Category: Social Factors

Cancel culture is all the rage just now, particularly on, of all things, college campuses.  The idea seems to be that open debate and tolerance for opposing ideas is simply another “construct” of bourgeois culture, and thus is itself an instrument of oppression, no matter how much it pretends to be something else.

Here at Crime and Consequences, we’re not big fans of cancel culture.  Thus I want to introduce readers to an idea to which I have not given a great deal of subscription.

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I’ve said many times that race has no place in fair-minded thinking about criminal law, first because human beings should be judged as individuals and not as members of racial (or gender or other innate) groups; second because criminal law is about behavior not identity; and third because race does not determine anything at all with which criminal law specifically ought to concern itself.

But I’ve lost that debate.  It has become impossible in the current climate to exclude race from discussions of criminal law.  Given that as the state of play, what questions should we be asking?

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In my last post, I noted that the woke culture’s drumbeat of hate against the United States was certain to have, and in fact is having, consequences.  In part, they are being reflected in the surge of riots, arson and other violent crime that even the Left no longer bothers to deny.  But while the denials have withered, in their place have come the dodges and excuses.  One of the most popular is that (ever heard this one?) “correlation is not causation.”  Hey, look  —  the story goes  —  violent crime has always tended to increase in warmer months.  It’s not the woke culture’s anthem of fury; it’s just correlation with the weather.  So what’s to worry?

What’s to worry is that if we tell people whose stability is none too good to start with that they are justified in their anger and hate, eventually they’ll believe us.  And when they believe us, they’re going to act on what we’ve been telling them.

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In my view, criminal law properly conceived has nothing to do with race and everything to do with behavior.  When I was a federal prosecutor (as an appellate lawyer), I typically did not know and did not care to know the defendant’s or the victim’s race.  The only thing that mattered was that they were human beings entitled to fair-minded and sober application of the law.

But then, I’m decidedly un-woke.  Trying to write on a criminal law blog without discussing race has become, in the moment, a hopeless enterprise.  Thus it’s not because I prefer it, but because it’s been shoved in all our faces, that I feel constrained to point out that the concern (some might say obsession) with race has now officially gone nuts.

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The “school-to-prison pipeline” is a favorite phrase of sentencing reform advocates.  It’s meant to imply that the real problem with thieves, drug pushers and con artists, etc., is not the choices they make, but the callous and woeful treatment society gives them  as school kids.  Because society is to blame, it’s unjust to punish the individual  — indeed, it’s no longer that the criminal owes a debt to society; it’s that society owes a debt to him!  We see this theme in dozens if not hundreds of academic proposals to water down (or, better, eliminate) punishment in favor of social programs to cater to those who, in that wonderfully opaque phrase, “interact with the criminal justice system.”

In a sense, there may indeed be a “school-to-prison pipeline,” but the way it operates is not exactly what we’ve been led to believe.  It might have more to do with what sort of “education” is going on in the classroom.  The Los Angeles teachers’ union seems to want to help us understand.

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