
  2. Danielle Kaeble, U.S. Dep’t of Just., Probation and Parole in the U.S., 2020, at 1 (2021), https://bjs.ojp.gov/content/pub/pdf/ppus20.pdf [https://perma.cc/9RRN-7TVM]. ↑
  3. Adam Gelb, Juliene James, Amy Solomon & Brian Elderbroom, The PEW Charitable Trs., Probation and Parole Systems Marked by High Stakes, Missed Opportunities 9 (2018), https://www.pewtrusts.org/-/media/assets/2018/09/probation_and_parole_systems_marked_​by_high_stakes_missed_opportunities_pew.pdf [https://perma.cc/F4G4-AC2Z]; Council of State Gov’t Just. Ctr., Confined and Costly: How Supervision Violations Are Filling Prisons and Burdening Budgets (2019), https://csgjusticecenter.org/wp-content/uploads/2020/01/co​nfined-and-costly.pdf [https://perma.cc/QVS2-NN4L]. ↑
  4. See Statement on the Future of Probation & Parole in the United States, EXiT: Execs. Transforming Prob. & Parole (Nov. 13, 2020), https://www.exitprobationparole.org/statement [https://perma.cc/D2NF-5YJV]. ↑
  5. See Alex Roth, Sandhya Kajeepeta & Alex Boldin, Vera Inst. of Just., The Perils of Probation: How Supervision Contributes to Jail Populations 29 (2021), https://www.ve​ra.org/downloads/publications/the-perils-of-probation.pdf [https://perma.cc/T9H8-YG5D] (advocating for “eliminating incarceration for technical violations”); Reagan Daly, Mackenzie Deary, Victoria Lawson & Pavithra Nagarajan, CUNY Inst. for State & Loc. Governance, Pathways to Success on Probation: Lessons Learned from the First Phase of the Reducing Revocations Challenge 30–31 (2021), https://static1.squarespace.com/static/5fcea962a1b4d​771ad256fcc/t/61707b8a29d1471381fbcce8/1634761610960/10192021+Reducing+Revocations+v4.pdf [https://perma.cc/K9X3-QB8F] (recommending “limit[ing] the circumstances under which formal technical violations can be filed”); Tonja Jacobi, Song Richardson & Gregory Barr, The Attrition of Rights Under Parole, 87 S. Cal. L. Rev. 887, 930 (2014) (arguing “prison even for technical violations . . . is problematic”); Cecelia Klingele, Rethinking the Use of Community Supervision, 103 J. Crim. L. & Criminology 1015, 1047 (2013) (supporting “barring revocation as a sanction for many noncriminal violations”); see also Vincent Schiraldi, Explainer: How ‘Technical Violations’ Drive Incarceration, The Appeal (Mar. 23, 2021), https://theappeal.org/the-lab/explainers/explainer-how-technical-violations-drive-incarceration/[https://perma.cc/8ZTH-WGYA]; Andrea Fenster, Technical Difficulties: D.C. Data Shows How Minor Supervision Violations Contribute to Excessive Jailing, Prison Pol’y Initiative (Oct. 28, 2020), https://www.prisonpolicy.org/b​log/2020/10/28/dc_technical_violations [https://perma.cc/U5PX-N2Y5] (same); Stephen Handelman, Recidivism’s Hidden Drivers: ‘Technical Violations’ of Probation or Parole, The Crime Rep. (Mar. 5, 2020), https://web.archive.org/web/20200927112600/https://thec​rimereport.org/2020/03/05/the-hidden-driver-of-recidivism-technical-violations-of-probation​-or-parole/ [https://perma.cc/G2AB-ZE7Z] (same); Eli Hager, At Least 61,000 Nationwide Are in Prison for Minor Parole Violations, The Marshall Project (Apr. 23, 2017, 10:00 PM), https://www.themarshallproject.org/2017/04/23/at-least-61-000-nationwide-are-in-prison-for-minor-parole-violations [https://perma.cc/F6NB-RFX4] (same). ↑
  6. Press Release, Phila. Dist. Att’y’s Off., supra note 1. ↑
  7. Lara Bazelon, Shon Hopwood, Jehan Gordon-Booth, Leslie Herod & Sydney Kamlager, The Just. Collaborative Sent’g Taskforce, Sample Legislation on Probation 7 (2020), https://30glxtj0jh81xn8rx26pr5af-wpengine.netdna-ssl.com/wp-content/uploads/2020/12/20.​10_Model-Policy-for-Probation-1.pdf [https://perma.cc/378H-XECN]; see also Klingele, supra note 5, at 1047–49 (describing legislative efforts to reduce punishments for technical violations). ↑
  8. Final Priorities for Amendment Cycle, 83 Fed. Reg. 43956, 43956–57 (Aug. 28, 2018). ↑
  9. Tracey Kyckelhahn & S. Alexander Maisel, U.S. Sent’g Comm’n, Revocations Among Federal Offenders 13 (2019), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2019/20190131_Revocations.pdf [https://perma.cc/5742-T3TQ]. ↑
  10. Council of State Gov’t Just. Ctr., supra note 3. ↑
  11. Marcy R. Podkopacz & Barry C. Field, The Back-Door to Prison: Waiver Reform, “Blended Sentencing,” and the Law of Unintended Consequences, 91 J. Crim. L. & Criminology 997, 1070 (2001). ↑
  12. See Daly et al., supra note 5, at 15; ACLU Hum. Rts. Watch, Revoked: How Probation and Parole Feed Mass Incarceration in the U.S. 3 (2020), https://www.aclu.org/report/aclu-and-hrw-report-revoked-how-probation-and-parole-feed-mass-incarceration-united-states [https://perma.cc/TY3L-YD8F]. ↑
  13. Carrie Pettus-Davis & Stephanie Kennedy, Inst. for Just. Rsch. and Dev., Going Back to Jail Without Committing a Crime: Early Findings from a Multi-State Trial 3 (2020), https://ijrd.csw.fsu.edu/sites/g/files/upcbnu1766/files/media/images/publication_pdfs/Going_Back_to_Jail.pdf [https://perma.cc/Y2Z8-RVLZ]. ↑
  14. As Professor Cecelia Klingele observed, the distinction between criminal and technical violations does not always reflect “the severity of the conduct.” Klingele, supra note 5, at 1049. Minor crimes like “[d]isorderly conduct” may not “signify a true threat to the community,” while technical violations like a “pedophile who stalks the playground” can “involve dangerous behavior.” Id. ↑
  15. Cf. Council of State Gov’t Just. Ctr., supra note 3 (reporting that technical violations account for approximately half of all state prison admissions for probation and parole revocations); Daly et al., supra note 5, at 20 (reporting that technical violations account for between 61% and 90% of all petitions to revoke probation in some jurisdictions). ↑
  16. See, e.g., 18 U.S.C. § 3583(d) (federal supervised release); id. § 3563(a) (federal probation); id. § 4209(a) (1982) (federal parole); Fiona Doherty, Obey All Laws and Be Good: Probation and the Meaning of Recidivism, 104 Geo. L.J. 291, 301 (2016) (state probation); see also Neil P. Cohen, The Law of Probation and Parole § 8:1 (2021) (“Probation and parole orders routinely contain a condition which, written in general terms, prohibits offenders from violating the law. . . . This condition appears in both federal and state probation and parole requirements.”). ↑
  17. Doherty, supra note 16, at 301–02. ↑
  18. See infra Section II.B. ↑
  19. Daly et al., supra note 5, at 9, 20. ↑
  20. Id. at 20, 32. ↑
  21. Id. at 32. ↑
  22. James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America 220 (2017). ↑
  23. Id. at 228. ↑
  24. See John Pfaff, Decarceration’s Blindspots, 16 Ohio St. J. Crim. L. 253, 265 (2019). ↑
  25. Forman, supra note 22, at 228. ↑
  26. See Council of State Gov’t Just. Ctr., supra note 3 (reporting that technical violations account for approximately half of all state prison admissions for probation and parole revocations); Daly et al., supra note 5, at 20 (reporting that technical violations account for between 61% and 90% of all petitions to revoke probation in some jurisdictions). ↑
  27. Morrissey v. Brewer, 408 U.S. 471, 482 (1972). ↑
  28. Gerstein v. Pugh, 420 U.S. 103, 114 (1975). ↑
  29. Johnson v. United States, 529 U.S. 694, 709–10 (2000) (describing violators as “problem case[s] among problem cases”). ↑
  30. I do not address probation, which is community supervision in lieu of imprisonment. See 18 U.S.C. § 3561(a); U.S. Sent’g Guidelines Manual § 7A2(a) (U.S. Sent’g Comm’n 2018). Probation is reserved for less serious crimes and imposed in less than 10% of cases. See 18 U.S.C. § 3561(a); U.S. Sent’g Comm’n, 2019 Annual Report and Sourcebook of Federal Sentencing Statistics 61 fig.6 (2019), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2019/2019-Annual-Report-and-Sourcebook.pdf. [https://perma.cc/AJ5N-TU7A]. ↑
  31. See Doherty, supra note 16, at 298–300. ↑
  32. See Frank O. Bowman, III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315, 1318, 1320 (2005). ↑
  33. U.S. Sent’g Comm’n, Federal Probation and Supervised Release Violations 1, 12–13 (2020) [hereinafter Violations], https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2020/20200728_Violations.pdf. [https://perma.cc/J3VH-B9T2]. ↑

  34. Id. at 12. Unfortunately, the Commission only collected data on the five years between 2013 to 2017, so we remain in the dark on revocations outside this time frame. ↑

Life or Death: Employing State Constitutional Principles of Proportionality to Combat the Extreme Sentencing of Emerging Adults

The U.S. Supreme Court has repeatedly held that, when facing criminal punishment, juvenile offenders must be treated differently from adults. Because those under the age of eighteen lack maturity, have heightened vulnerability to external influence, and possess a unique capacity for rehabilitation, the imposition of extreme sentences—including the death penalty, mandatory life without parole, and discretionary life without parole for non-homicide offenses—is disproportionate and unconstitutional under the Eighth Amendment.

Emerging neuroscientific research strongly indicates that the immaturity, impressionability, and corrigibility of juveniles are also characteristics of emerging adults, defined here as individuals ages eighteen through twenty. Courts, however, have consistently resisted extending Federal Eighth Amendment protections to this demographic. This Note therefore proposes challenging the extreme sentencing of emerging adults under state, instead of federal, constitutional law. All fifty states prohibit cruel and/or unusual punishment, or its equivalent, in their state constitution. Further, recent litigation in Washington and Illinois demonstrates how successful challenges to disproportionate emerging-adult sentencing under state constitutional law can be achieved. This Note advocates that litigants launch facial challenges, in particular, under state constitutional provisions as a desirable mechanism for change.

Introduction

In 2015, Jonas David Nelson was convicted of first-degree murder for the premeditated shooting of his father.1 1.Nelson v. State, 947 N.W.2d 31, 33 (Minn. 2020), cert. denied, 141 S. Ct. 2518 (2021).Show More On the day of the offense, Mr. Nelson was eighteen years and one week old.2 2.Id.Show More He was subsequently sentenced to a mandatory term of life imprisonment without the possibility of parole, in accordance with Minnesota law.3 3.Id. at 34.Show More Despite the fact that the record was “replete with evidence of [Mr.] Nelson’s cognitive and social delays and years of psychological and emotional abuse,”4 4.Id. at 40.Show More the Minnesota Supreme Court upheld his mandatory-life-without-parole sentence on both direct appeal and upon request for postconviction relief.5 5.Id. at 34, 40.Show More As powerfully noted by Justice Chutich in dissent, Mr. Nelson was given “the functional equivalent of a death sentence, without any consideration of him, his personality, his upbringing, or his psychological attributes, solely because the offense occurred seven days after his eighteenth birthday.”6 6.Id.at 41 (Chutich, J., dissenting).Show More

The U.S. Supreme Court has repeatedly held that, when facing criminal punishment, juvenile offenders—i.e., those under the age of eighteen—must be treated differently from adults.7 7.See, e.g.,Roper v. Simmons, 543 U.S. 551, 572 (2005) (describing the “differences between juvenile and adult offenders” as “marked and well understood” and thus holding unconstitutional the imposition of the death penalty on juvenile offenders).Show More Juveniles lack maturity, have heightened vulnerability to external influence, and possess a unique capacity for rehabilitation.8 8.SeeinfraPart I.Show More Given this reality, the imposition of extreme sentences—including the death penalty, mandatory life without parole (“LWOP”), and discretionary LWOP for non-homicide offenses—on juveniles in criminal court is disproportionate and unconstitutional under the Eighth Amendment.9 9.The Supreme Court has held that sentencing a juvenile to death, Roper, 543 U.S. at 574–75, as well as imposing discretionary LWOP for non-homicide offenses, Graham v. Florida, 560 U.S. 48, 82 (2010), and mandatory LWOP for any offense, Miller v. Alabama, 567 U.S. 460, 479 (2012), violates the Eighth Amendment to the U.S. Constitution.Show More But these constitutional protections cease to exist the day one turns eighteen. Despite referring to Mr. Nelson’s case as “extremely tragic,” the Minnesota Supreme Court felt bound to follow U.S. Supreme Court precedent that “clearly limited [Eighth Amendment protection] to juvenile offenders under the age of 18 at the time of the offense.”10 10.Nelson, 947 N.W.2d at 40 (emphasis added).Show More Had Mr. Nelson been eight days younger, the mandatory LWOP sentence that he received would have been unconstitutional as applied to him.

Emerging neuroscientific research, however, strongly indicates that the hallmark characteristics of youth—immaturity, impressionability, and corrigibility—are present in individuals older than eighteen, too.11 11.See infra Subsection II.B.1.Show More Cognitive development continues well into a young person’s twenties, and society recognizes the relative immaturity of this demographic through prohibitions on activities such as drinking and firearm possession.12 12.SeeElizabeth S. Scott, Richard J. Bonnie & Laurence Steinberg, Young Adulthood as a Transitional Legal Category: Science, Social Change, and Justice Policy, 85 Fordham L. Rev. 641, 645 (2016); Karen U. Lindell & Katrina L. Goodjoint, Juv. L. Ctr., Rethinking Justice for Emerging Adults: Spotlight on the Great Lakes Region 11–12 (2020), https://jlc.org/sites/default/files/attachments/2020-09/JLC-Emerging-Adults-9-2.pdf [https://perma.cc/U8GG-PBR9].Show More As a consequence, the proportionality considerations relevant for those under eighteen are arguably as compelling for “emerging adults”—defined here as those ages eighteen, nineteen, and twenty—as they are for juveniles. Despite this reality, emerging adults have not been granted protection against the harshest of criminal sentences under the Federal Constitution, and claims of disproportionality under the Eighth Amendment have been universally quashed.13 13.See infra Part III.Show More Given the current composition of the Supreme Court, seeking federal constitutional protection against disproportionately harsh sentences for emerging adults seems futile.14 14.See infra Part III.Show More The more effective realm for such advocacy, this Note posits, is in the states.

This Note proposes that advocates redirect focus and challenge the extreme sentencing of emerging adults as disproportionate under state, instead of federal, constitutional law. All fifty states prohibit cruel and/or unusual punishment, or its equivalent, in their state constitutions.15 15.See infraSection IV.A.Show More Further, many have interpreted these clauses to be broader and more protective than the Federal Eighth Amendment.16 16.See infra Section IV.A.Show More Attention should therefore be directed toward challenging extreme sentences for emerging adults under these provisions.

Recent litigation in Washington and Illinois illustrates how this can be achieved. In 2021, the Washington Supreme Court held that imposing mandatory-LWOP sentences on those ages eighteen through twenty violates the state’s constitutional provision against cruel punishment.17 17.See infra Section IV.B.Show More Over the last few years, Illinois state courts have also struck down the harshest criminal sentences as applied to emerging adults, holding that they violate the state constitution’s proportionate penalties clause.18 18.See infra Section IV.C.Show More Challenging emerging-adult sentencing in these ways is a promising strategy for future advocacy efforts across the country.

The contributions of this Note are threefold. First, while theories about emerging adulthood have existed for two decades, they have only recently been argued in court.19 19.SeeJeffrey J. Arnett, Emerging Adulthood: A Theory of Development from the Late Teens Through the Twenties, 55 Am. Psych. 469, 469 (2000).Show More This Note comprehensively surveys recent cases from both state and federal courts and synthesizes the arguments that have—and have not—been successful, a notable contribution to the literature. Second, academics and scholars have advocated generally for the consideration of proportionality in sentencing20 20.See, e.g., Jim Staihar, Proportionality and Punishment, 100 Iowa L. Rev. 1209, 1222–23 (2015) (arguing that those who commit more serious crimes deserve more severe punishments).Show More and explored how state constitutional provisions could be utilized to further such aims.21 21.See, e.g., Gregory S. Schneider, Sentencing Proportionality in the States, 54 Ariz. L. Rev. 241, 273–74 (2012) (discussing how state judiciaries could engage in proportionality review under state constitutional law).Show More However, none have applied these principles to the extreme sentencing of emerging adults, and this Note will be the first to advocate for such a path forward nationwide. Finally, the power of state constitutional law is significantly underappreciated in academic literature,22 22.SeeGary S. Gildin & Jamison E. Colburn, Introduction: State Constitutionalism in the 21st Century, 115 Pa. St. L. Rev. 779, 781 (2011) (“State constitutional law is a vibrant, albeit still underappreciated, area of legal study.”); Richard S. Frase, Limiting Excessive Prison Sentences Under Federal and State Constitutions, 11 U. Pa. J. Const. L. 39, 64 (2008) (encouraging “litigators, courts, and scholars to be less ‘Fed-centric’”).Show More despite the fact that it has profound and direct impact on those prosecuted in state courts across the nation. This Note contributes to the academic conversation by explaining how state constitutional law can be used as a powerful tool to inspire positive, tangible change, helping advocates structure their thinking and supplying them with arguments for state court practice.

This argument proceeds in five Parts. Part I considers proportionality as a philosophical concept, documenting its use in federal constitutional law to date, and reviews the Supreme Court’s Eighth Amendment jurisprudence as it relates to juveniles. Part II explains why the Supreme Court has remained faithful to the age of eighteen as a cutoff for constitutional protection against extreme sentencing but challenges the justifications provided by the Court in light of modern developments in neuroscience and social science. Part III surveys the failed efforts to gain federal constitutional protection for emerging adults, and Part IV explains why the most effective route forward for emerging adult justice will instead be under state constitutional law, highlighting Washington and Illinois as case studies of success. Part V recommends that litigants seek facial, as opposed to as-applied, protection of emerging adults and addresses counterarguments to that proposal.

  1. Nelson v. State, 947 N.W.2d 31, 33 (Minn. 2020), cert. denied, 141 S. Ct. 2518 (2021). ↑
  2. Id. ↑
  3. Id. at 34. ↑
  4. Id. at 40. ↑
  5. Id. at 34, 40. ↑
  6. Id. at 41 (Chutich, J., dissenting). ↑
  7.  See, e.g., Roper v. Simmons, 543 U.S. 551, 572 (2005) (describing the “differences between juvenile and adult offenders” as “marked and well understood” and thus holding unconstitutional the imposition of the death penalty on juvenile offenders). ↑
  8. See infra Part I. ↑
  9. The Supreme Court has held that sentencing a juvenile to death, Roper, 543 U.S. at 574–75, as well as imposing discretionary LWOP for non-homicide offenses, Graham v. Florida, 560 U.S. 48, 82 (2010), and mandatory LWOP for any offense, Miller v. Alabama, 567 U.S. 460, 479 (2012), violates the Eighth Amendment to the U.S. Constitution. ↑
  10. Nelson, 947 N.W.2d at 40 (emphasis added). ↑
  11. See infra Subsection II.B.1. ↑
  12. See Elizabeth S. Scott, Richard J. Bonnie & Laurence Steinberg, Young Adulthood as a Transitional Legal Category: Science, Social Change, and Justice Policy, 85 Fordham L. Rev. 641, 645 (2016); Karen U. Lindell & Katrina L. Goodjoint, Juv. L. Ctr., Rethinking Justice for Emerging Adults: Spotlight on the Great Lakes Region
    11–12 (2020),

    https://jlc.org/sites/default/files/attachments/2020-09/JLC-Emerging-Adults-9-2.pdf [https://perma.cc/U8GG-PBR9]

    .

    ↑

  13. See infra Part III. ↑
  14. See infra Part III. ↑
  15. See infra Section IV.A. ↑
  16. See infra Section IV.A. ↑
  17. See infra Section IV.B. ↑
  18. See infra Section IV.C. ↑
  19. See Jeffrey J. Arnett, Emerging Adulthood: A Theory of Development from the Late Teens Through the Twenties, 55 Am. Psych. 469, 469 (2000). ↑
  20. See, e.g., Jim Staihar, Proportionality and Punishment, 100 Iowa L. Rev.
    1209, 1222–23 (2015) (

    arguing that those who commit more serious crimes deserve more severe punishments)

    .

    ↑

  21. See, e.g., Gregory S. Schneider, Sentencing Proportionality in the States, 54 Ariz. L. Rev. 241, 273
    –7

    4 (2012) (discussing how state judiciaries could engage in proportionality review under state constitutional law). ↑

  22. See Gary S. Gildin & Jamison E. Colburn, Introduction: State Constitutionalism in the 21st Century, 115 Pa. St. L. Rev. 779, 781 (2011) (“State constitutional law is a vibrant, albeit still underappreciated, area of legal study.”); Richard S. Frase, Limiting Excessive Prison Sentences Under Federal and State Constitutions, 11 U. Pa. J. Const. L.

    39

    , 64 (2008) (encouraging “litigators, courts, and scholars to be less ‘Fed-centric’”). ↑

White Injury and Innocence: On the Legal Future of Antiracism Education

In the wake of the “racial reckoning” of 2020, antiracism education attracted intense attention and prompted renewed educator commitments to teach more explicitly about the function, operation, and harm of racism in the United States. The increased visibility of antiracism education engendered sustained critique and opposition, resulting in executive orders prohibiting its adoption in the federal government, the introduction or adoption of over sixty state-level bills attempting to control how race is taught in schools, and a round of lawsuits challenging antiracism education as racially discriminatory. Because antiracism so directly runs afoul of norms underlying American antidiscrimination law, including anticlassification, colorblindness, and white innocence, antiracism education is vulnerable to legal challenge in a way that precursors like multi-culturalism were not. The vulnerability of antiracism education to constitutional censure is the most recent illustration of how far antidiscrimination law has gone not in undercutting, but further entrenching, racial hierarchy in the United States. The legislative, litigation, and curricular wars surrounding antiracism education also remind us that race is significant for reasons that go beyond materiality. Rather, legal and social discourse about racism shapes notions of racial injury and ultimately impedes efforts to respond to even the material consequences of enduring racial inequality. Tracking and analyzing the anti-antiracism legislation and lawsuits provides those who are willing to follow it a map both to where antidiscrimination law must be changed, and to where antiracism education is most needed.

Introduction

In June of 2021, a student testified before his school board in Lakeville, Minnesota. In what surely was stirring testimony coming from a child so young, nine-year-old N.W. stated:

I do not judge people by the color of their skin, I don’t really care what color their hair, skin, or eyes is [sic]. I judge by the way they treat me . . . I do not care or look at the color of skin, but you make me think of it. I have Asian, Mexican, white, Chinese, black [sic] friends and I don’t care . . . They are just my friends. You have lied to me and I am very disappointed in all of you.1 1.Complaint at 3, Cajune v. Indep. Sch. Dist. 194, 2022 WL 179517 (D. Minn. Aug. 6, 2021) (No. 0:21-cv-01812) (first alteration in original).Show More

The “lies” to which N.W. referred purportedly came from antiracism initiatives adopted in Independent School District 194 and included an “Inclusive Poster Series” which approved the statement “At Lakeville Area Schools we believe Black Lives Matter and stand with the social justice movement this statement represents.”2 2.Id. at 1.Show More In the lawsuit parents and students brought challenging these initiatives, plaintiffs focused on the district’s efforts to “instruct[] children as young as fifth grade that structural racism dominates” American society.3 3.Id. at 3.Show More

The Lakeville testimony and accompanying lawsuit are but one flashpoint in a larger movement challenging antiracism (also referred to as “anti-racist”) teachings and curricular initiatives in schools across the country. Although antiracism education has a long history, in the wake of George Floyd’s murder in the summer of 2020, its teachings attracted intense attention and elicited renewed commitments among educators to teach more explicitly about the function, operation, and harm of racism in the United States. Opposition to antiracism education, however, eventually became a political rallying cry for conservative politicians and policymakers. Reframing the teachings as the deployment of critical race theory (“CRT”) in K–12 curricula, pundits and politicians sounded alarms regarding this sort of education, prompting censure, even, by former President Donald Trump in the fall of 2020.4 4.Michael Crowley, Trump Calls for ‘Patriotic Education’ to Defend American History from the Left, N.Y. Times (Sept. 17, 2020), https://www.nytimes.com/2020/09/17/us/politics/trump​-patriotic-education.html [https://perma.cc/K56W-F7Z2]; see Evan Gerstmann, Trump Says He Will Punish Schools that Teach the New York Times’ ‘1619’ Project by Withholding Federal Funds, Forbes (Sept. 6, 2020), https://www.forbes.com/sites/evangerstmann/2020/09/​06/trump-says-he-will-punish-schools-that-teach-the-new-york-times-1619-project-by-withh​olding-federal-funds/?sh=4a241ca17cb5 [https://perma.cc/YDN3-8DSM].Show More

That critical race theory is a graduate-level, methodological interrogation of race not taught at the primary and secondary level is of no consequence.5 5.Critical race theory is a race-based systemic interrogation of legal reasoning, doctrine, and institutions, taught in law schools but also used in other disciplines. Although it overlaps with other legal subjects that implicate race, it is distinct from subjects like constitutional law, immigration law, and criminal law in its comprehensive examination of the function of race in American law. While CRT considers some of the same issues and problems that civil rights and ethnic studies courses engage, the theory broadens the methodological perspective, bringing in history, economics, and group- and self-interest, among other discourses. In a departure from traditional civil rights work, CRT questions the foundations of liberalism, including legal theories regarding equality, the mechanics of legal reasoning, and principles of constitutional law. Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 3 (2001).Show More The phrase “critical race theory” has become shorthand for education that teaches students about structural or institutional racism, prompts children to consider their social identities, or makes explicit commitments to educational equity—the essential work of antiracism education. And through legislation, parent advocacy, and litigation, antiracism education is under attack.

Observers might be tempted to dismiss the attacks as a temporary political strategy, and indeed, there are suggestions that politicians understand these attacks to be useful for energizing voters. Nevertheless, the scope of the challenges, as well as the issues they raise in litigation, compel parents, policymakers, and legal scholars to consider the nature of antiracist education and the social and legal responses to its inclusion in K–12 education.

Fully considering antiracism education reveals it to be both less and more threatening than supposed. Less because at its core are basic lessons about race and individual responses to injustice that should not conflict with a social6 6.Jennifer L. Hochschild & Nathan Scovronick, The American Dream and the Public Schools 1–2 (2003) (arguing that most Americans understand education as a place where children will reach their full potential and become good citizens).Show More and jurisprudential7 7.See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (explaining that schools educate the young for citizenship); New Jersey v. T.L.O., 469 U.S. 325, 373 (1985) (Stevens, J., concurring in part and dissenting in part) (noting that schools are places to inculcate the values essential to meaningful exercise of the rights and responsibilities of a self-governing citizenry); Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (recognizing that education is “the very foundation of good citizenship” and “a principal instrument in awakening the child to cultural values”); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35–36 (1973) (“Exercise of the franchise . . . cannot be divorced from the educational foundation of the voter.”).Show More understanding of schools as sites for cultivating citizenship and instilling the practices of democracy. Antiracism education, however, is also more threatening because it attempts to reveal and interrogate racial hierarchies—a problem for those who either deny those hierarchies or believe them to be justified. Further, to the extent that antiracism education explicitly names whites as beneficiaries of racism, it is also a frontal assault on “innocent” white racial identity—a commitment which is implicit throughout equal protection jurisprudence,8 8.See infra notes 203–08 and accompanying text.Show More and is now made explicit in the vociferous challenges to antiracism education.

Ultimately, the reaction to antiracism education illustrates just how deeply invested Americans are, wittingly and unwittingly, in white supremacy, how disorienting it can feel to individuals to destabilize racial hierarchy, and how far antidiscrimination law has gone not in undercutting, but in further entrenching, these attitudes and norms. Because antiracism so directly runs afoul of norms underlying American antidiscrimination law, including anticlassification, colorblindness, and white innocence, antiracism education is vulnerable to legal challenge in a way that precursors like multi-culturalism were not.

Litigation challenges are still developing. Some lawsuits will ultimately be dismissed on account of pleading defects, while other suits may be resolved on freedom of expression grounds. Nevertheless, closely examining the antidiscrimination legal framework within which challenges to antiracism education will play out presents an opportunity not only to reconsider those frameworks, but to think more broadly about the nature of race, particularly as it operates in school settings.

Racial equality work is sometimes critiqued as excessively invested in psychic harm, language, and symbols,9 9.See, e.g., Wendy Brown, Wounded Attachments, 21 Pol. Theory 390, 398, 403 (1993) (“[I]nsofar as [identity politics is] premised on exclusion from a universal ideal, [politicized identities] require that ideal, as well as their exclusion from it, for their own perpetuity as identities. . . . [I]dentity structured by this ethos becomes deeply invested in its own impotence, even while it seeks to assuage the pain of its powerlessness through its vengeful moralizing, through its wide distribution of suffering, through its reproach of power as such.”).Show More instead of more properly focused on the material sources and consequences of racial inequality. Epitomized by the writing of a scholar like Cedric Johnson, the critique maintains that antiracism education and racial affinity movements, despite having brought the marginalization of Black civilians to the forefront of public consciousness, have moved the United States no closer to “concrete, substantive reform.”10 10.Cedric Johnson, The Panthers Can’t Save Us Now, Catalyst: A Journal of Theory & Strategy (Spring 2017), https://catalyst-journal.com/2017/11/panthers-cant-save-us-cedric-johnson#po-fn. [https://perma.cc/737Z-KVU7].Show More As Johnson insists, what is needed instead is a “popular, anti-capitalist politics, rooted in situated class experiences.”11 11.Id.Show More In the context of public education, this critique might demand equalized resources rather than diversity training.

To be sure, the ways in which material inequality informs racial inequality is key to realizing substantive equality for all Americans. That disparities in wealth and income make Black Americans vulnerable to heightened rates of incarceration,12 12.Nathaniel Lewis, Mass Incarceration: New Jim Crow, Class War, or Both?, People’s Pol’y Project (Jan. 30, 2018), https://www.peoplespolicyproject.org/wp-content/uploads/2018/01/​MassIncarcerationPaper.pdf [https://perma.cc/TF53-RV5J] (arguing that the primary reason for the large gap between black and white incarceration rates is the differences in class composition of each racial group).Show More abusive policing,13 13.U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department 3, 42 (2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04​/ferguson_police_department_report.pdf [https://perma.cc/E7MP-8MGH] (documenting municipal court practices that exact harsh penalties and fines in an attempt to sustain the city’s budget); Campbell Robertson, A City Where Policing, Discrimination and Raising Revenue Went Hand in Hand, N.Y. Times (Mar. 4, 2015), https://www.nytimes.com/2015/03/05/us/us-details-a-persistent-pattern-of-police-discrimination-in-a-small-missouri-city.html [https://pe​rma.cc/QV4J-DJQL] (documenting the “reflexive and gratuitous hostility [of Ferguson police] toward black residents that goes beyond arrests into routine uses of force”).Show More more dangerous neighborhoods,14 14.See, e.g., Chaeyoung Cheon, Yuzhou Lin, David J. Harding, Wei Wang & Dylan S. Small, Neighborhood Racial Composition and Gun Homicides, 3 JAMA Network Open 1, 1–2 (2020) (suggesting that lack of institutional resources and opportunities created by racial wealth gaps and underinvestment subject Black people to higher gun homicide rates in their neighborhoods, even after controlling for individual socioeconomic status).Show More and inferior health and social services15 15.See, e.g., Tiffiany Howard, Marya Shegog, DeaJiane McNair & Mikale Lowery, Black Health and Black Wealth: Understanding the Intricate Linkages Between Income, Health, and Wealth for African Americans 7–8, 14 (2019) (finding that while income dictates access to high nutrient food and healthier neighborhoods, lack of wealth contributes to intergenerational insecurity that corresponds with negative health outcomes).Show More is well-documented. In education, public school financing, anchored in local tax bases themselves shaped by residential segregation, housing discrimination, redlining, and blockbusting, continues to limit the tax pool from which majority-minority schools can draw. A 2019 study, for example, found that non-white school districts received $23 billion less in funding than did white schools, and that for every student enrolled, non-white school districts received $2,226 less than did white districts.16 16.$23 Billion, EdBuild 4, app. A (2019), https://edbuild.org/content/23-billion/full-report.pdf [https://perma.cc/AX8H-R5FL].Show More Accordingly, there have long17 17.See Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 487–92 (1976) (documenting the resistance of civil rights organizations like LDF to strategies that deemphasized integration, even after it became obvious that alternatives to desegregation, like genuinely equal funding for black schools, should have been considered in the face of white resistance and in response to the requests of Black parents).Show More been warranted calls for the redistribution of resources as a solution to the education gap, particularly in the wake of a failed integration project and the resegregation of American public schools by race.18 18.Proceeding from the assumption that a segregated school is one where less than 40 percent of students are white, the number of schools where less than forty percent of students are white approximately doubled between 1996 and 2016, while the percentage of children of color attending such schools rose from fifty-nine to sixty-six percent. The percentage of Black students, in particular, attending segregated schools rose from fifty-nine to seventy-one percent. Will Stancil, School Segregation Is Not a Myth, The Atlantic (Mar. 14, 2018), https://www.theatlantic.com/educati​on​/archive/2018/03/school-segregation-is-not-a-myth​/555614/ [https://perma.cc/6ZCF-YWF​J]; Gary Orfield, Erica Frankenberg, Jongyeon Ee & John Kuscera, Brown at 60: Great Progress, a Long Retreat and an Uncertain Future, Civil Rights Project 10 tbl.3 (2014), https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/br​own-at-60-great-progress-a-long-retreat-and-an-uncertain-future/Brown-at-60-051814.pdf [https://perma.cc/86WC-VWY2] (documenting a long-term trend toward resegregation); Alvin Chang, The Data Proves that School Segregation Is Getting Worse, Vox (Mar. 5, 2018), https://www.vox.com/2018/3/5/17080218/school-segregation-getting-worse-data [https://perma.cc/TPK8-EQPM] (explaining that Black students are increasingly isolated in poor, segregated neighborhoods).Show More

Nevertheless, the curricular wars surrounding antiracism education remind us that the ideology of race still functions in less concrete, but no less powerful, ways. Race and racial disparities are more than just material, more than new classroom supplies and equitable teacher salaries. Rather, race is also about psychic harm. Part of that psychic harm is certainly in the story that material inequalities tell: that children of color deserve less because they are valued less. But harm also stems from the national mythologies we construct about race, and the ways in which those mythologies dictate our responses to inequality, legal and otherwise. Our national story about the end of racism as the result of a victorious civil rights movement has impeded efforts to engage institutional bias and systemic oppression. Our national story about innocent white identity has obstructed efforts to interrogate racial hierarchy and adopt solutions necessary to dismantle racial stratification.

Our mythologies about race have also set baselines for the conception of racial harm. Indeed, the ways in which society collectively understands the nature of racial injury will dictate the very remedies we choose to address racialized material disparities if we choose to do so at all. The narrative regarding racial injury dictated by antidiscrimination law tells Americans that the harm of homogenous classrooms for whites is a compelling interest justifying race-conscious remedies, but societal discrimination leveled against Black students is not. Exclusion from elite education in the absence of race-conscious admissions policies is not an equal protection violation, but the de minimis19 19.See Neil S. Siegel, Race-Conscious Student Assignment Plans: Balkanization, Integration, and Individualized Consideration, 56 Duke L.J. 781, 807 n.112 (2006) (explaining that affirmative action programs lead to a “modest decrease” in white students’ chances of being admitted); Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 Mich. L. Rev. 1045, 1046 (2002) (describing the “common yet mistaken” belief that when white applicants are denied admission in preference of minority applicants with equal or lesser qualifications, the cause is affirmative action).Show More harm to “innocent” whites from affirmative action is. The repeated and consistent exposure of Black students to racial epithets in required reading is not a harm recognized by equal protection.20 20.See, e.g., Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1024, 1029, 1032 (9th Cir. 1998) (concluding that the required reading that included over two hundred instances of racial slurs regarding Black people did not run afoul of equal protection).Show More But, as illustrated by the emerging round of legal opposition to antiracism education, teaching students about how whites benefit from whiteness in a racialized society is a cognizable harm because it might make students “feel bad.”

These asymmetric narratives regarding injury are central to maintaining racial hierarchy. Accordingly, it is no surprise that politicians and parents are so heavily invested in the outcome, for nothing less than racial status is at stake in the battle for what we teach young people about race. Though dismissal of all anti-antiracism education legislation and lawsuits is possible, the opportunity that current antidiscrimination law provides plaintiffs to present antiracism education as racist education is a reminder of the symbolic import of race, a red flag regarding inversions in racial injury, and a troubling sign of equality jurisprudence’s instability.

Part I considers the form and function of antiracism education, considering its basic tenets, documenting its rise in prominence, and noting the critiques antiracist education prompts. Part II engages the legal responses to antiracism education, from legislation intended to undermine it to lawsuits that challenge it as an affront to civil rights and equality. Given both conceptual and instrumental differences between antiracism education and the multicultural education curricula that came before it, antiracism education is particularly vulnerable to attack under current antidiscrimination norms and doctrine. Part III considers the ways in which antidiscrimination law creates, protects, and increasingly centers “innocent” white racial identity and closes with a reminder of the importance of K–12 schools as sites for understanding race and racial subordination in the United States.

  1. Complaint at 3, Cajune v. Indep. Sch. Dist. 194, 2022 WL 179517 (D. Minn. Aug. 6, 2021) (No. 0:21-cv-01812) (first alteration in original). ↑
  2. Id. at 1. ↑
  3. Id. at 3. ↑
  4. Michael Crowley, Trump Calls for ‘Patriotic Education’ to Defend American History from the Left, N.Y. Times
    (

    Sept. 17, 2020), https://www.nytimes.com/2020/09/17/us/politics/trump​-patriotic-education.html [https://perma.cc/K56W-F7Z2]; see Evan Gerstmann, Trump Says He Will Punish Schools that Teach the New York Times’ ‘1619’ Project by Withholding Federal Funds, Forbes (Sept. 6, 2020), https://www.forbes.com/sites/evangerstmann/2020/09/​06/trump-says-he-will-punish-schools-that-teach-the-new-york-times-1619-project-by-withh​olding-federal-funds/?sh=4a241ca17cb5 [https://perma.cc/YDN3-8DSM]. ↑

  5. Critical race theory is a race-based systemic interrogation of legal reasoning, doctrine, and institutions, taught in law schools but also used in other disciplines. Although it overlaps with other legal subjects that implicate race, it is distinct from subjects like constitutional law, immigration law, and criminal law in its comprehensive examination of the function of race in American law. While CRT considers some of the same issues and problems that civil rights and ethnic studies courses engage, the theory broadens the methodological perspective, bringing in history, economics, and group- and self-interest, among other discourses. In a departure from traditional civil rights work, CRT questions the foundations of liberalism, including legal theories regarding equality, the mechanics of legal reasoning, and principles of constitutional law. Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 3 (2001). ↑
  6. Jennifer L. Hochschild & Nathan Scovronick
    ,

    The American Dream and the Public Schools 1–2 (2003) (arguing that most Americans understand education as a place where children will reach their full potential and become good citizens). ↑

  7. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (explaining that schools educate the young for citizenship); New Jersey v. T.L.O., 469 U.S. 325, 373 (1985) (Stevens, J., concurring in part and dissenting in part) (noting that schools are places to inculcate the values essential to meaningful exercise of the rights and responsibilities of a self-governing citizenry); Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (recognizing that education is “the very foundation of good citizenship” and “a principal instrument in awakening the child to cultural values”); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35–36 (1973) (“Exercise of the franchise . . . cannot be divorced from the educational foundation of the voter.”). ↑
  8. See infra notes 203–08 and accompanying text. ↑
  9. See, e.g., Wendy Brown, Wounded Attachments, 21 Pol. Theory 390, 398, 403 (1993) (“[I]nsofar as [identity politics is] premised on exclusion from a universal ideal, [politicized identities] require that ideal, as well as their exclusion from it, for their own perpetuity as identities. . . . [I]dentity structured by this ethos becomes deeply invested in its own impotence, even while it seeks to assuage the pain of its powerlessness through its vengeful moralizing, through its wide distribution of suffering, through its reproach of power as such.”). ↑
  10. Cedric Johnson, The Panthers Can’t Save Us Now, Catalyst: A Journal of Theory & Strategy (Spring 2017), https://catalyst-journal.com/2017/11/panthers-cant-save-us-cedric-johnson#po-fn. [https://perma.cc/737Z-KVU7]. ↑
  11. Id. ↑
  12. Nathaniel Lewis, Mass Incarceration: New Jim Crow, Class War, or Both?, People’s Pol’y Project (Jan. 30, 2018), https://www.peoplespolicyproject.org/wp-content/uploads/2018/01/​MassIncarcerationPaper.pdf [https://perma.cc/TF53-RV5J] (arguing that the primary reason for the large gap between black and white incarceration rates is the differences in class composition of each racial group). ↑
  13. U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department 3, 42 (2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04​/ferguson_police_department_report.pdf [https://perma.cc/E7MP-8MGH] (documenting municipal court practices that exact harsh penalties and fines in an attempt to sustain the city’s budget); Campbell Robertson, A City Where Policing, Discrimination and Raising Revenue Went Hand in Hand, N.Y. Times (Mar. 4, 2015), https://www.nytimes.com/2015/03/05/us/us-details-a-persistent-pattern-of-police-discrimination-in-a-small-missouri-city.html [https://pe​rma.cc/QV4J-DJQL] (documenting the “reflexive and gratuitous hostility [of Ferguson police] toward black residents that goes beyond arrests into routine uses of force”). ↑
  14. See, e.g., Chaeyoung Cheon, Yuzhou Lin, David J. Harding, Wei Wang & Dylan S. Small, Neighborhood Racial Composition and Gun Homicides, 3 JAMA Network Open 1, 1–2 (2020) (suggesting that lack of institutional resources and opportunities created by racial wealth gaps and underinvestment subject Black people to higher gun homicide rates in their neighborhoods, even after controlling for individual socioeconomic status). ↑
  15. See, e.g., Tiffiany Howard, Marya Shegog, DeaJiane McNair & Mikale Lowery, Black Health and Black Wealth: Understanding the Intricate Linkages Between Income, Health, and Wealth for African Americans 7–8, 14 (2019) (finding that while income dictates access to high nutrient food and healthier neighborhoods, lack of wealth contributes to intergenerational insecurity that corresponds with negative health outcomes). ↑

  16. $23 Billion, EdBuild

    4,

    app. A

    (

    2019), https://edbuild.org/content/23-billion/full-report.pdf [https://perma.cc/AX8H-R5FL]. ↑

  17. See Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 487–92 (1976) (documenting the resistance of civil rights organizations like LDF to strategies that deemphasized integration, even after it became obvious that alternatives to desegregation, like genuinely equal funding for black schools, should have been considered in the face of white resistance and in response to the requests of Black parents). ↑
  18. Proceeding from the assumption that a segregated school is one where less than 40 percent of students are white, the number of schools where less than forty percent of students are white approximately doubled between 1996 and 2016, while the percentage of children of color attending such schools rose from fifty-nine to sixty-six percent. The percentage of Black students, in particular, attending segregated schools rose from fifty-nine to seventy-one percent. Will Stancil, School Segregation Is Not a Myth, The Atlantic (Mar. 14, 2018), https://www.theatlantic.com/educati​on​/archive/2018/03/school-segregation-is-not-a-myth​/555614/ [https://perma.cc/6ZCF-YWF​J]; Gary Orfield, Erica Frankenberg, Jongyeon Ee & John Kuscera, Brown at 60: Great Progress, a Long Retreat and an Uncertain Future, Civil Rights Project 10 tbl.3 (2014), https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/br​own-at-60-great-progress-a-long-retreat-and-an-uncertain-future/Brown-at-60-051814.pdf [https://perma.cc/86WC-VWY2] (documenting a long-term trend toward resegregation); Alvin Chang, The Data Proves that School Segregation Is Getting Worse, Vox (Mar. 5, 2018), https://www.vox.com/2018/3/5/17080218/school-segregation-getting-worse-data [https://perma.cc/TPK8-EQPM] (explaining that Black students are increasingly isolated in poor, segregated neighborhoods). ↑
  19. See Neil S. Siegel, Race-Conscious Student Assignment Plans: Balkanization, Integration, and Individualized Consideration, 56 Duke L.J. 781, 807 n.112 (2006) (explaining that affirmative action programs lead to a “modest decrease” in white students’ chances of being admitted); Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 Mich. L. Rev. 1045, 1046 (2002) (describing the “common yet mistaken” belief that when white applicants are denied admission in preference of minority applicants with equal or lesser qualifications, the cause is affirmative action). ↑

  20. See, e.g., Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1024, 1029, 1032 (9th Cir. 1998) (concluding that the required reading that included over two hundred instances of racial slurs regarding Black people did not run afoul of equal protection). ↑

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