A Prelude to a Critical Race Theoretical Account of Civil Procedure

In this Essay, I examine the lack of scholarly attention given to the role of civil procedure in racial subordination. I posit that a dearth of critical thought interrogating the connections between procedure and the subjugation of marginalized peoples might be due to the limited experiences of procedural scholars; a misconception that procedural rules are a technical, objective, neutral area; and avoidance of discussion of race or other aspects of identity unless there is a case, material, or scholarly topic that meets an unreasonably high standard. I emphasize the importance of a critical race analysis of civil procedure.

Introduction

In response to the uprisings and social movement for racial justice following police officers1.The social movement, uprisings, and demonstrations have primarily focused on police killings of Black people, but there also have been notable killings of Black people by people who weren’t police officers. The summer of 2020 witnessed significant demonstrations against those other killings as well, including demonstrations against Travis McMichael, Gregory McMichael, and William “Roddie” Bryan Jr. killing Ahmaud Arbery. Brandon Tensley, Ahmaud Arbery and the Resilience of Black Protest, CNN Politics (May 12, 2020, 8:54 PM), https://www.cnn.com/2020/05/12/politics/ahmaud-arbery-black-protest-pandemic/index.html. [https://perma.cc/V87J-F24C]; Jessica Savage, Looking Back at the Arbery Case and Where Do We Go from Here?, CNN (Feb. 23, 2021, 5:36 PM), https://www.wtoc.com/2021/02/23/looking-back-arbery-case-where-do-we-go-here/ [https://perma.cc/Z9J9-RTMZ]. Others have discussed the relationship between non-police killings of Black people and police killings of Black people. Lyndsey Gough, Protest Held to Demand Arrests for the Death of Ahmaud Arbery, WTOC (May 6, 2020, 10:52 PM), https://www.wtoc.com/2020/05/06/protest-held-demand-arrests-death-ahmaud-arbery/ [https://perma.cc/XPN3-KF4Y]; Shervin Assari, George Floyd and Ahmaud Arbery Deaths: Racism Causes Life-threatening Conditions for Black Men Every Day, The Conversation (June 1, 2020, 8:14 AM), https://theconversation.com/george-floyd-and-ahmaud-arbery-deaths-racism-causes-life-threatening-conditions-for-black-men-every-day-120541 [https://perma.cc/5JCE-5A34]. In this Essay, I tend to refer to police killings of Black people because that seemed to be the primary focus of the largest and most sustained mobilizations, but I don’t mean to prioritize one group of killings of Black people over another by doing so.Show More killing George Floyd, Breonna Taylor, and other Black2.I capitalize “Black” and do not capitalize “white,” “people of color,” or “women of color.” See Portia Pedro, Toward Establishing A Pre-Extinction Definition of “Nationwide Injunctions”, 91 U. Colo. L. Rev., 849 n.5 (2020); Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L Rev. 1331, 1332 n.2 (1988) [hereinafter Crenshaw, Race] (“Blacks, like Asians, Latinos, and other ‘minorities,’ constitute a specific cultural group and, as such, require denotation as a proper noun.”); see also Kimberle Williams Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1244 n.6 (1991) (“. . . I do not capitalize ‘white,’ which is not a proper noun, since whites do not constitute a specific cultural group.”).Show More people,3.Demonstrations Force America to Reckon with Contentious Past, N.Y. Times (June 16, 2020), https://www.nytimes.com/2020/06/16/us/george-floyd-rayshard-brooks-protests.html [https://perma.cc/M54X-7JKD]; Damian Cave, Livia Albeck-Ripka & Iliana Magra, Huge Crowds Around the Globe March in Solidarity Against Police Brutality, N.Y. Times (June 6, 2020), https://www.nytimes.com/2020/06/06/world/george-floyd-global-protests.html [https://perma.cc/6AND-3V3K].Show More several dozen civil procedure scholars gathered virtually during the summer of 2020 to discuss how to include racial justice and issues of race in our classrooms.4.This July 22, 2020 session addressed racial and social justice in civil procedure.Show More While this event was a valiant attempt, it struck me as long overdue.

In this Essay, first, I share a personal experience with police as part of suggesting that Black people’s interactions with police might be a source of collective identity and might help us (Black proceduralists, litigators, and scholars of color) to see some of the role of racial subordination within policing and procedure.5.Perhaps there might not be as much in the way of a racial analysis, or analysis integrating other aspects of marginalized identities, within civil procedure because procedural scholars may be primarily white, heterosexual, cisgender men who might not be as aware of the role of race or identity in their experiences in the same way that many people of color, women, members of the Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ) community, people who identify as gender nonbinary, and people with disabilities might be.Show More Next, I describe some of the importance of developing a critical race analysis of civil procedure and briefly discuss some of the reasons that this analysis might be underdeveloped.

I. Interacting with the Police as a Collective Black Experience

My first memory of my father is also my first memory of the police.6.To be specific, the Los Angeles County Sheriff’s Department.Show More I was almost five years old when it happened. I was riding as a passenger in my dad’s car, a 1977 Dodge Monaco, as my father, who is Black and, at the time, was a bit under 30 years old, was driving. We were on our way to pick up my cousin from preschool. As my dad and I passed his high school alma mater, sheriffs pulled us over. The deputies approached the car with their guns drawn, pointed at us. They made my dad get out with his hands up, made him lay on the ground, and handcuffed him. With the amount of force that they displayed, he was scared about what they might do to me, especially if I surprised them. He told them that his 5-year-old daughter was in the car. Their response to hearing that a child was in the car was to yell out to 5-year-old me, “One move and I’ll blow your head off.”

The sheriffs didn’t physically harm either of us in that encounter, but our safety was far from guaranteed. When I was older, my parents explained to me that the supposed reason that the sheriffs pulled us over that day was that the prior owner of the car had tampered with one letter of the license plate to make it spell out his name backwards. My dad’s Irish friend had used nail polish to make a “1” look like an “I” so the license plate spelled his name (Patrick) backwards. My dad had ordered his own vanity license plate and was waiting on its arrival, but my dad hadn’t even realized that Patrick had altered the current license plate. My dad had only had the car for a few weeks at most when sheriffs pulled him over, but (white) Patrick had driven the car with the altered license plates for years without any issues from police or sheriffs. A part of me wonders if some of the reason that the sheriffs reacted with such a show of force toward me and my father when they had not pulled Patrick over for the license plate issue was due to sheriffs’ reactions to seeing my Black dad driving a car that, even though it was repainted to be tan and brown, clearly used to be a California Highway Patrol cruiser.

After the sheriffs forced my dad to get out of the car and questioned him, he gave consent for them to search him and the car. On that day—as I sat on the curb, with my legs in the street and watched—I had my first real life lesson on encounters with the police as a Black person. My first lesson of how Black people interact with the police to try to remain unharmed was through this experience and stories of it after.

In separate sheriff cars, they took us both down to the station and harassed him for so long that my next meal came from the station vending machine. As a five year old with no understanding of the context, I remember thinking that the deputies were so nice for giving me that tuna fish sandwich. Because I was hungry. And had no parent or guardian with me. Because they took my dad and I to the station for no reason. Instead of giving him a simple fix-it ticket, they brought criminal charges against him. My parents had to hire a lawyer and pay hundreds of dollars just to get the charges dropped.

I wonder how many other Black children have similar firsts. My father later explained that, as a Black man in a Black, working class neighborhood with his child in the car, he thought that the best and safest way for him to handle the encounter was to give consent to whatever search the police requested. Looking back, I think that he was probably right. Because the deputies stopped us with such a show of force, it is hard to imagine them peacefully accepting a refusal to search. This was my first experience in what would become an oft-repeated role as a Black girl and later woman with Black boys and men (or other boys or men of color).7.I mention some of the role of sex/gender and race/ethnicity in my experiences with police. I do so only to share what patterns there have been in my experiences, not to erase or ignore the experiences of Black girls and women, other girls and women of color, transgender girls and women, other members of the LGBTQ+ community, people with mental health issues or disabilities, or any other group who tends to have a heightened risk of interactions with police and are too often on the receiving end of police violence.Show More Unfortunately, this type of experience is not unique for Black people in the United States. This interaction (along with many others) is a part of the experiences that I have drawn from as I make life decisions. It informs my scholarship, just as others’ life experiences inform their research agendas.

There are so many different directions in which this encounter could have gone. The direction that had worried my father most was that the sheriffs might have hurt or killed one or both of us, as has happened to so many other Black people. There may have been the possibility of criminal charges against the officers in that situation, but, depending on the circumstances and the political reality of the situation, there is a significant possibility that the only legal recourse left would have been civil litigation. But no civil claim against a law enforcement official or department would have been successful unless it survived summary judgment, a civil procedural hurdle.8.See, e.g., Shirin Sinnar, Civil Procedure in the Shadow of Violence, inA Guide to Civil Procedure: Integrating Critical Legal Perspectives [Pt. III: Procedure Immunizing Police Violence] (NYU Press) (Brooke Coleman, Suzette Malveaux, Portia Pedro, & Elizabeth Porter, eds., forthcoming 2022) (on file with author) (describing how the Supreme Court has used civil procedure, especially qualified immunity and summary judgment, to “immuniz[e] police violence”).Show More

In a country that is, in part, founded on white supremacy,9.Paul Finkelman, The Founders and Slavery: Little Ventured, Little Gained, 13 Yale J. L. & Human. 413, 427–45 (2001) (noting the Constitution’s direct and indirect protections of the enslavement of African and Black peoples through various clauses including, among others, the Three-Fifths Clause, the Slave Trade Clause, the Fugitive Slave Clause, the Domestic Insurrections Clause, and the Electoral College).Show More it can feel like a losing battle to try to identify and counteract the various factors and structures that contribute to Black people being harmed by, or dying at the hands of, police. In looking at one of my own areas of expertise, it is important to understand the ways in which civil procedure encourages and excuses police violence.10F10 10.See Sinnar, supra note 8.Show More When someone harmed by police (or the loved ones of someone harmed) brings suit to hold a police officer, a police department, or the city liable civilly (not criminally), the defendant (office, police department, city) may file a motion for summary judgment to ask that the judge decide the case in their own favor. Under Federal Rule of Civil Procedure 56, a judge should grant summary judgment only if there is no genuine dispute of material fact (such that the movant—here, the police officer, department, and city—is entitled to judgment as a matter of law).11 11.Fed. R. Civ. P. 56(a) (“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”).Show More According to precedent, when deciding a motion for summary judgment, judges must look at the record in the light most favorable to the non-moving party (the plaintiffs who police harmed or whose loved ones have been harmed) and must draw reasonable inferences in that party’s favor.12 12.Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).Show More Under the doctrine of qualified immunity, police officers, their departments, and the cities for which they work are immune from civil suit—meaning that they aren’t liable civilly—in certain circumstances. Qualified immunity protects the defendants from litigation if the officer did not violate a clearly established constitutional right.13 13.Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).Show More Through civil procedural decisions against Black plaintiffs harmed by police, the Supreme Court has affirmed lower courts that have granted summary judgment because they found that defendants were protected by qualified immunity even when there was a genuine factual dispute that should have gone to the jury.14 14.See, e.g., Scott v. Harris, 550 U.S. 372 (2007) (holding that a police officer did not violate the Fourth Amendment by deliberately ramming his car into the car of a motorist suspected of speeding); Sinnar, supra note 8 (noting that Scott v. Harris included a factual dispute that would ordinarily have gone to a jury and that the decision “has given lower courts greater latitude to immunize police officers rather than allow juries to decide whether an officer’s use of force was reasonable.”).It seems that no judge or justice mentioned Victor Harris’s race, Black—or the race of the officer (Timothy Scott, white) who rammed Harris’s car and rendered him quadriplegic—in any opinion. See Jeffrey W. Stempel, Taking Cognitive Illiberalism Seriously: Judicial Humility, Aggregate Efficiency, and Acceptable Justice, 43 Loy. U. Chi. L.J. 627, 642 (2012). vic2k3, Why I Ran., YouTube (Dec. 9, 2009), https://www.youtube.com/watch?v=‌JATVLUOjzvM (featuring interviews with Victor Harris and Timothy Scott) [https://perma.cc/3F4F-8CUM].Show More There might be much more if we dig beneath the surface to critically analyze civil procedure as a tool to reinforce racial subjugation.

A. Black Experiences with Police

Black people report a higher number of interactions with police (including police sightings) than the national average.15 15.Lydia Saad, Black Americans Want Police to Retain Local Presence, Gallup, 2020, news.gallup.com/poll/316571/black-americans-police-retain-local-presence.aspx21 (last visited Nov 3, 2020) [https://perma.cc/M5NT-44QR]. More Black people than white people report seeing police in our neighborhoods “often or very often.” Id.Show More More contacts between Black people and police means greater exposure of Black people to the “possibility of violence” at the hands of the police.16 16.Devon W. Carbado, Predatory Policing, 85 UMKC L. Rev. 545, 561 (2017); see also Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Calif. L. Rev. 125, 128 (2017) (explaining “the significant ‘circuits of violence’ through which the ordinary (African Americans’ vulnerability to ongoing police surveillance and contact) becomes the extraordinary (serious bodily injury and death). . . . For there is a direct relationship between the scope of ordinary police authority, on the one hand, and African American vulnerability to extraordinary police violence, on the other.”); Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes, 104 Geo. L. J. 1479, 1509–11 (2016) (further describing the Police Violence Model). The Police Violence Model of Professor Devon Carbado and Patrick Rock explains why a higher level of police interactions creates a higher risk of police violence for Black people:First, the simple fact of repeated police interactions overexposes African Americans to the possibility of police violence.Second, the fact that African Americans’ exposure to the police occurs against the background of stereotypes of African Americans as violent and dangerous increases the likelihood that police officers will interact with African Americans from the perspective that violent force is both necessary and appropriate.Third, the more exposed African Americans are to the police, the greater the probability that they will be arrested.Fourth, black peoples’ repeated exposure to the police potentially increases their incarceration rates or facilitates some form of system involvement, and the incarceration and system involvement of African Americans likely mediates how police officers interact with black people. . . .Fifth, the more numerous African Americans’ contacts with the police are, the more vulnerable African Americans are to a set of violence-producing insecurities or vulnerabilities police officers experience in the context of police encounters.Devon W. Carbado & Patrick Rock, What Exposes African Americans to Police Violence?, 51 Harv. C.R.-C.L. L. Rev. 160, 164–65 (2016).Show More Of reported experiences with police, over 40% of Black people’s experiences with police are not positive, while only 25% of white people’s reported experiences with police are not positive.17 17.Camille Lloyd, For Black Americans, 41% of Police Encounters Not Positive, Gallup (July 30, 2020), https://news.gallup.com/poll/316247/black-americans-police-encounters-not-positive.aspx (last visited Nov 3, 2020) [https://perma.cc/M5HX-8CGN].Show More Generally, Black people’s level of confidence in police differs from, and is lower than, white people’s level of confidence in the police more than those groups’ confidence levels differ on almost any other social institution.18 18.See Jeffrey M. Jones, Black, White Adults’ Confidence Diverges Most on Police, Gallup (Aug. 12, 2020), https://news.gallup.com/poll/317114/black-white-adults-confidence-diverges-police.aspx (last visited Nov 3, 2020) (noting that 56% of white adults say that “they have ‘a great deal’ or ‘quite a lot’ of confidence in the police” while only 19% of Black adults say the same) [https://perma.cc/5A3A-HB42]. “This 37-percentage-point racial gap is the largest found for any of 16 major U.S. institutions rated in Gallup’s annual Confidence in Institutions poll.” Id. There was only a gap of 5% or less in levels of confidence for half of rated institutions. Id. The only other institution for which Black and white respondents’ ratings are nearly as large is a 33-percentage-point gap in levels of confidence in President Trump’s administration. Id.Show More Perhaps in part because of these higher levels of exposure to police, higher levels of police encounters that aren’t positive, and lower levels of confidence in police, the Black Census Project reported that, in 2019, “[t]he vast majority of Black Census respondents see the excessive use of force by police officers (83 percent) and police officers killing Black people (87 percent) as problems.”19 19.Aaron Ross Coleman, How Black People Really Feel About the Police, Explained, Vox (June 17, 2020, 8:30 AM) https://www.vox.com/2020/6/17/21292046/black-people-abolish-defund-dismantle-police-george-floyd-breonna-taylor-black-lives-matter-protest [https://perma.cc/VCT2-4LSJ] (quoting More Black than Blue: Politics and Power in the 2019 Black Census, Black Futures Lab 8 (June 2019), https://blackfutureslab.org/wp-content/uploads/2019/06/Digital-More-Black-Than-Blue-2.pdf [https://perma.cc/NS9F-S68H]); see also Drew Desilver, Michael Lipka & Dalia Fahmy, 10 Things We Know About Race and Policing in the U.S., Pew Research Center, 2020, https://www.pewresearch.org/fact-tank/2020/06/03/10-things-we-know-about-race-and-policing-in-the-u-s/ (last visited Nov 3, 2020) [https://perma.cc/9QL9-LL5U]. 33% “of Black adults said that police in their community did an ‘excellent’ or ‘good’ job in using the right amount of force (compared with 75% of white[] [people]), treating racial and ethnic groups equally (35% vs. 75%), and holding officers accountable for misconduct (31% vs. 70%).” Id.Show More These experiences and perspectives of police are common among many Black people regardless of lines of class, education, and social opportunity. Professor Devon Carbado has shared how his own experiences with the police, even as an elite Black legal scholar, are fraught with “questions [that] are part of black people’s collective consciousness.”20 20.These questions are part of Black people’s collective consciousness:I have not, however, been able to normalize my experiences with the police. They continue to jar me. The very sight of the police in my rear view mirror is unnerving. Far from comforting, this sight of justice (the paradigmatic site for injustice) engenders feelings of vulnerability: How will I be over-policed this time? Do I have my driver’s license, insurance, etc.? How am I dressed? Is my UCLA parking sticker visible? Will any of this even matter? Should it?And what precisely will be my racial exit strategy this time? How will I make the officers comfortable? Should I? Will I have time—the racial opportunity—to demonstrate my respectability? Should I have to? Will they perceive me to be a good or a bad Black?Devon W. Carbado,(E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 952 (2002).Show More Recent attention called to police murdering Black people has “presented a readily discernible target around which to organize.”21 21.Crenshaw, Race, supra note 2, at 1384.Show More In the context of police killings and other extrajudicial killings of Black people, there is “enough similarity between [our] life experiences . . . to warrant collective political action.”22 22.Id. at 1384.Show More

B. Shared Experience with Policing as a Source of Black Collectivity and Mobilization to Support Black Interests and Lives

Personal experiences with, and data on, the policing of Black bodies in the United States may shed light on a collective experience among many Black people and, perhaps, more broadly, many people of color.23 23.I refer to “people of color” throughout this Essay intending to include Black, Latinx, Asian Americans, Native Americans, and other Indigenous peoples, Arab Americans, and other racialized groups (non-whites). I do so understanding that this term groups people who have some shared experiences, but the term might also be problematic in that it does not emphasize differences in how these various communities, and others within them, might experience racism and other sources of oppression. See Meera E. Deo, Why BIPOC Fails, 107 Va. L. Rev. Online 115, [Pt. II When Unity Leads to Erasure] (2021).Show More Policing is one area in which many of us continue to experience racism in similar debilitating and dangerous ways, often regardless of income, level of education, and access to other opportunities. The national spotlight, education, concern, and momentum galvanized by Summer 2020 mobilizations against police killings of Black people provides what may have become an otherwise increasingly rare opportunity for a Black collective identity24 24.See Angela Onwuachi-Willig,The Trauma of the Routine: Lessons on Cultural Trauma from the Emmett Till Verdict, 34 Socio. Theory 335 (2016) (discussing the ways in which a routine infliction of harm on a subordinated group can constitute collective trauma and cultural trauma); see also Jalila Jefferson-Bullock & Jelani Jefferson Exum, That Is Enough Punishment: Situating Defunding the Police Within Antiracist Sentencing Reform, 48 Fordham Urb. L.J. 625, 636–41 (2021) (discussing the ways in which Black people in the United States are experiencing a racial and cultural trauma from recent police killings of Black people).Show More and action supporting Black lives. Policing seems to be a great equalizer of what could otherwise be a fragmented Black society in the United States. Many of us (Black people) experience interactions with the police similarly to the extent that the experience remains one of collectivity and has become a central part of the essence of what it means to be Black—the ability to be murdered without cause and without redress. This moment of mobilized Black collectivity comes, however, at a time when prior civil rights victories for Black people and other marginalized communities continue to be threatened. A good understanding of the relationship between these two oppositional mobilizations can help anti-subordination litigants, lawyers, and scholars to maximize litigation victories and to minimize losses.

For Black people, this moment—of mobilized Black collectivity with the potential for interest convergence at the same time that past victories are threatened—is rare although not without precedent.25 25.See Richard Gergel, Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring 4–5 (2019) (describing how the acquittal of a white police chief in the beating and blinding of a Black World War II Army veteran prompted the presiding judge to issue a series of landmark civil rights decisions). See generally Richard Delgado, Why Obama?: An Interest Convergence Explanation of the Nation’s First Black President, 33 L. & Ineq. 345 (2015) (discussing the election of President Barack Obama as a moment of interest convergence between people of different backgrounds); William M. Carter, Jr., The Thirteenth Amendment and Interest Convergence, 71 Md. L. Rev. 21 (2011) (exploring interest convergence in the passage of the Thirteenth Amendment to the U.S. Constitution); Sheryll Cashin, Shall We Overcome? Transcending Race, Class, and Ideology Through Interest Convergence, 79 St. John’s L. Rev. 253, 255 (2005) (discussing interest convergence in the Civil Rights Era); Marisa Abrajano & Zoltan L. Hajnal, White Backlash: Immigration, Race, and American Politics 2 (2017) (discussing the interrelation between opinions on immigration and relations between racial and ethnic groups within the United States); Kevin M. Kruse, White Flight: Atlanta and the Making Of Modern Conservatism 13–15 (2013) (discussing the effect of desegregation and white flight on shifting political coalitions in Atlanta); Gregory S. Jacobs, Getting Around Brown: Desegregation, Development, and The Columbus Public Schools xii–xiii (1998) (discussing the interrelation between race, class, and politics in response to desegregation in Columbus, Ohio); see also Ta-Nehisi Coates, The First White President, The Atlantic (Oct. 2017), https://www.theatlantic.com/magazine/archive/2017/10/the-first-white-president-ta-nehisi-coates/537909/ [https://perma.cc/FE5H-4YTA] (discussing the coalition of white classes whose alignment culminated in the 2016 election of President Donald Trump).Show More A time of strong, shared, collective Black identity with the sociopolitical support to undo our structural subordination is singular, in part, because of the prior meaningful gains in opportunities for some Black people.26 26.Crenshaw, Race, supra note 2, at 1383–84.Show More Much of the formal symbolic subordination of Black people has been illegal and disallowed for longer than my lifetime.27 27.See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954) (finding that segregation in public schools violates the Equal Protection Clause even if physical facilities were relatively equal); Gomillion v. Lightfoot, 364 U.S. 339 (1960) (holding that a state violates the Fifteenth Amendment when it constructs jurisdictional boundary lines with the purpose of denying equal representation to Black voters); Bailey v. Patterson, 369 U.S. 31 (1962) (finding that states may not require racial segregation of transportation facilities); Civil Rights Act of 1964, Pub. L. no. 88-353, 78 Stat. 241 (1964) (outlawing literacy tests as a qualification for voting in federal elections unless certain protections were observed); Loving v. Virginia, 388 U.S. 1 (1967) (finding that statutes outlawing interracial marriage violated the Fourteenth Amendment and the Equal Protection and Due Process Clauses); Fair Housing Act of 1968, 42 U.S.C. §§ 3601 et seq. (outlawing discrimination in the sale or rental of housing); Shelley v. Kraemer, 334 U.S. 1 (1948) (holding that racially restrictive covenants violate the Equal Protection Clause).Show More As Professor Kimberlé Crenshaw has noted, Black people may have lost much of our collectivity28 28.Crenshaw, Race, supra note 2, at 1383 n. 197: (“By ‘collectivity,’ I refer to the recognition of common interests and the benefits derived by Blacks of all classes in sharing the burdens of social struggle. The potential for collective struggle is maximized where the grievance is shared by all. It was clear that racial segregation, for example, affected all Blacks. The creation of opportunity for some Blacks—however small the number may be—can obscure the degree to which Blacks have common interests that warrant continual collective struggle.”).Show More due to the formal reforms of the civil rights victories.29 29.Id. at 1383–84.Show More The reforms of the civil rights movement made it so fewer Black people experience racism in collective ways that are similar to each other.30 30.Id.Show More This is particularly true for Black people with greater access to capital than others. The formal end of the apartheid regime in the United States left Black people more fractured because those reforms let some of us improve our material situations much more than others.31 31.Id. at 1381–84.Show More

While many of the current efforts to protect Black lives will aim at changing police training, defunding police, or abolishing police, much of this effort inspired by the Movement for Black Lives will also aim at compensating Black people and our families through the legal process.32 32.See, e.g., Amna A. Akbar, Law’s Exposure: The Movement and the Legal Academy, 65 J. Legal Educ. 352, 357–58, 370 n.73 (2015); Kwadwo Frimpong, Black People Are Still Seeking Racial Justice—Why and What to Do About It, Brookings Inst. (Nov. 12, 2020), https://www.brookings.edu/blog/how-we-rise/2020/11/12/black-people-are-still-seeking-racial-justice-why-and-what-to-do-about-it/ [https://perma.cc/3E6E-4ZC3].Show More Historically, demands of movements inspired by Black collective identity are not typically limited to ending one singular condition or phenomenon (such as police murders of Black people), but also traditionally insist on the inclusion of Black people in the U.S. “political imagination,” even beyond policing.33 33.Crenshaw, Race, supra note 2, at 1365.Show More

II. The Current Import of a Critical Race Theoretical
Account of Civil Procedure

There is arguably not yet a “Whiteness as Procedure,”34 34.See Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1714 (1993).Show More an “(E)racing the Fourth Amendment,”35 35.See Carbado, supra note 20.Show More or a critical race civil procedure term as ubiquitous as intersectionality36 36.See Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 141–52.Show More is in constitutional law and civil rights. A primary purpose of critical race theory is to “reveal[] the ways in which racial subordination is embedded in social structures and bureaucracies.”37 37.Portia Pedro, Forging Fortuity Against Procedural Retrenchment: Developing a Critical Race Theoretical Account of Civil Procedure, inA Guide to Civil Procedure: Integrating Critical Legal Perspectives (NYU Press) (Brooke Coleman, Suzette Malveaux, Portia Pedro, & Elizabeth Porter, eds., forthcoming 2022) (on file with author).Show More Within law and litigation, civil procedure provides the structure for deciding who can bring a claim to court to request a remedy for the harms that they have suffered. To prevent civil procedure from reinforcing, or continuing to reinforce, racial subjugation, we need to understand how these seemingly technocratic or neutral rules and doctrine are already deployed in ways that reinforce existing hierarchies including white supremacy. Part of this project is to develop an understanding of what I call “procedural identity”—how aspects of identity, including race, sex, gender identity, sexual orientation, disability, and religion have affected (and been affected by) procedural standards. Mapping out procedural identity within civil procedure could be an impetus for changing procedural standards in a way that prevents further subjugation of marginalized groups.

In this Essay, I do not attempt to resolve the longstanding debate over the legitimacy or efficacy of rights discourse.38 38.For descriptions of, and views on, the legitimacy and efficacy of rights discourse, see Crenshaw, Race, supra note 2, at 1381.Show More But civil rights reform may play a role in the continued subordination of Black people by “creat[ing] the illusion that racism is no longer the primary factor responsible for the condition of the Black underclass.”39 39.Id. at 1381. (“[T]he very transformation afforded by legal reform itself has contributed to the ideological and political legitimation of continuing Black subordination.”); see also Bernard E. Harcourt, Foreword: “You Are Entering a Gay and Lesbian Free Zone”: On the Radical Dissents of Justice Scalia and Other (Post-) Queers. [Raising Questions About Lawrence, Sex Wars, and the Criminal Law], 94 J. Crim. Law & Crimin. 503, 510 (2004). (arguing that “to properly understand Lawrence—and other sex and cultural wars—we need a much finer grained understanding of sexual projects and of the fragmentation of those projects.”).Show More Civil rights reform may have increased “access to the dominant framework”40 40.Harcourt, supra note 39, at 534.Show More without challenging, questioning, or changing the underlying subordination.

A critical race analysis of civil procedure within the context of police violence reveals areas of procedure that generally will not provide justice for Black people harmed by police. Some of those doctrinal areas, such as summary judgment in police brutality cases, do not need reform. They need radical transformation. Although civil rights litigation may provide relief to some Black people (and others) harmed by police, there is still a need for something akin to a “politics of spleen”41 41.Although I attempt to give something of a definition of “politics of spleen” in the text, I worry that there is still something lost in the summary that might be better described in a quotation:Perhaps the best or only way to express this politics, then, is through a pastiche of post-queer venom. It has something to do with “the intense charge that comes with transgression and the pleasure of that transgression.” It involves “an alternate culture in and around it, to be taken seriously, and left alone.” It is a “boundary-free zone in which fences are crossed for the fun of it, or simply because some of us can’t be fenced in. It challenges either/or categorizations in favor of largely unmapped possibility.” It is nostalgic, transgressive, full of hope and hopeless at the same time.Id. at 534. (internal citations omitted). Something in this reminds me of what I’ve read about the Black Panther Party and other Black people armed in self-defense and fighting for liberation, but much of that was before my time, so I am not sure where these experiences differ and converge.Show More that others have described for the LGBTQ community.42 42.Harcourt, supra note 39, at 534.Show More A “politics of spleen” incorporates “the need to transgress limits that do not make room for all of us.”43 43.Harcourt, supra note 39, at 532 (quoting Carol Queen & Lawrence Schimel, Introduction to PomoSexuals: Challenging Assumptions about Gender and Sexuality 19, 21–23 (Carol Queen & Lawrence Schimel eds., 1997)).Show More

Perhaps more post-slavery Black people living in the segregated, apartheid, Jim Crow era had a similar sort of politics of spleen. The existence and life of a free Black person explicitly threatened the fundamental sociopolitical and cultural structure of the United States and was, in and of itself, a transgression. This politics of spleen might help to explain why numerous Black people and organizations thought that the only way that Black people would be fed,44 44.See, e.g., Husain Lateef & David Androff, “Children Can’t Learn on an Empty Stomach”: The Black Panther Party’s Free Breakfast Program, 44 J. Soc. & Soc. Welfare 3 (2017); Erin Blakemore, How the Black Panthers’ Breakfast Program Both Inspired and Threatened the Government, History (last updated Jan. 29, 2021), history.com/news/free-school-breakfast-black-panther-party [https://perma.cc/8Q98-LE2Z]; History.com Editors, Black Panthers, History (last updated Jan. 26, 2021), history.com/topics/civil-rights-movement/black-panthers [https://perma.cc/KU4P-9YK2].Show More that Black children would learn,45 45.See, e.g., Hakim M. Rashid & Zakiyyah Muhammad, The Sister Clara Muhammad Schools: Pioneers in the Development of Islamic Education in America, 61 J. Negro Ed. 178 (1992).Show More that Black people would be gainfully employed,46 46.See, e.g., Nafeesa Muhammad, The Nation of Islam’s Economic Program, 1934-1975, Blackpast (Apr. 1, 2020), https://www.blackpast.org/african-american-history/the-nation-of-islams-economic-program-1934-1975/ [https://perma.cc/XT27-W9CZ].Show More and that Black people would be safe47 47.See, e.g., Lateef & Androff, supra note 44, at 11.Show More was if we took those responsibilities upon ourselves and did not expect the liberal state to embrace us.

That we may have lost this politics of spleen in the context of police violence through assimilationist civil rights reform might have been unavoidable in some ways. As Professor Bernard Harcourt has described, “the politics of spleen may be fundamentally unstable in the criminal law context.”48 48.Harcourt, supra note 39, at 548–49.Show More It may be that the politics of spleen only existed in its true form in the U.S. LGBTQ community before Lawrence v. Texas,49 49.539 U.S. 558 (2003).Show More which held that a state criminal prohibition on sodomy was unconstitutional,50 50.Id. at 578–79, 585.Show More because “who in their right mind would want to live in fear of criminal prosecution” and “how would they justify imposing that fear on others? . . . Perhaps the politics of spleen, in reality, is nothing more than a coping mechanism—a way of making the best of a terrible situation.”51 51.Harcourt, supra note 39, at 548–49.Show More If the politics of spleen is also fundamentally unstable in the context of police killings of, and violence inflicted upon, Black people, then much of the discussions about protecting Black lives through law will center on a civil rights framework.

Because liberal reform has given us some of the rights toward inclusion in the U.S. political experience and imagination, demands and goals of the activity galvanized by the Movement for Black Lives will not all be extra-institutional.52 52.Akbar, supra note 32, at 358. (noting that the Movement for Black Lives has protested inequality in the law while also calling for special prosecutors, civilian review boards, and police indictments in response to police killings of Black people).Show More While some organizers are calling for police abolition, prison abolition, or both, there is not a widespread call for abolishing courts. Or at least there is not such a call yet. Several reforms and goals will be within institutions and especially within the courts.53 53.Challenges and demands made from outside the institutional logic would have accomplished little because Blacks, as the subordinate “other,” were already perceived as being outside the mainstream. The struggle of Blacks, like that of all subordinated groups, is a struggle for inclusion, an attempt to manipulate elements of the dominant ideology to transform the experience of domination. It is a struggle to create a new status quo through the ideological and political tools that are available.Crenshaw, Race, supra note 2, at 1386; see alsoMichael D. White, Henry F. Fradella, Weston J. Morrow & Doug Mellom, Federal Civil Litigation as an Instrument of Police Reform: A Natural Experiment Exploring the Effects of the Floyd Ruling on Stop-and-Frisk Activities in New York City, 14 Ohio St. J. Crim. L. 9, 35–46 (2016) (discussing how “federal courts are often called upon” to address discriminatory stop-and-frisk police practices against Black people); Paul Burstein, Legal Mobilization as a Social Movement Tactic: The Struggle for Equal Employment Opportunity, 96 Am. J. Soc. 1201, 1204 (1991) (“It is, in fact, impossible to understand the American struggle for equal opportunity without focusing on the courts and on activities intended to influence judicial decisions.”).Show More

I admit the possible futility in ever attempting to use “the master’s tools” to “dismantle the master’s house.”54 54.SeeAudre Lorde, The Master’s Tools Will Never Dismantle the Master’s House, in Sister Outsider 110 (1984).Show More But generations of lawyers and legal scholars have engaged in litigation and legal scholarship in attempts to prevent the continued or further subjugation of Black people and others, so it hardly seems outside of expectation to attempt to prevent civil procedural rules and doctrine from being deployed to maintain or further subjugate marginalized people.

Moreover, the law itself is not “the master’s tools.” Civil procedure only becomes “the master’s tools” if we allow procedural doctrine, rules, and mechanisms to be deployed in a way that reinforces white supremacy, misogyny, homophobia, ableism, bigotry, etc. Activist, poet, and social and feminist theorist Audre Lorde questioned and answered, “What does it mean when the tools of a racist patriarchy are used to examine the fruits of that same patriarchy? It means that only the most narrow perimeters of change are possible and allowable.”55 55.See id. at 110–11.Show More In this statement, Lorde was not disavowing every use of any existing social structure or institution. Instead, Lorde was saying that a conference on feminist theory that did not include “significant input from poor women, Black and Third World women, and lesbians” was “sad, in a country where racism, sexism, and homophobia are inseparable.”56 56.See id. at 110.Show More That the conference planners deployed “the tools of a racist patriarchy”—racism, classism, and homophobia—when they put together discussions on feminist theory guaranteed that they would not be moving toward genuine change.57 57.See id. at 110–12.Show More Attempting to use the law and civil procedure to bring about equity and social transformation for Black people and other marginalized communities is not using “the master’s tools”; it’s struggling against them.58 58.See id. at 112 (discussing learning “how to make common cause with those others identified as outside the structures in order to define and seek a world in which we can all flourish” as part of a way to “bring about genuine change”).Show More To wage these fights (particularly litigation to hold police accountable),59 59.See Sinnar, supra note 8.Show More we need to develop an understanding of the relationship between racial subordination and civil procedure. If that understanding shows that civil procedure, portions of it, or the entirety of the U.S. federal court system is intractably reinforcing white supremacy (or any other type of group subordination), then perhaps there should be calls to abolish those portions of procedure (or the entire court system) along with ideas of what rules, doctrines, or types of structures we should have instead.

A. Potential Reasons for the Underdevelopment of the Discussion

There is less of a comprehensive theoretical description of the mutually constitutive and reinforcing relationship between civil procedure and racial subjugation or white supremacy than exists in some other areas.60 60.For civil procedure, see Roy Brooks, Critical Procedure (1998) (applying a criticalist theory approach to investigate the subordination of “outsider” groups like people of color and women in civil procedure). For corporations, see Richard R.W. Brooks, Incorporating Race, 106 Colum. L. Rev.2023 (2006) (discussing the implications of recent court decisions ruling that corporations possess racial identities “as a matter of law”). For criminal procedure, see Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 967–68 (2002); Tracey Maclin, “Black and Blue Encounters”—Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 Val. U. L. Rev. 243, 250 (1991); Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333, 392 (1998). For antidiscrimination and constitutional law, see T. Alexander Aleinikoff, The Constitution in Context: The Continuing Significance of Racism, 63 U. Colo. L. Rev. 325, 326 (1992); Kimberlé Williams Crenshaw, Race, supra note 2, at 1335 (1988); Eric Schnapper, Perpetuation of Past Discrimination, 96 Harv. L. Rev. 828, 831 (1983); Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049, 1050 (1978). For evidence law, see Jasmine B. Gonzales Rose, Toward a Critical Race Theory of Evidence, 101 Minn. L. Rev.2243 (2017) (explaining how evidence law and practice disadvantage people of color). For tax, see Andre L. Smith, Tax Law and Racial Economic Justice: Black Tax 1 (2015) (discussing the role of tax law in redistributing wealth from Black to white persons); Critical Tax Theory: An Introduction (Anthony C. Infanti & Bridget J. Crawford, eds., 2009) (revealing how facially “neutral” tax laws contribute to racial subordination); David Brennen, Race and Equality Across the Law School Curriculum: The Law of Tax Exemption, 54 J. Legal Educ. 336–37 (2004); Beverly I. Moran & William Whitford, A Black Critique of the Internal Revenue Code, 1996 Wis. L. Rev. 751 (1996) (arguing that the tax code systematically favors white over Black persons); Dorothy A. Brown, Race, Class, and Gender Essentialism in Tax Literature: The Joint Return, 54 Wash. & Lee L. Rev. 1469, 1471 (1997). For property, see Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1714 (1993). For election law and voting rights, see Lani Guinier, Groups, Representation, and Race-Conscious Districting: A Case of the Emperor’s Clothes, 71 Tex. L. Rev. 1589, 1641–42 (1993); Heather K. Gerken, Understanding the Right to an Undiluted Vote, 114 Harv. L. Rev. 1663, 1670 (2001).For examples specific to teaching, see Dorothy A. Brown, Critical Race Theory: Cases, Materials, and Problems (3rd ed. 2013); Kevin R. Johnson, Integrating Racial Justice into the Civil Procedure Survey Course, 54 J. Legal Educ. 242 (2004); Taunya Lovell Banks, Teaching Laws with Flaws: Adopting a Pluralistic Approach to Torts, 57 Mo. L. Rev.443 (1992).Show More Critical Race Theory (CRT) might be underdeveloped in civil procedure because it could seem to be the most technical, objective legal discourse, an area of “perspectivelessness.”61 61.It would seem that someone could easily assume that procedural rules embody the most technical, objective legal discourse and that no “particular perspective in legal analysis” and “no specific cultural, political, or class characteristics” have any relevance. Kimberlé Williams Crenshaw, Foreword: Toward a Race-Conscious Pedagogy in Legal Education, 11 Nat’l Black Law J. 1, 2–3 (1989), (defining “perspectivelessness” as the dominant mode of white, middle class beliefs).Show More One could easily assume that “no specific cultural, political, or class characteristics” have any relevance for procedure and that procedural arguments and decisions come from no “particular perspective in legal analysis.”62 62.Id. at 2.Show More It might seem that discussions of racial justice would fall largely or exclusively within the domain of constitutional law, criminal law, or criminal procedure. Additionally, proceduralists might be less likely to realize the importance of racial subordination in procedure.

Perhaps in part due to the absence of a comprehensive scholarly theoretical account of racial implications of procedure, most civil procedure classes might not discuss the relationship between racial subordination and civil procedure. Scholars might be less likely to recognize and build upon the roles of race and identity in procedure if those topics haven’t been a part of their procedural discussions beginning at least in law school.

CRT in civil procedure might be underdeveloped because many (white) scholars and professors may only realize, or think that they should discuss, the importance of racial subordination in procedure if they’ve found what I refer to as a “Magical Negro”63 63.See Matthew W. Hughey, Cinethetic Racism: White Redemption and Black Stereotypes in “Magical Negro” Films, 56 Soc. Probs. 543, 544 (2009).Show More case, casebook, or scholarly topic. The Magical Negro is a term popularized by film director Spike Lee64 64.Andrea Freeman, Unmothering Black Women: Formula Feeding as an Incident of Slavery, 69 Hastings L.J. 1545, 1589 (2018); Susan Gonzalez, Director Spike Lee Slams ‘Same Old’ Black Stereotypes in Today’s Films, 29 Yale Bulletin, Mar. 2, 2001, http://archives.news.yale.edu/v29.n21/story3.html [https://perma.cc/Y2GD-8WMH].Show More that describes a stereotypical, supporting Black movie character “who, through their special insight or mystical powers, aids the white main character in his or her character development.”65 65.I. Bennett Capers, Afrofuturism, Critical Race Theory, and Policing in the Year 2044, 94 N.Y.U. L. Rev. 1, 12–13 n.56 (2019) (citing Cerise L. Glenn & Landra J. Cunningham, The Power of Black Magic: The Magical Negro and White Salvation in Film, 40 J. Black Stud. 135, 135 (2009)).Show More The Magical Negro’s powers “are used to transform disheveled, uncultured, lost, or broken white characters into competent, successful, and content people within the context of the American myth of redemption and salvation.”66 66.DeShayla M. Strachan, The Triple Threat: The Black, Female Attorney, 11 S.J. Pol’y & Just. 112, 119 (2017); see also Osamudia R. James, Valuing Identity, 102 Minn. L. Rev. 127, 148 n.98 (2017).Show More In much the same way of the Hollywood stereotype, the race-relevant case, casebook, or topic might only be good enough to play, at best, a supporting role, to all of the white-perspective or seemingly neutral cases if the race-relevant case is perfect or “saintly” and the material would serve the “sole purpose” of enriching the white cases around it.67 67.Freeman, supra note 64, at 1589.Show More

Even if this comparison may be somewhat extreme, civil procedure scholars don’t seem to set anywhere nearly as high of a standard for non-race relevant (or non-marginalized group relevant) cases, casebooks, or topics. We are always supposed to look for and to discuss fairness, efficiency, and other ostensibly identity-neutral concepts seen as central to procedure, but some procedural scholars might only consider the role of race and racial subordination within procedure if someone presents them with the “Magical Negro” case, casebook, or topic. Such absurdly high expectations for cases or scholarly projects that prompt thought about racial subordination could guarantee that some professors who think of themselves as supportive of racial equality, and as against racial subordination, might never engage race-relevant materials in their scholarship, classes, or litigation.

Some scholars may hesitate to explore race (or other aspects of identity) and subordination within procedure unless a perfect opportunity presents itself—either the perfect “race” scholarship project, the perfect case, or the perfect casebook. For teaching, there are numerous civil procedure cases,68 68.See, e.g., Ashcroft v. Iqbal, 556 U.S. 662 (2009) (establishing a plausibility standard for pleadings in a case involving a Muslim, Pakistani litigant alleging top government officials were liable for discriminatory treatment and abuse in prison); Lassiter v. Dept. of Soc. Servs., 452 U.S. 18 (1981) (finding that the due process clause did not require the state to appoint an attorney for indigent parents in danger of losing their parental rights in a case involving an indigent, Black mother); Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) (holding that the party asserting summary judgment has the burden of showing a lack of factual controversy where a lunch counter had won on summary judgment after turning a teacher and Black students away and having them arrested); Scott v. Harris, 550 U.S. 372 (2007) (holding that a police officer did not violate the Fourth Amendment by deliberately ramming his car into the car of a motorist suspected of speeding); Hansberry v. Lee, 311 U.S. 32 (1940) (holding that res judicata may not bind plaintiffs who had no opportunity to be represented in earlier actions in a case involving racially restrictive covenants that barred Black persons from owning or leasing land); Martin v. Wilks, 490 U.S. 755 (1989) (allowing white firefighters to challenge consent decrees meant to ensure that Black people would be hired as firefighters in Birmingham, Alabama); Swanson v. Citibank, N.A., 614 F.3d 400 (7th Cir. 2010) (holding that a Black homeowner’s complaint alleging Fair Housing Act violation met the plausibility pleading standards articulated by Iqbal).Show More doctrines,69 69.For example, due process, the right to counsel, pleading standards and motions to dismiss, peremptory challenges, and class actions.Show More casebooks,70 70.For example, Stephen N. Subrin, Martha L. Minow, Mark S. Brodin, Thomas O. Main & Alexandra Lahav, Civil Procedure: Doctrine, Practice, and Context 1188 (5th ed. 2016), which includes a significant case file (that is integrated in problems and discussions throughout the book) for Warner v. City of New York, a class action challenging an allegedly racially discriminatory policing stop-and-frisk policy that is based on Floyd v. City of New York (Floyd III), 861 F. Supp. 2d 274 (S.D.N.Y. 2012).Show More and other materials71 71.See, e.g., Kevin M. Clermont, ed., Civil Procedure Stories (2d ed. 2008) (providing a deeper understanding of significant civil procedure cases, including the social and factual backgrounds).Show More discussing race.72 72.See Johnson, supra note 60 at 242 (2004).Show More When presented with materials to use that are relevant to race and racial justice, some professors require that any race-relevant material meet standards far beyond that which they require for any other class material. As examples, some professors would be happy to teach materials that involve race in civil procedure if there were a single race-relevant case that they could use to teach every section of the syllabus. Others would only want to engage with racial subordination in the classroom if there were an accompanying novel specifically about the case to assign the class. And others still would only teach or think about race in civil procedure if the relevant material were integrated in their preferred casebook (which doesn’t include the material). Civil procedure professors who want to engage with cases and doctrine that relate to racial injustice should stop this pretense of a search for the mythical “Magical Negro” case, casebook, or scholarly project. Our jobs as scholars and teachers include learning, teaching, and building scholarly projects around different complicated ideas and concepts. If we have put in the time, or sought out resources, to learn about law and economics or any other type of framework and we incorporate that into our classrooms or scholarship, then we could and should do the same with race, racism, and racial subordination. If we aren’t thinking, teaching, or writing about how civil procedure affects Black people and other marginalized groups, we are likely cultivating generations of lawyers, scholars, legal instructors, and judges who accept and promote the dominant white hegemonic view of procedure as neutral and we are marginalizing students who know better.

B. Why Now?

Some may wonder if there is less of a need to fight against the subjugation of marginalized groups now that Donald Trump is no longer in office. But the threat of racial subordination does not end solely based on a Democrat (in the current time, President Joe Biden) or someone other than Donald Trump having won the 2020 presidential election. While Donald Trump serves as a lightning rod or focal point in the current public resurgence of white supremacy and movements to strip marginalized groups of rights, privileges, and benefits,73 73.See, e.g., Kevin Roose, What Is QAnon, the Viral Pro-Trump Conspiracy Theory?, N.Y. Times (Oct. 19, 2020), https://www.nytimes.com/article/what-is-qanon.html [https://perma.cc/4V69-GYXM]; Russell Berman, Trump Fails the QAnon Test, The Atlantic (Oct. 15, 2020), https://www.theatlantic.com/politics/archive/2020/10/trump-qanon-denounce/616751/ [https://perma.cc/56J7-Q9PG]; Alex Kaplan, Trump has Repeatedly Amplified QAnon Twitter Accounts. The FBI Has Linked the Conspiracy Theory to Domestic Terror, Media Matters (Jan. 11, 2021, 4:30 PM), https://www.mediamatters.org/twitter/fbi-calls-qanon-domestic-terror-threat-trump-has-amplified-qanon-supporters-twitter-more-20 [https://perma.cc/8CY6-VV2N]; Sarah McCammon, From Debate Stage, Trump Declines to Denounce White Supremacy, NPR (Sept. 30, 2020, 12:37 AM), https://www.npr.org/2020/09/30/918483794/from-debate-stage-trump-declines-to-denounce-white-supremacy [https://perma.cc/7DDU-GGJ5]; Matt Pearce, Q&A: What Is President Trump’s relationship with far-right and white supremacist groups?, L.A. Times (Sept. 30, 2020, 7:42 PM), https://www.latimes.com/politics/story/2020-09-30/la-na-pol-2020-trump-white-supremacy [https://perma.cc/9E88-AW92]; Sarah Mizes-Tan, Experts Warn The Threat of Violence From Far-Right Groups Can Impact Racial Progress, CapRadio (Oct. 27, 2020), https://www.capradio.org/articles/2020/10/27/experts-warn-the-threat-of-violence-from-far-right-groups-can-impact-racial-progress/ [https://perma.cc/G3KC-VL57].Show More the potential attempt to retrench civil rights and maintain marginalization of various communities does not necessarily depend on Trump being President, there being a Republican president, or Republicans having control of Congress. As President, Trump issued several executive orders,74 74.See, e.g., Exec. Order No. 13769, 82 Fed. Reg. 8977 (January 27, 2017) (“Protecting the Nation From Foreign Terrorist Entry Into the United States.”) (enacting what was dubbed a “Muslim Ban”; Exec. Order No. 13780, 82 Fed. Reg. 13209 (March 6, 2017) (“Protecting the Nation From Foreign Terrorist Entry Into the United States.”) (functioning practically as another “Muslim Ban”); Exec. Order No. 13798, 82 Fed. Reg. 21675 (May 4, 2017) (“Promoting Free Speech and Religious Liberty.”) (potentially giving religious organizations a greater ability to discriminate against women and members of the LGBT community); Exec. Order No. 13950, 85 Fed. Reg. 60683 (September 22, 2020) (“Combating Race and Sex Stereotyping.”) (preventing discussions of critical race theory, white privilege, and systemic racism and sexism in some diversity trainings).Show More rules/regulations,75 75.See, e.g., Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs, 85 Fed. Reg. 44811 (proposed July 24, 2020) (allowing shelters to declare the gender of people staying at sex-segregated shelters and allowing or encouraging discrimination against and endangerment of trans women and men); Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority 85 Fed. Reg. 37160 (June 19, 2020) (changing definitions within the Affordable Care Act’s nondiscrimination provision to remove the definition of “on the basis of sex” in order to no longer include, and protect against discrimination on the basis of, gender identity or sexual orientation); Adoption and Foster Care Analysis and Reporting System, 85 Fed. Reg. 28410 (proposed May 12, 2020) (to be codified at 45 C.F.R. Pt. 1355) (eliminating collection of sexual orientation date on foster youth/adoptive parents); Student Assistance General Provisions, The Secretary’s Recognition of Accrediting Agencies, The Secretary’s Recognition Procedures for State Agencies 84 Fed. Reg. 58834 (November 1, 2019) (preventing HHS from enforcing, and planning to repeal, regulations prohibiting discrimination based on gender identity and sexual orientation in all HHS grant programs).Show More and other policies76 76.See, e.g., Memorandum for the Secretary of Commerce, Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census, 85 Fed. Reg. 44679 (July 21, 2020) (instructing Commerce Secretary to remove immigrants without legal status from the count for congressional apportionment); Notice, Designating Aliens for Expedited Removal 84 Fed. Reg. 35409 (July 23, 2019) (expanding the scope of expedited removal of undocumented immigrants); Memorandum for the Secretary of Defense and the Secretary of Homeland Security, 82 Fed. Reg. 41319 (Aug. 25, 2017) (banning transgender individuals from serving in the military); Office of Management and Budget Memorandum M-20-37, Ending Employee Trainings that Use Divisive Propaganda to Undermine the Principle of Fair and Equal Treatment for All (Sept. 28, 2020); Memorandum M-20-34, Training in the Federal Government (Sept. 4, 2020) (instructing agencies “to begin to identify all contracts or other agency spending related to any training on ‘critical race theory,’ ‘white privilege,’ or any other training or propaganda effort that teaches or suggests either (1) that the United States is an inherently racist or evil country or (2) that any race or ethnicity is inherently racist or evil” and “begin to identify all available avenues within the law to cancel any such contracts and/or to divert Federal dollars away from these un-American propaganda training sessions.”).Show More that likely would never have been issued by a president who was a Democrat or a different or more moderate Republican, but the power to be gained or solidified through a renewed white supremacist silent covenant likely would and will remain.77 77.For as much as it seems that Donald Trump has changed something about the character of this country, the truth is he hasn’t. What is terrible about Trump is also terrible about the United States. Everything we’ve seen in the last four years — the nativism, the racism, the corruption, the wanton exploitation of the weak and unconcealed contempt for the vulnerable — is as much a part of the American story as our highest ideals and aspirations.Jamelle Bouie, Don’t Fool Yourself. Trump Is Not an Aberration, N.Y. Times (Oct. 30, 2020), https://www.nytimes.com/2020/10/30/opinion/trump-presidents-history.html:[https://perma.cc/4ZD8-Z9EL].According to Professor Derrick Bell’s concept of involuntary sacrifice:To settle potentially costly differences between two opposing groups of whites, a compromise is effected that depends on the involuntary sacrifice of black rights or interests. Even less recognized, these compromises (actually silent covenants) not only harm blacks but also disadvantage large groups of whites, including those who support the arrangements. Examples of this involuntary racial-sacrifice phenomenon abound and continue. A few of the more important are: the slavery understandings, the Constitution, universal white male suffrage, the Dred Scott v. Sandford case, the Hayes-Tilden compromise, and the southern disenfranchisement compromise.Derrick Bell, Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform 29 (2005). See also Pedro, supra note 37 (“The involuntary sacrifice comes at a time when white people are divided and need to be reunited across class or other lines, so they reunite by taking something away from Black people or other marginalized groups. Given current high levels of polarization, it seems that we are currently in such a time.” (internal citations omitted)).Show More Additionally, the perceived threat to whiteness of a soon to be majority people of color country and society and the ideal privileges that do, or in some minds should, accompany whiteness may drive intensified action now.78 78.Angela Onwuachi-Willig, Policing the Boundaries of Whiteness: The Tragedy of Being “Out of Place” from Emmett Till to Trayvon Martin, 102 Iowa L. Rev. 1113, 1154–56, 1168–70 (2017).Show More

Conclusion

Some may believe that civil procedural standards operate in a neutral, identity-free zone and that judges don’t care about litigants’ identities, or their positions within the sociopolitical hierarchy, when deciding procedural issues. But judges are not oblivious to racial identity or its proxies in procedural decisions any more than they are in substantive contexts. Even the perception of, or the attempt to be, oblivious to identity could be another way to allow harmful assumptions to thrive.

Interaction with police cuts across socioeconomic differences within the Black community. We are still at risk of being murdered in extralegal ways. An important step in actualizing some of the goals to protect Black lives is to understand, and work to undo, the ways in which civil procedural doctrine and mechanisms have been deployed to reinforce racial subordination (and the subjugation of other marginalized groups).

Why BIPOC Fails

Introduction

Racial tensions have been endemic to the U.S. since its founding. In 2020, this racial conflict bubbled over into the streets as those supporting Black Lives Matter and opposing a long history of racist police violence congregated to demand justice.1.Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/interactive/‌2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/2Q5H-978V].Show More Last year and still now, the global pandemic has placed additional stress on communities of color, which have been disproportionately affected by and infected with COVID-19.2.Daniel Wood, As Pandemic Deaths Add Up, Racial Disparities Persist—And in Some Cases Worsen, NPR (Sept. 23, 2020, 1:01 PM) (“People of color get sick and die of COVID-19 at rates higher than whites and higher than their share of the population.”), https://www.npr.org/sections/health-shots/2020/09/23/914427907/as-pandemic-deaths-add-up-racial-disparities-persist-and-in-some-cases-worsen [https://perma.cc/TZT9-HHZ2].Show More While they were threatened with loss of life from disease, Black men and women continued to be killed at the hands of police and unchecked vigilantes.3.Jeffrey Fagan & Alexis D. Campbell, Race and Reasonableness in Police Killings, 100 B.U. L. Rev. 951, 957–58 (2020).Show More The question thus became whether to stay home to stay safe from a deadly virus or take to the streets to demand safety from state-sanctioned violence. The result was the largest mass protest in U.S. history, with thousands of Black and Brown people masked up fighting for their lives and thousands of allies standing and shouting beside them.4.Buchanan, Bui & Patel, supra note 1.Show More

This level of activism clearly demonstrates that change is both needed and long overdue. The response from the corporate world,5.Corporations that donated to antiracist causes include Home Depot, Ubisoft, Apple, Facebook, Intel, and Peloton. Isabel Togoh, Corporate Donations Tracker: Here Are the Companies Giving Millions to Anti-Racism Efforts, Forbes (June 1, 2020, 12:10 PM), https://www.forbes.com/sites/isabeltogoh/2020/06/01/corporate-donations-tracker-here-are-the-companies-giving-millions-to-anti-racism-efforts/?sh=3160129d37dc [https://perma.cc/TL8R-FPXT].Show More sports teams and celebrity athletes,6.Taking a Knee: Athletes Protest Against Racism Around the World—in Pictures, The Guardian (Aug. 27, 2020, 4:35 PM) (“[A]thletes around the world have been kneeling in support of Black Lives Matter and wearing the phrase on jerseys and T-shirts while NBA players boycotted game five of their playoff series in protest of the police shooting against Jacob Blake”), https://www.theguardian.com/sport/gallery/2020/aug/27/nba-strike-athletes-kneeling-black-lives-matter-protest [https://perma.cc/D8PH-ULBT].Show More institutions of higher education,7.Joey Hadden, How the Top 25 Colleges and Universities in the US Are Responding to the Black Lives Matter Protests, Bus. Insider (June 25, 2020, 12:56 PM), https://www.businessinsider.com/college-top-us-universities-respond-black-lives-matter-protests-2020-6 [https://perma.cc/692G-PJR6].Show More and people throughout the world8.Jen Kirby, “Black Lives Matter” Has Become a Global Rallying Cry Against Racism and Police Brutality, Vox (June 12, 2020, 7:30 AM) (noting that “[t]he police killing of George Floyd has sparked a worldwide reckoning”), https://www.vox.com/2020/6/12/21285244/‌black-lives-matter-global-protests-george-floyd-uk-belgium.Show More has been largely supportive in terms of recognizing the need for a purposeful commitment to antiracism. One unanswered question asks whether these cries for change could also benefit from an update in the language and terminology that advocates, allies, and academics use when discussing issues of race and racism.9.This Essay introduces these concepts and questions. For more on usage of various terms, limitations of BIPOC, and application to the particular context of legal education, see Meera E. Deo, Beyond BIPOC (in progress 2021) (unpublished manuscript) (on file with author).Show More

At this moment of reckoning, we have the opportunity and responsibility to reexamine our language and the terms we use to name and claim racism and resistance. While we previously settled for small diversity gains, many now push for greater inclusion, equity, and belonging as well as broader antiracist principles demanding action.10 10.See generally Meera E. Deo, The End of Affirmative Action, 100 N. Carolina L. Rev. (forthcoming 2021) (proposing an overhaul of affirmative action policies and suggesting broader inclusion of minority groups by differentiating the experiences of each group and the addition of diversity, equity, and inclusion to existing policies).Show More In the context of higher education, for example, law schools have relied for decades on educational diversity as a rationale for affirmative action—a priority that ignores racism, equity, and representation.11 11.Granted, institutions of higher learning have relied on educational diversity as a justification for affirmative action because no other compelling state interests have been deemed constitutional. Meera E. Deo, The Promise of Grutter: Diverse Interactions at the University of Michigan Law School, 17 Mich. J. Race & L. 63, 68–69 (2011).Show More Yet in 2020, five Black women leaders spearheaded the Law Deans Antiracist Clearinghouse Project to guide the many law schools issuing faculty resolutions committing themselves to becoming (more) antiracist as a signal of more meaningful progress in legal education.12 12.For more on this project, including the five suggested phases schools should engage with on the path to becoming antiracist, see Danielle M. Conway, Danielle Holley-Walker, Kimberly Mutcherson, Angela Onwuachi-Willig & Carla D. Pratt, Law Deans Antiracist Clearinghouse Project, Ass’n Am. Law Schs., https://www.aals.org/antiracist-clearinghouse/ (last visited Mar. 5, 2021) [https://perma.cc/X3Z5-JHQX].Show More A change in terminology does more than add to the lexicon; it also signals a change in priorities for those working towards racial justice. Should there be additional language updates that signal our updated priorities?

Since roughly May 2020, there has been interest within some circles in the new term “BIPOC”—referring to those who are Black, Indigenous, and People of Color.13 13.Sandra E. Garcia, Where Did BIPOC Come From?, N.Y. Times (June 17, 2020), https://www.nytimes.com/article/what-is-bipoc.html [https://perma.cc/H978-PFGG]. The exact origins and sudden popular usage of BIPOC remain unclear, though they are traced in more detail in Beyond BIPOC. Deo, supra note 9, at 18-20.Show More The term first appeared online in 2013 and expanded on social media when taken up mainly by educated elites who see themselves as progressive voices on issues of race or ethnicity, regardless of their own identity backgrounds.14 14.Who Does the Acronym “BIPOC” Actually Serve?, The Takeaway (June 25, 2020), https://www.wnycstudios.org/podcasts/takeaway/segments/acronym-bipoc-race-language?tab=summary [https://perma.cc/K3UY-ZJQ5]; If podcast: Who Does The Acronym BIPOC Actually Serve?, The Takeaway (June 25, 2020). Both race and ethnicity are fluid (rather than fixed) concepts that change over time and in varying contexts. See, e.g., Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 Harv. C.R.–C.L.L. Rev. 1, 8, 10 (1994).Show More However, what has been missing entirely is a wider conversation about usage of the term—why it may be necessary to update language, how it can be a tool in anti-subordination efforts, and whether this particular term is the most effective at this particular time. New language should not take over without community engagement and deep reflection.

While language is key to anti-subordination, BIPOC damages those efforts rather than being helpful, especially among those searching for new language addressing contemporary issues of race and racism. New terms are useful and should be utilized in antiracism efforts; yet BIPOC itself does a disservice to communities of color and efforts to dismantle systems of racial privilege. Centering particular groups only in name ultimately furthers their marginalization because they remain excluded in fact though referenced in the term, erasing the power that comes from participation and inclusion. BIPOC begins with the premise that we should always center two particular racial groups—Black and Indigenous—within the people of color category, though these communities are not always at the center of the issue being discussed. While concentrating on these two groups may make sense in particular contexts, it cannot be true that every example of race and racism should center Black and Indigenous voices or experiences.

This Essay initiates a discussion about how we should critically examine which issues and data are most relevant to our arguments and advocacy efforts and how we should match our terms to the particular groups at the center of those priorities.15 15.The discussion on limitations of BIPOC continues in Deo, supra note 9, at 20-22.Show More This will mean aggregating groups at times and naming them separately at others; whether finding community through unity or standing separately to highlight distinctions, either of these options is better than BIPOC. Particular examples showcase the failures of BIPOC, both in theory and in practice, including ways in which it can be misleading, confusing, and contribute to the invisibility of the very groups that should be centered in particular contexts.

The Essay begins by outlining the relationship between language and anti-subordination, explaining why words matter as an act of resistance. Part II explores the benefits of unity between groups, resulting in pan-racial umbrella communities such as “people of color” and “women of color” that provide greater strength and solidarity to groups that may be distinct but can nevertheless stand together under one umbrella. Part III provides three initial rationales for why BIPOC is not the best term for our times, as well as a series of examples showing how BIPOC is a misleading representation of communities of color in various contexts. Together, these add evidence to the claim that allies, advocates, and academics should not simply use whatever term is currently in vogue but instead critically examine the language we use and carefully match it to our data, priorities, and conclusions.

I. The Language of Anti-Subordination

Language has a direct connection to subordination, and therefore anti-subordination. “Anti[-]subordination theorists contend that guarantees of equal citizenship cannot be realized under conditions of pervasive social stratification,” as is the case currently and has been historically in the U.S.16 16.Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9, 9 (2003); see Adrien Katherine Wing, Introduction to Critical Race Feminism: A Reader 1, 7 (Adrien Katherine Wing ed., 2d ed. 2003); Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139; Owen M. Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107, 151 (1976).Show More Change, they argue, depends in part on law “reform[ing] institutions and practices that enforce the secondary social status of historically oppressed groups.”17 17.Balkin & Siegel, supra note 16.Show More Often, the law follows broad social trends demonstrating change, rather than being a leader in those efforts.18 18.See Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 12–14 (2011); Jamillah Williams, Naomi Mezey & Lisa Singh, #BlackLivesMatter—Getting from Contemporary Social Movements to Legal Change, 12 Calif. L. Rev. Online 1 ( 2021).Show More

Language, on the other hand, is often the leader, providing an opportunity to rethink and reconceptualize ingrained concepts to transcend original meanings using new terms coined by activists and others on the front lines of change. Clearly, language itself (like race) is both socially constructed and fluid—constantly changing, shifting, and evolving. When using language and especially when crafting new terms to think about race, racism, and resistance, it is therefore critically important that racial categories and terminology are grounded not only in history, but in contemporary context.19 19.See generally Jonathan Rosa & Nelson Flores, Unsettling Race and Language: Toward a Raciolinguistic Perspective, 46 Language in Soc’y 621 (2017); Jonathan Rosa, Looking Like a Language, Sounding Like a Race: Raciolingustic Ideologies and the Learning of Latinidad (2019).Show More Furthermore, changes in terminology can be confusing to outsiders (meaning anyone not referenced by the term) and are especially important for allies and others who are eager to support anti-subordination efforts without always knowing which terms or words are currently preferred.

Consider the reclaiming of dyke in the LGBTQ+ context—an opportunity for women oppressed and maligned for being lesbians to reinvent the term, using their claim on language to share pride in how they name and refer to themselves.20 20.Gregory Coles, Emerging Voices: The Exorcism of Language: Reclaimed Derogatory Terms and their Limits, 78 C. Eng. 424, 424–25 (2016).Show More Similarly, recent interest in adopting crip as an identity moniker related specifically to disabled people seeks to de-stigmatize a term long used to denigrate those who have been “othered”21 21.For more on boundaries between groups, including distinctions between “us” vs. “them,” see Fredrik Barth, Introduction to Ethnic Groups and Boundaries 9, 15–16 (Fredrik Barth ed. 1969).Show More and instead reformulate it as a powerful identity marker uniting people around shared experiences, including resistance to assimilation.22 22.See Carrie Sandahl, Queering the Crip or Cripping the Queer? Intersections of Queer and Crip Identities in Solo Autobiographical Performance, 9 GLQ 25, 26–27 (2003); Robert McRuer, Crip Theory: Cultural Signs of Queerness and Disability 40–41 (2006); Jasmine E. Harris, Reckoning with Race and Disability, 130 Yale L.J.F. (forthcoming 2021).Show More

This reclaiming and resistance in language is similarly evident in the context of race. Some scholars have even called for a new academic focus, whether called raciolinguistics or LangCrit, to study the interplay of race, racism, and language.23 23.H. Samy Alim, Introducing Raciolinguistics: Racing Language and Languaging Race in Hyperracial Times, inRaciolinguistics: How Language Shapes Our Ideas about Race 1, 5 (H. Samy Alim, John R. Rickford & Arnetha F. Ball eds., 2016); Alison Crump, Introducing LangCrit: Critical Language and Race Theory, 11 Critical Inquiry in Language Stud. 207, 207 (2014).Show More Understanding that “racial identities can shift across contexts” means that we need new language to take account of those shifts over time.24 24.Alex Shashkevich, Stanford Experts Highlight Link Between Language and Race in New Book, Stan. News (Dec. 27, 2016), https://news.stanford.edu/2016/12/27/link-language-race-new-book/ [https://perma.cc/YDP7-PJBW].Show More More dramatically, scholars and others must recognize “the central role that language plays in processes of racialization,” and act accordingly—working to shape language as a form of anti-subordination.25 25.Id.Show More

There have been many such efforts over time. The shifts and changes and preferred terms of Negro, Colored, Black, and African American are less a signal of evolution and progress and more an opportunity to push back against stereotypes or expectations associated with various terms at various times—since language, like race, is fluid.26 26.See Ben L. Martin, From Negro to Black to African American: The Power of Names and Naming, 106 Pol. Sci. Q. 83, 83 (1991).Show More Like the reinvention of the terms dyke and crip, Black youth reclaiming the N-word is a prime example of a racial group that took language used to oppress them and turned it into a powerful way to reference “solidarity, censure, and a proactive stance that seeks to bring about positive change.”27 27.Jacquelyn Rahman, The N Word: Its History and Use in the African American Community, 40 J. Eng. Linguistics 137, 137 (2012).Show More

The naming of intersectionality also ushered in transformative change in the context of the combination of race and other identity characteristics.28 28.See Crenshaw, supra note 16, at 140 (coining the term).Show More Whether we call it “multiple consciousness, cosynthesis, holism, interconnectivity, [or] multidimensionality,” the revolutionary idea that intersecting identity characteristics define and limit us in various contexts remains essential to anti-subordination.29 29.Wing, supra note 16, at 1, 7.Show More The concept of intersectionality draws from the work of Kimberlé Crenshaw and other legal scholars referring to those with multiple devalued identity characteristics.30 30.See Crenshaw, supra note 16; Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1244 (1991). See generally Wing, supra note 16; Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment23 (2d ed. 2000); Evelyn Nakano Glenn, Unequal Freedom: How Race and Gender Shaped American Citizenship and Labor 6–7 (2002).Show More These Critical Race Theorists argue that those operating at the “intersection of recognized sites of oppression” along multiple domains suffer negative effects based on each as well as all of these identity markers.31 31.Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 58–63 (3d ed. 2017).Show More

Going a step further, we can specifically consider raceXgender identity, which encompasses people whose race intersects with their gender to create not additive (race plus gender) but compounded effects based on identification with two marginalized groups.32 32.Previous scholarship has highlighted how “utilizing the raceXgender nomenclature emphasizes the multifactorial effects of race ‘times’ gender for women of color.” Meera E. Deo, Unequal Profession: Race and Gender in Legal Academia 8 (2019); Meera E. Deo, The Culture of “raceXgender” Bias in Legal Academia, in Power, Legal Education, and Law School Cultures 240, 241 (Meera E. Deo, Mindie Lazarus-Black & Elizabeth Mertz eds., 2019).Show More There are various intersectional combinations even in the race context that could be salient or even essential depending on the arguments being made or issues at hand—including raceXsexual orientation, raceXclass, and raceXage.33 33.Sandahl, supra note 22.Show More These linguistic changes signify the movement to antiracism.

The push for antiracism itself reflects an update in both language and priorities, signaling a shift from protecting diversity to promoting broader action-oriented change. In previous years, advocates were steadfastly focused on promoting racial diversity to advance racial justice. To that end, institutions of higher learning argued in court that admitting a racially diverse student body furthered students’ academic and professional outcomes.34 34.Grutter v. Bollinger, 539 U.S. 306, 328 (2003); Gratz v. Bollinger, 539 U.S. 244, 267 (2003); Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297, 310 (2013); Fisher v. Univ. of Tex. at Austin (Fisher II),136 S. Ct. 2198, 2208 (2016); Deo, supra note 10, at 68–72. The defendants in Bakke also argued there were other reasons to support affirmative action—including to increase minority representation among doctors, reduce societal discrimination, and increase service to disadvantaged communities—though none of these were sanctioned by the Court. Meera E. Deo, Affirmative Action Assumptions, 52 UC Davis L. Rev. 2407, 2412-15 (2019).Show More Those making “the business case for diversity” in the corporate world recognized and touted the connection between a company’s financial performance and its level of diversity along various metrics.35 35.Sundiatu Dixon-Fyle, Vivian Hunt, Kevin Dolan & Sara Prince, McKinsey & Co., Diversity Wins: How Inclusion Matters 13 (2020), https://www.mckinsey.com/~/‌media/McKinsey/Featured%20Insights/Diversity%20and%20Inclusion/Diversity%20wins%20How%20inclusion%20matters/Diversity-wins-How-inclusion-matters-vF.pdf [https://perma.cc/L7RA-3DT9].Show More The military even asserted that diversity among the troops and leaders of its various branches is a necessary ingredient for national security.36 36.Deo, supra note 10, at 65 n.4 (citing and quoting Grutter, 539 U.S. at 331) (“high-ranking retired officers and civilian leaders of the United States military assert that, ‘[b]ased on [their] decades of experience,’ a ‘highly qualified, racially diverse officer corps . . . is essential to the military’s ability to fulfill its principle [sic] mission to provide national security.’”).Show More

In the past decade, interests in diversity have broadened to accentuate inclusion, equity, and belonging.37 37.Elizabeth Bodamer, Belonging in Law School (2021) (Ph.D. dissertation, Indiana University) (on file with author).Show More Using the well-litigated and high profile context of higher education, previous emphasis was on admitting students from different backgrounds in an effort to increase racial diversity on campus for the ostensible purpose of improving the quality of education for all students—which truly reflected an interest in admitting students of color to improve the educational experiences of whites.38 38.See Meera E. Deo, Faculty Insights on Educational Diversity, 83 Fordham L. Rev. 3115, 3117 (2015); Deo, supra note 10, at 3.Show More More recently, scholars and advocates have shifted their perspective to consider not only who is admitted but also the quality of the interactions and experiences of students of color once on campus.39 39.See, e.g., Meera E. Deo & Chad Christensen, Ind. Univ. Ctr. for Postsecondary Research, 2020 Annual Survey Results: Diversity & Exclusion 6 (2020), https://lssse.indiana.edu/wp-content/uploads/2020/09/Diversity-and-Exclusion-Final-9.29.20.pdf [https://perma.cc/3P3A-FK26].Show More This consideration not only of diversity but also of inclusion—“a cultural and environmental feeling of belonging” related to members feeling “valued, respected, accepted and encouraged to fully participate”—thus highlights an interest beyond diversity.40 40.Ella Washington & Camille Patrick, 3 Requirements for a Diverse and Inclusive Culture, GALLUP (Sept. 17, 2018), https://www.gallup.com/workplace/242138/requirements-diverse-inclusive-culture.aspx [https://perma.cc/A82S-U2MV].Show More Similarly, recent efforts to promote equity and belonging signal the importance of moving beyond diversity to consider broader anti-subordination and even antiracist principles.41 41.Deo, supra note 10.Show More

While the commitment to diversity and the rationales behind it remain intact, and that commitment has expanded to include greater inclusion, equity, and belonging, there has also been a shift toward pursuing the more anti-subordination and justice-oriented concept of antiracism. As scholar and author Ibram X. Kendi shares in his trailblazing book, How to Be an Antiracist, “[T]here is no neutrality in the racism struggle…. One either allows racial inequities to persevere, as a racist, or confronts racial inequities, as an antiracist.”42 42.Ibram X. Kendi, How to Be an Antiracist 9 (2019).Show More In this way, Kendi ties personal preferences to praxis, a central tenet of Critical Race Theory emphasizing that racial justice ideas must transcend the page to inspire “theory-informed action.”43 43.Chandra L. Ford & Collins O. Airhihenbuwa, Critical Race Theory, Race Equity, and Public Health: Toward Antiracism Praxis, 100 Am. J. Pub. Health S30, S31 (2010).Show More Thus, Kendi asserts that “being an antiracist requires persistent self-awareness, constant self-criticism, and regular self-examination.”44 44.Kendi, supra note 42, at 23.Show More Language itself is critical to the antiracist endeavor, including promoting or resisting “a whole vocabulary of old and new words—like ‘cultural wars’ and ‘stereotype’ and ‘implicit bias’.”45 45.Id. at 46–47. See also Michele Goodwin, Complicit Bias: Sexual Harassment and the Communities that Sustain It, Huffington Post (Dec. 11, 2017, 2:18AM) (using a new term “complicit bias” to describe community complicity in sustaining institutional bias and harassment in the workplace), https://www.huffpost.com/entry/complicit-bias-sexual-harassment-and-communities-that_b_5a2e238de4b0d7c3f262244f [https://perma.cc/LLB5-Q7DJ].Show More

Language, both old and new, can also be used to group together disparate groups who nevertheless share common experiences, as discussed below for people of color and other groups. Yet with a goal of anti-subordination in mind, we must push against groupings made purely for convenience’s sake, those that diminish or erase minority perspectives, or others that may seem initially useful or even progressive but in actuality serve to subtly reinforce entrenched norms and retrench existing hierarchies.

II. When Unity Leads to Erasure

Often language assumes unity—it creates the ability to bring people together, especially those who have shared identity characteristics. Creating terms to identify a class of heretofore disparate groups serves to bring them together under a new more inclusive umbrella. But what goes missing when groups band together?

Historically, the purpose of these umbrella groups has been to unite people with shared experiences for mutual political and social benefits.46 46.Constance Grady, Why the Term “BIPOC” Is So Complicated, Explained by Linguists, Vox (June 30, 2020, 9:10 AM) (“In the 1960s and ’70s, . . . groups like the Black Panther Party for Self Defense and the Brown Berets came together in solidarity as people of color, which was a new instantiation of the idea of people having color.”) (internal quotations omitted), https://www.vox.com/2020/6/30/21300294/bipoc-what-does-it-mean-critical-race-linguistics-jonathan-rosa-deandra-miles-hercules.Show More People from distinct backgrounds recognized that there was strength in numbers, and so sought out others who shared some (though not all) of their identity characteristics in order to work toward collective change.47 47.Efrén Pérez, (Mis)Calculations, Psychological Mechanisms, and the Future Politics of People of Color, 6 J. Race, Ethnicity & Pol. 33, 36–37 (2021); Efrén O. Pérez, Diversity’s Child: People of Color and the Politics of Identity (manuscript, 3-5) (forthcoming July 2021).Show More Two of these groups are briefly introduced here to provide context for BIPOC.48 48.The origin, evolution, benefits, and limitations of the terms “people of color” and “women of color” are covered in greater detail in Deo, supra note 9.Show More

One example is the term people of color, which bands together those who are Black, Latinx, Asian American, Native American, Arab American, and other non-whites.49 49.Pérez, supra note 47 (manuscript at 1-4). The term “Latinx” itself has come under scrutiny in this ongoing conversation about preferred language for communities, advocates, and allies. Jonathan Rosa, Looking Like a Language, Sounding Like a Race: Raciolinguistic Ideologies and the Learning of Latinidad (2019); Luis Noe-Bustamante, Lauren Mora & Mark Hugo Lopez, About One-in-Four U.S. Hispanics Have Heard of Latinx, but Just 3% Use It, Pew Research Center (Aug. 11, 2020), https://www.pewresearch.org/hispanic/2020/08/11/about-one-in-four-u-s-hispanics-have-heard-of-latinx-but-just-3-use-it [https://perma.cc/24FX-D9LP] (explaining the origins and uses of the term “Latinx”).Show More Pan-ethnic groups that nevertheless have disparate ethnic groupings, also have the capacity to incorporate intersectional identity drawing from race (e.g., Asian American) and ethnicity (e.g., Korean American).50 50.See Yen Le Espiritu, Asian American Panethnicity 19–20 (1992).Show More

Finding unity within raceXgender references the larger grouping of women of color, a community comprised of women who are also people of color.51 51.Wing, supra note 29, at 7.Show More By highlighting intersectional raceXgender, the women of color grouping centers the experience of those who tend to be marginalized within both communities of people of color (where men of color have more privilege and power) and women (where white women have more privilege and power).52 52.See Michele Wallace, A Black Feminist’s Search for Sisterhood, in All the Women Are White, All the Black Are Men, But Some of Us Are Brave: Black Women’s Studies 7, 10 (Gloria T. Hull, Patricia Bell Scott, & Barbara Smith eds., 1982); Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581, 585 (1990); but see Catharine A. MacKinnon, From Practice to Theory, or What Is a White Woman Anyway?, 4 Yale J. L. & Feminism 13, 18 (1991).Show More

Recently joining the conversation about race and terminology is BIPOC, an acronym for Black, Indigenous, and People of Color.53 53.Garcia, supra note 13; The BIPOC Project, https://www.thebipocproject.org/ [https://perma.cc/GS4R-YQWY] (last visited March 19, 2021) (showing the efforts by activists to center the voices of the Black and Indigenous communities by turning to the term “BIPOC”); Grady, supra note 46.Show More BIPOC was popularized on social media, with some educated elites adopting it and others rejecting its inherent exclusivity, especially without much community engagement.54 54.Garcia, supra note 13.Show More Unlike other terms that grew in usage after months or years of community reflection, BIPOC seemingly erupted on the scene and was taken up by academics and the media in summer 2020 as people flocked to the streets to demand an end to police violence targeting the Black community.55 55.Id.Show More While it is essentially a synonym for people of color, advocates use it to intentionally foreground “Black” and “Indigenous,” arguing that these groups are both foundational to understanding the racial history of the U.S. and often not given the recognition they are due within the larger people of color umbrella.56 56.The BIPOC Project, supra note 53; Chevaz Clarke, BIPOC: What Does It Mean and Where Does It Come From?, CBS News (July 2, 2020, 10:04 AM), https://www.cbsnews.com/news/bipoc-meaning-where-does-it-come-from-2020-04-02 [https://perma.cc/P2NW-5ZW7].Show More The term purposefully creates hierarchies between people of color groups, consciously highlighting the two “to acknowledge that not all people of color face equal levels of injustice.”57 57.Clarke, supra note 56.Show More Thus advocates use BIPOC to further a political purpose: to highlight the experience or agenda of Black and Indigenous people as essential, even though they are part of the overall people of color community. However, it is unclear whether changing the label actually creates a commitment to those groups or simply signals change without meaningful progress.

One common phenomenon between each of these terms—people of color, women of color, and BIPOC—is that by striving for collective unity, distinct groups become less visible. For instance, certain groups within the people of color category are routinely marginalized within the umbrella based on their low visibility or representation, including Filipinos and Puerto Ricans (who also tend to be marginalized within their respective pan-ethnic Asian American and Latinx groups).58 58.See generally Anthony Christian Ocampo, The Latinos of Asia: How Filipino Americans Break the Rules of Race (2016) (exploring how Filipinos understand their racial identity).Show More Additionally, male privilege results in the priorities and voices of women of color sometimes being excluded from the larger people of color community (just as they tend not to be prioritized within the larger women’s movement that focuses primarily on white women).59 59.Wing, supra note 16, at 7; Harris, supra note 52, at 585.Show More Women from particular groups within the women of color community can similarly be marginalized or not prioritized, including queer women and Native American women, whose experiences tend to be overlooked within the larger women of color whole.60 60.See, e.g., Victoria Sutton, Guest Post: Native American Exclusion as a Form of Paper Genocide, LSSSE (July 17, 2020), https://lssse.indiana.edu/blog/guest-post-native-american-exclusion-as-a-form-of-paper-genocide [https://perma.cc/SWH3-NUBQ].Show More

BIPOC is purposeful and unapologetic about this exclusion. Because BIPOC purposefully and by definition centers two particular groups (Black and Indigenous), all of the other non-white groups within the fold are marginalized by design, grouped together in the leftover people of color section of BIPOC. Yet Black and Indigenous people are not at the center of every contemporary racial issue. Furthermore, centering these groups in name when they may be excluded from the data or the issue at hand relegates their importance to the periphery of power, signaling disinterest in their actual inclusion.

III. The Failures of BIPOC

The BIPOC term purposefully highlights two groups within the people of color community—Black and Indigenous.61 61.Garcia, supra note 13.Show More Grouping these two together at the exclusion of others is absolutely appropriate in the rare instances where both groups are at the center of the discussion and the data. Generally, however, doing so not only is incorrect but does damage to both the highlighted communities and those that are pushed to the periphery. This Part first provides some theoretical reasons why the BIPOC term does a disservice to various communities of color and then applies theory to practice by examining a variety of contexts in which BIPOC is clearly not the best term for the case.

A. Why BIPOC Fails, in Theory

Those who have been using BIPOC do so in order to show their value and appreciation for Black and Indigenous people even beyond other groups in the people of color community.62 62.The BIPOC Project, supra note 53.Show More These two populations, that have suffered horrifying atrocities and been brushed aside throughout U.S. history, are purposefully pulled to the front. Yet highlighting them in name in every instance referencing race or racism does not necessarily mean their priorities or interests are being represented; sometimes, these two groups are not even relevant to the matter at hand. There are a number of questions to consider before using BIPOC, the answers to which reveal that prioritizing use of the term in all contexts related to communities of color does more harm than good when pursuing antiracist efforts more generally.63 63.The nascent term is also confusing as many, even progressive voices on race/racism, do not know what it means. As a term that has been used largely by educated elites, others have been clueless about it; apparently, many thought it referenced bisexual people of color. NPR Codeswitch, Is It Time To Say R.I.P. to ‘POC’? (Sept. 30, 2020, 12:22AM), https://www.npr.org/2020/09/29/‌918418825/is-it-time-to-say-r-i-p-to-p-o-c [https://perma.cc/8XYN-K78N].Show More

1. Is BIPOC purely symbolic?

Foregrounding the Black and Indigenous communities within people of color is symbolically significant as it indicates the importance of two groups that have long been sidelined in the United States. However, moving two groups to the front and naming them specifically does not have substantial meaning; foregrounding these groups in name only is what Critical Race Theorist Derrick Bell would call a purely symbolic gesture that may pacify calls for change without making any meaningful progress—and thereby ultimately support the status quo of racial inequities even between communities of color.64 64.See Derrick Bell, Faces at the Bottom of the Well: the Permanence of Racism 19 (1992) (arguing that symbolic progress simply provides oppressed groups with the illusion of change without ceding real power, thus further entrenching racial hierarchies).Show More Today, we might call this virtue signaling—using words or actions not for the purpose of moving the needle toward greater progress, but instead primarily to highlight one’s own moral superiority in taking a stance.65 65.Cambridge Dictionary notes that virtue signaling “is the popular modern habit of indicating that one has virtue merely by expressing disgust or favour for certain political ideas or cultural happenings.” Cambridge English Dictionary, Virtual Signaling Definition, [https://perma.cc/F2SX-YWVX]. This definition from Urban Dictionary is even more direct: “To take a conspicuous but essentially useless action ostensibly to support a good cause but actually to show off how much more moral you are than everybody else.” Urban Dictionary, Virtual Signalling Definition, https://www.urbandictionary.com/define.php?term=Virtue%‌20Signalling [https://perma.cc/85A6-GQWT]; see also Deo, supra note 9, at 20.Show More

Data collection on Native Americans is one common and unfortunate example. If there is little or no data on the Native American population for any given project ostensibly about people of color generally and scholars nevertheless report on “the BIPOC experience,” they are actually naming Indigenous communities as central to a project while simultaneously excluding them altogether from the substance.66 66.Sutton, supra note 60.Show More This symbolic inclusion thus suggests that Native populations are central to whatever inquiry is before us but does not insist or even notice whether anyone actually includes them, let alone center their experiences, perspectives, interests, or priorities. Highlighting groups in name only is thus a greater disservice even than excluding them in fact and in name, because it suggests an upheaval of the status quo while actually serving to support it. Centuries of oppression have been sustained on just this form of “progress” that suggests change in name while maintaining ongoing inequities. There is truth to the accusation that unity can lead to erasure, as discussed earlier, but foregrounding a group in name only is pure virtue signaling, which is even more destructive for long-term equity goals.

2. Should every inquiry center Black and Indigenous communities?

What little information exists about the origins and development of BIPOC suggests that the two groups are highlighted for two main reasons. Proponents of BIPOC stress that Black and Indigenous communities are underscored because they have a foundational relationship to race and racism in the United States; in addition, they argue that not all communities of color have suffered equally, so those who have endured the most should be put first.67 67.See Garcia, supra note 13; The BIPOC Project, supra note 53; Clarke, supra note 56.Show More

These rationales rely on two problematic assumptions that, when investigated even briefly, reveal a shaky foundation. First, it is unfounded and counterproductive to assert that the harms of one group are paramount while others are relatively less important; doing so engages in the “Oppression Olympics,” which is “an evocative term to describe intergroup competition and victimhood.”68 68.Ange-Marie Hancock, Solidarity Politics for Millennials: A Guide to Ending the Oppression Olympics 4 (2011).Show More Ranked suffering as a reason to support the BIPOC term relies on comparing the relative oppression of all racial/ethnic groups in the U.S. and concluding that Black and Native peoples should be prioritized in name because they have suffered greater harm than all others. Those who use BIPOC embrace Oppression Olympics by crowing the winners and naming them first because they have suffered the most. This is dangerous for individual groups—both those whose oppression is erased and those who are the supposed winners—as well as destructive for antiracism efforts generally.

Second, even if all advocates agreed that Black and Indigenous people have historically suffered worse and more significant harms than any other racial/ethnic group, that may not justify centering them now by name when referencing all people of color today. There are clear instances of racism that have little or no direct impact on Black or Indigenous communities. At those times, the experiences of people from those communities should not be centered, just as those who are most affected should not be sidelined.69 69.Half a dozen clear examples of race and racism that are not centered on Black and Indigenous communities are presented infra in Part III.B.Show More Using the BIPOC term to reference past harms, especially those endured by Black and Indigenous peoples, could be useful; but assuming a need to prioritize in every current conversation about race, these two groups that have suffered unspeakable historic harms and continue to face oppression today—as do other groups—is misguided. The purposeful sidelining of Latinx, Asian American, Arab American, and other communities of color does not signal progress toward racial justice. Instead, marginalization of these groups promotes racial triangulation, the purposeful hierarchical placement of Asian Americans (and perhaps others) between Black and white with the effect of dividing communities of color and diluting their collective power.70 70.Claire Jean Kim, The Racial Triangulation of Asian Americans, 27 Politics and Society 105, 107 (1999).Show More Rather than feed into that structure, attention to intersectional characteristics and especially recognizing similarities between disparate groups and drawing strength and solidarity from them may promote antiracism, help ameliorate past wrongs, and “ultimately help[] us overcome the Oppression Olympics.”71 71.Id.; Hancock, supra note 68, at 4.Show More

3. Does a historical focus promote contemporary antiracism?

There is no doubt that the foundations of race and racism in the U.S. draw directly from the enslavement of Black people and the attempted genocide of Indigenous peoples. At the same time, race and racism are constantly evolving, with racial projects shifting over time and racial formation always in flux.72 72.Michael Omi & Howard Winant, Racial Formation in the United States (3rd ed. 2015).Show More Centuries of oppression against people of color have revealed various contexts in which even the law has been used to subjugate communities of color in order to preserve power in the hands of the white male elite.73 73.The history of legal support for white privilege is explored in greater depth in Deo, supra note 9, manuscript at 6-9 (in progress).Show More Prioritizing historical discrimination, even chapters as atrocious as slavery and genocide, may not fit with every current racial project or application. At times when there are parallels, these should be noted and highlighted. Drawing a connection to historical atrocities may even reveal the ways in which certain efforts are truly contemporary avatars of age-old racism or discrimination.

Yet different groups today also face different pressures. Although contemporary acts of oppression may not rise to the level of past horrors, they are independently horrific and not necessarily derivative of past atrocities. Just as more covert bias has replaced overt oppression in many acts of contemporary discrimination, racism remains in spite of its shifting form.74 74.Omi & Winant, supra note 72, at 39­–46.Show More Current oppression may not tie directly to slavery or genocide, but manifests in the form of violent hate crimes and xenophobic dehumanizing immigration policies. History will always provide significant context for contemporary racism, but it should not define (in name or otherwise) current racial challenges or acts of racial resistance.

B. When BIPOC Misses the Mark, in Practice

In addition to the broad strokes outlined above illustrating the theoretical limitations of BIPOC, the term also distorts the realities of communities of color in practice. In various instances, using the term BIPOC as a synonym for people of color is not just incomplete or imperfect, but also substantively, empirically, and historically incorrect as well as detrimental. This Part introduces a series of contemporary racial contexts where the name BIPOC, if used, would do more harm than good.75 75.The contexts included in this Section are clear examples drawing from contemporary racial issues in the U.S. where the BIPOC term is not the most useful; future work should apply this thesis to more complex situations that are less clear-cut to determine whether the argument holds. See, e.g., Deo, supra note 9.Show More Under these examples, the term itself does not fit the data/community/conclusion under discussion. In these instances, it is better to use the term people of color, or in other cases to draw attention to the community of women of color, or in still other situations to name the particular race or even raceXgender groups most affected rather than foist them inappropriately under a BIPOC umbrella. Clear examples of how BIPOC can be misleading, confusing, or otherwise damaging are explored next.

1. Managing COVID-19

Discussing the effects of COVID-19 “on BIPOC communities” pretends that we have statistics on Native Americans, when in truth it centers the group in name while ignoring their omission from the data. Communities of color as a whole, and Black and Brown communities in particular, have been unduly impacted by the effects of COVID-19.76 76.Harald Schmidt, Lawrence O. Gostin & Michelle A. Williams, Is It Lawful and Ethical to Prioritize Racial Minorities for COVID-19 Vaccines?, 324 JAMA 2023, 2023 (2020) (“[T]he mortality rate relative to population size is 3.4-fold higher among Black individuals . . ., 3.3-fold higher among Indigenous and Latino communities . . ., 2.9-fold higher among Pacific Islander individuals . . ., and 1.3 higher among Asian [American] populations . . . .”); Harmeet Kaur, The Coronavirus Pandemic Is Hitting Black and Brown Americans Especially Hard on All Fronts, CNN (May 8, 2020, 8:43 PM), https://www.cnn.com/2020/05/08/us/‌coronavirus-pandemic-race-impact-trnd/index.html [https://perma.cc/ZZN4-NLVA].Show More The intersection of race and class is especially salient here as people of color communities with fewer economic resources have had a disproportionate share of infections, hospitalizations, and deaths.77 77.Schmidt, Gostin & Williams, supra note 76, at 2023 (discussing priority vaccines for communities of color because COVID-19 “has disproportionately affected racial minorities in the United States resulting in higher rates of infection, hospitalization, and death”).Show More While those in the Black and Latinx communities have suffered grievous harm, the pandemic may be wreaking even greater devastation on Native American populations, although we do not have reliable data to confirm this conclusion.78 78.Lizzie Wade, COVID-19 Data on Native Americans is ‘A National Disgrace.’ This Scientist Is Fighting to Be Counted, Science (Sept. 24, 2020, 12:20PM), https://www.sciencemag.org/news/2020/09/covid-19-data-native-americans-national-disgrace-scientist-fighting-be-counted [https://perma.cc/AXL2-YVQN].Show More Current research suggests that “Native Americans and Alaskan Natives are four times more likely to be hospitalized from COVID-19.”79 79.Sarah Blake Morgan, Native Americans Embrace Vaccine, Virus Containment Measures, AP News (February 17, 2021), https://apnews.com/article/native-americans-coronavirus-vaccine-9b3101d306442fbc5198333017b4737d.Show More In the past few months, the media has highlighted how some Native American communities have successfully vaccinated virtually all members,80 80.See Nora Mabie, Tribes’ Vaccination Effort Proving To Be a Big Success by Emphasizing Elders and Community, Great Falls Tribune (March 23, 2021, 6:00AM), https://www.greatfallstribune.com/story/news/2021/03/23/montana-native-american-tribes-see-successful-covid-19-vaccine-rollout/4801837001/ [https://perma.cc/KX8E-S94U], (“The Blackfeet Nation has successfully vaccinated more than 95% of its eligible population.”); Harmeet Kaur, Tribal Health Providers Have Figured Out the Key to Covid-19 Vaccine Success. Here’s Their Secret, CNN (February 26, 2021, 8:16AM), https://www.cnn.com/‌2021/02/09/us/tribal-health-providers-covid-vaccine-trnd/index.html [https://perma.cc/JP94-KX4N].Show More while others struggle to reach the undecided.81 81.Jack Healy, Plenty of Vaccines, but Not Enough Arms: A Warning Sign in Cherokee Nation, N.Y. Times (March 16, 2021), https://www.nytimes.com/2021/03/16/us/vaccines-covid-cherokee-native-americans.html [https://perma.cc/EB2A-6F8F].Show More There is significant misinformation and missing information.

Researchers do know that COVID-19 “has taken a disproportionate toll on many Indigenous communities in the United States,” yet the “full impact” of the disease on Native Americans remains unclear based on “racial misclassification and the exclusion of Indigenous communities from data sets and analyses used to make health policy decisions.”82 82.Wade, supra note 78.Show More Using BIPOC would not only be incorrect but also intentionally misleading, as the language implies that Native Americans are central to the data, when in fact they are missing. Ideally, public officials would collect that data and report it along with data on other racial/ethnic groups, but in the absence of data on Native Americans, it is clearly better to acknowledge that the group is not included rather than pretend they are by foregrounding them in name only. The data and information we do have suggest that culture, tradition, following the example of elders, and linguistic reasons are driving vaccine uptake; none of these seem critical for efforts to gain vaccine trust in the Black community, negating the need to group these communities together.83 83.Caroline Radnofsky, Matteo Moschella & Corky Siemaszko, Native Americans Use Culture and Community to Gain Tribes’ Trust in Covid Vaccine, NBC News (Feb. 3, 2021, 6:32PM), https://www.nbcnews.com/news/us-news/native-americans-use-culture-comm‌unity-gain-tribes-trust-covid-vaccine-n1256647 [https://perma.cc/M2TX-LQWA]; Kaur, supra note 80.Show More

Another group disproportionately affected by the coronavirus is Filipino nurses—not nurses as a whole, not people of color generally, not even Filipinos as a group, but Filipino nurses specifically.84 84.National Nurses United, Sins of Omission 12 (2020), https://www.nationalnursesunited.‌org/sites/default/files/nnu/graphics/documents/0920_Covid19_SinsOfOmission_Data_Report.pdf [https://perma.cc/YZ3W-MLXV]. There is likely a raceXgender effect here too, with greater numbers of Filipinas dying of COVID-19 than even their male counterparts.Show More As of September 2020, thirty-two percent of the registered nurses (RNs) who had died of COVID-19 were Filipino, although Filipinos comprise just four percent of RNs in the U.S.85 85.Id. at 5.Show More Centering Black and Indigenous populations in this conversation—when even a majority (fifty-four percent) of RNs of color who have died of COVID-19 are Filipino—does a disservice to Filipinos by rendering them invisible, lumping them into “other people of color,” while highlighting Black and Indigenous people who are neither the most relevant nor the most impacted in this scenario.86 86.Id.Show More

Pretending that these unique intersectional and historically-based experiences affect Black and Indigenous people in a deeper way than other people of color is disingenuous. COVID-19 has affected Black people differently than it has the Indigenous people—though both communities have suffered terrible consequences due to various structural constraints and limitations. However, grouping them together as BIPOC implies that the Black experience is similar to the Indigenous one, when in fact they are quite different; it also ignores the ways in which Filipinos and others carry a disproportionate share of the burden of deaths among nurses. Instead, journalists, advocates, and others should specify the individual groups involved and impacted in order to honestly report on the experiences of those affected by the pandemic within communities of color.

2. Health Disparities

Before COVID-19, decades of research have documented health disparities between whites and non-whites, especially focused on negative health outcomes for Black patients.87 87.John F. Dovidio and Samuel L. Gaertner, Aversive Racism, in Advances in Experimental Social Psychology 2 (M.P. Zanna ed., 2004); Louis A. Penner, et al., The Experience of Discrimination and Black-White Health Disparities in Medical Care, 35 J. Black Psych. 180, 181 (2009).Show More In comparison, there is little research documenting health effects of Native Americans who are engaged in similar healthcare settings and experiences as non-Native groups—again rendering the BIPOC term inappropriate in this context.88 88.Mary Smith, Native Americans: A Crisis in Health Equity, American Bar Association, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-state-of-healthcare-in-the-united-states/native-american-crisis-in-health-equity [https://perma.cc/UJ2S-BF23].Show More Furthermore, this year under COVID-19, researchers have documented specific negative health outcomes for Black and Latina pregnant women in certain populations.89 89.Leila Goldstein, Latina and Black Pregnant Women Show High Rates of COVID-19 in Southwest Ohio, WOSU Public Media (Jul. 14, 2020), https://radio.wosu.org/post/latina-and-black-pregnant-women-show-high-rates-covid-19-southwest-ohio#stream/0 [https://perma.cc/D3FM-T8EU].Show More The documented populations with increased COVID-19 exposure are limited to two particular raceXgender groups: Black women and Latinas. It would be incorrect to call this a problem affecting the healthcare of Black people generally or the Latinx community as a whole, as men are not pregnant and thus not affected. Similarly, research does not suggest that Asian American women or others beyond the two groups studied have endured similar negative health effects—meaning that even women of color would not be as precise a term, let alone people of color. As with health disparities generally, the little data available on Native Americans means that centering them by name using BIPOC would actually do a disservice to the community, representing purely symbolic inclusion through virtue signaling without actual knowledge of effects on the Indigenous community.

3. Contemporary Hate Crimes

Beyond health effects, COVID-19 and political responses to the coronavirus caused increases in hate crimes against particular populations throughout the U.S. in 2020 and 2021.90 90.Stop AAPI Hate released a report in August 2020 showing increases in hate crimes against Asian Americans and Pacific Islanders since March 19, 2020. Stop AAPI Hate, Stop AAPI Hate National Report 3.19.20 – 2.28.21, https://secureservercdn.net/104.238.69.231/a1w.90d. ‌myftpupload.com/wp-content/uploads/2021/03/210312-Stop-AAPI-Hate-National-Report-.pdf [https://perma.cc/W3TJ-FAAU]; Kimmy Yam, Anti-Asian Hate Crimes Increased by Nearly 150% in 2020, Mostly in N.Y. and L.A., New Report Says, NBC News (March 9, 2021, 3:37PM), https://www.nbcnews.com/news/asian-america/anti-asian-hate-crimes-increased-nearly-150-2020-mostly-n-n1260264 [https://perma.cc/738D-D9ML]; Seashia Vang, US Government Should Better Combat Anti-Asian Racism, More than 1,000 COVID-19 Related Incidents Reported, Human Rights Watch Dispatches (Apr. 17, 2020, 10:00AM), https://www.hrw.org/news/2020/04/17/us-government-should-better-combat-anti-asian-racism# [https://perma.cc/TF9C-BUDV].Show More Specifically targeted—through acid attacks, beatings, racial slurs, and workplace discrimination—were people who are Chinese, Chinese American, or those who were mistaken by their assailants as having Chinese ancestry.91 91.Stop AAPI Hate reports that 40% of survivors had Chinese ancestry, the largest ethnic group affected. As these attacks depend on external identification, the “Asian” label based on phenotype was likely used as a proxy for “Chinese” and resulted in victimization. Stop AAPI Hate, supra note 90 at 1; Vang, supra note 90.Show More The recent killing of Asian American women specifically foregrounds violence based specifically on raceXgender identity, not about people of color, women of color, and definitely not Black and Indigenous people.92 92.Yam, supra note 90 (revealing that “while [hate] crimes in 2020 decreased overall by 7 percent, those targeting Asian people rose by nearly 150 percent”).Show More Many news articles made a direct connection between high profile politicians calling COVID-19 the “Chinese virus,” “Kung flu,” or other racialized terms and heightened animosity against Asian Americans, especially from whites.93 93.Vang, supra note 90; Hannah Miao, Lawmakers Call for Change in Covid Rhetoric Amid Rise in Violence Against Asian Americans, CNBC (March 18, 2021, 5:36PM), https://www.cnbc.com/2021/03/18/lawmakers-call-for-change-in-covid-rhetoric-amid-violence-against-asian-americans.html [https://perma.cc/9886-4S9S].Show More These attacks are not stand-alone acts of violence but are tied to a long history of Chinese exclusion and the hyper-sexualization of Asian and Asian American women.94 94.Harmeet Kaur, Fetishized, Sexualized and Marginalized, Asian Women Are Uniquely Vulnerable to Violence, CNN (March 17, 2021, 8:22PM), https://www.cnn.com/2021/‌03/17/us/asian-women-misogyny-spa-shootings-trnd/index.html [https://perma.cc/MH2B-XMK5].Show More They also draw from the racial triangulation inherent in perceptions of Asian Americans as the “model minority” but nevertheless perpetually foreign.95 95.Kim, supra note 70, at 107–08.Show More

Black and Indigenous people did not experience a rise in hate crimes against them in 2020 because they were not targeted for spreading the coronavirus in the U.S.96 96.In fact, hate crimes decreased for most groups in 2020. Yam, supra note 90.Show More Speaking about this increase in hate crimes against Asian Americans as a BIPOC issue would be incorrect. It would be devastating as well as inaccurate to center Black and Indigenous communities in this conversation, which is not about them or their suffering. Furthermore, using the BIPOC term in this instance would do a disservice to the very Asian Americans who are most affected by these attacks by erasing them from the narrative—relegating them to one of the many invisible remnant people of color groups within BIPOC rather than singling them out as the primary targets of these crimes. Instead, these crimes tie directly to the perception of Asian Americans as forever foreign, un-American, outsiders.97 97.Angelo N. Ancheta, Race, Rights, and the Asian American Experience 16 (1998).Show More

Similarly, increases in hate crimes against Arab Americans and South Asian Americans in the immediate aftermath of the terrorist attacks of September 11 should not now be remembered as a broad BIPOC problem; clearly, particular groups within the umbrella of people of color were targeted and none are highlighted by using the BIPOC moniker.98 98.See Bryan D. Byers & James A. Jones, The Impact of the Terrorist Attacks of 9/11 on Anti-Islamic Hate Crime, 5 J. of Ethnicity in Crim. Just. 43, 43 (2007) (“A statistically significant increase in anti-Islamic hate crime occurred after 9/11 . . . .”); Post 9-11 Backlash, SAALT, https://saalt.org/policy-change/post-9-11-backlash [https://perma.cc/L9SR-XWFB] (“Since Sep­tem­ber 11th, [2001,] South Asian, Sikh, Mus­lim, and Arab Amer­i­cans have been the tar­gets of numer­ous hate crimes, as well as employ­ment dis­crim­i­na­tion, bul­ly­ing, harass­ment, and pro­fil­ing.”).Show More The increase in hate crimes from two decades ago affected neither the Black nor the Indigenous communities in the way in which it terrorized South Asian, Arab American, and Muslim groups.99 99.Cynthia Lee, Hate Crimes and the War on Terror (2008) (“In the days, weeks, and months immediately following the 9/11 attacks, Arab-Americans, South Asian-Americans, Muslim-Americans, and Sikh-Americans were the targets of widespread hate violence”); Elly Belle, Yes, 9/11 Did Cause an Increase in Islamophobia, Refinery 29 (Sept. 11, 2020, 2:39PM), https://www.refinery29.com/en-us/2020/09/10019797/islamophobia-after-911-september-11-hate-crimes [https://perma.cc/C8F5-DWFW] (noting hate crimes against Muslims jumped from 28 in 2000 to 481 in 2001).Show More Utilizing BIPOC terminology when discussing these hate crimes would further marginalize the very victims most impacted by those acts of violence by purposefully centering two groups (Black and Indigenous people) whose experiences are not actually central to the hate incidents or ongoing harms.

4. Police Violence

Black men are more likely than any other raceXgender group to experience violence at the hands of the police.100 100.Jeffrey Fagan & Alexis D. Campbell, Race and Reasonableness in Police Killings, 100 Boston U. L. Rev. 951, 1007-08 (2020).Show More They are “more than twice as likely to be killed by police than are persons of other racial or ethnic groups . . . .”101 101.Id. at 951.Show More As such, police violence is not a BIPOC problem.

While there are a number of issues involving Native Americans and law enforcement—involving tribal sovereignty, jurisdictional concerns, discretionary measures, and enforcement—the experiences of Indigenous people interacting with police are not the same as or even similar to those of Black men.102 102.See Addie C. Rolnick, Recentering Tribal Criminal Jurisdiction, 63 UCLA L. Rev. 1638, 1647 n.29 (2016) (discussing various “grey areas” between criminal law and tribal jurisdiction “neither Congress nor the Supreme Court has directly addressed”); Jeffery T. Ulmer & Mindy S. Bradley, Criminal Justice in Indian Country: A Theoretical and Empirical Agenda, 2 Ann. Rev. Criminology 337, 337 (2019) (discussing “the complexities of criminal jurisdiction in Indian Country”).Show More Black women also are targets of police violence, as we know from the state-sanctioned killings of Breonna Taylor, Sandra Bland, Attatiana Jefferson, and dozens of others.103 103.Brianna Scott, Author: Black Women’s Experiences with Police Brutality Must Be ‘Invisible No More’, NPR (July 16, 2020, 5:37PM), https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/07/16/892015743/author-black-womens-experiences-with-police-brutality-must-be-invisible-no-more [https://perma.cc/UN3P-5ND7]Show More Yet the crisis that is police violence against Black men is not only racial but involves raceXgender biases, stereotypes, and life ending outcomes. No other group has suffered as much targeting of state-sanctioned violence as Black men.104 104.Tia Sherée Gaynor, Seong C. Kang, & Brian N. Williams, Segregated Spaces and Separated Races: The Relationship Between State-Sanctioned Violence, Place, and Black Identity, 7 The Russell Sage Found. J. of the Soc. Sci. 50 (2021).Show More Rather than group them with Black women and Indigenous men and women—as would be the case if we centered them through BIPOC terminology—advocates supporting Black Lives Matter and other efforts for police reform should continue to raise awareness that this should be a concern for all people though it affects, first and foremost, Black men.105 105.Williams, Mezey & Singh, supra note 18.Show More Using BIPOC here, as elsewhere, would be both incorrect and inappropriate. Continuing to center Black Lives Matter, which recognizes the challenges facing both Black men and Black women in police interactions, is critical to the effort. Changing the narrative to BIPOC Lives Matter would clearly be counterproductive as well as improper in dealings with this and other state-sanctioned violence.

5. Mass Incarceration

Over the past two decades, advocates have drawn significant attention to the mass incarceration and resulting disenfranchisement of Black men—not men of color, not people of color, not even Black women to the same degree.106 106.See Michelle Alexander, The New Jim Crow 19 (2020).Show More “Black men are six times as likely to be incarcerated as white men,” a disparity larger than any other raceXgender group.107 107.The Sentencing Project, Criminal Justice Facts (2020), https://www.sentencingproject.‌org/criminal-justice-facts [https://perma.cc/4Y2H-4VZY].Show More

As with police violence, it would be disingenuous to talk about mass incarceration as an issue affecting those in the BIPOC community. Doing so would center one group (Black people) appropriately and another group (Indigenous people) inappropriately, since the little data we have on Indigenous incarceration rates suggest that while over-incarceration is a problem, the causes and context involving the Indigenous population are very different from those facing Black men.108 108.Roxanne Daniel, Since You Asked: What Data Exists about Native American People in the Criminal Justice System?, Prison Policy Initiative (Apr. 22, 2020) (“While Census data reveals that Native populations are overrepresented in the criminal justice system, other information that could shed more light on the issue is sparse”), available at: https://www.prisonpolicy.org/blog/2020/04/22/native [https://perma.cc/S57V-HGUB].Show More Latino men, who are twice as likely to be incarcerated as white men, are facing a crisis as well though it is different from what their Black male counterparts endure.109 109.The Sentencing Project, supra note 107.Show More Instead, because the raceXgender group targeted by criminal justice policies is Black men, that is the community that should specifically be named by allies, advocates, and academics who seek to draw attention to the problem.

6. Current Immigration Policies

The immigration context as a whole is one that cannot draw in a straightforward fashion from BIPOC terminology and still do justice to the groups most affected. A majority of recent immigrants to the U.S. are from Asia and Latin America, neither of which are foregrounded in BIPOC language. Why then would advocates for immigration reform or racial justice in the immigration context talk about the experiences of people from the BIPOC community? Instead, Latinx and Asian Americans should be highlighted in most discussions related to historical or contemporary U.S. immigration policy.110 110.While migration from the African continent to the U.S. has increased significantly in the past few decades, it is a comparatively small fraction of overall immigration; Black immigrants represent about 3% of the U.S. foreign-born population. See Randy Capps, Kristen McCabe & Michael Fix, Diverse Streams: African Migration to the United States, 2 Migration Policy Institute (2012), https://www.migrationpolicy.org/pubs/CBI-AfricanMigration.pdf [https://perma.cc/DRA9-FLF4].Show More

There are of course specific contexts even within the immigration arena where it is even more critical that we carefully name the groups affected and center their experiences over all others. Family separation—the policy whereby children were separated from parents applying for asylum or seeking immigration at the U.S.-Mexico border—is a prime example.111 111.Teo Armus & Maria Sacchetti, The Parents of 545 Children Separated at the Border Still Haven’t Been Found. The Pandemic Isn’t Helping, Wash. Post (Oct. 21, 2020, 6:28PM), https://www.washingtonpost.com/nation/2020/10/21/family-separation-parents-border-covid [https://perma.cc/3NNU-AQJW].Show More Of the 545 children who were taken from their families as early as July 2017 and whose parents cannot now be found, over two-thirds are from Central America; many are currently living with sponsors or extended family members in the U.S., most of whom are likely Latinx as well.112 112.Some of these children may also have Indigenous roots, though in a very different context, history, and environment than Native Americans.Show More Clearly this is an issue that directly affects the Latinx community (a group with significant intra-racial diversity even with regard to ethnicity, language, culture, and other characteristics) over all others, even other immigrants; family separation is not an issue or experience that should center Black or Indigenous Americans over the community that is currently suffering the greatest harm and has the most to gain from a current reckoning and potential reformation.113 113.BIPOC would also be misleading in the immigration context when referencing how U.S. foreign policy prevented people from many predominantly Muslim nations from lawfully entering the country between 2017 and 2021. Shoba Sivaprasad Wadhia, National Security, Immigration and the Muslim Bans, 75 Wash. & Lee L. Rev. 1475 (2018); Proclamation No. 10141, 86 Fed. Reg. 7005 (Jan 20, 2021).Show More

Conclusion

In 2020, we witnessed a racial reckoning in the wake of thousands in the streets protesting police violence against the Black community. It remains to be seen whether there will be a resulting reformation, and, if so, whether it will manifest as small but meaningful steps in line with past anti-subordination principles or a long overdue restructuring of the racial hierarchy on the path toward antiracism. Any reformation must pay careful attention to the language we use—including changes in terms involving race, racism, and resistance. There must be opportunities for communities—people of color collectively and separately—to navigate new terms and advocate for how they themselves prefer to be identified.114 114.This Essay lays a foundation for how advocates, academics, and allies should use racial language; it does not prescribe how individuals identify themselves.Show More How we name things is a powerful marker of our priorities and preferences. For instance, while efforts to advance diversity remain, they are now increasingly supplemented with meaningful attention to promote antiracist action. Those who previously pushed for people from diverse backgrounds to have a seat at the table are now demanding their voices be heard and included in decision making.115 115.Deo, supra note 10.Show More

Yet we must safeguard against modifications in language that take hold without advancing real progress. Change may not mean evolution or forward progress. New terms are not always better, especially without grassroots efforts or meaningful reflection among community members. When considering language that groups people from different backgrounds together, the term BIPOC is not better than those previously in use. Using the name people of color gives non-whites from all backgrounds an opportunity to band together when considering issues involving them all, and especially differences between them as a group as compared to whites. Similarly, allies, advocates, and academics who seek to incorporate the critical intersection of raceXgender in particular instances should continue to utilize the term women of color. When individual groups should be highlighted in particular contexts, those should be named specifically instead of using people of color, women of color, or BIPOC.

Using the term BIPOC, however, creates a hierarchy within people of color preferring two groups that, while foundational to U.S. race relations, may not be foundational to every contemporary project or discussion involving race. Furthermore, although the term centers Black and Indigenous people in name, these groups may nevertheless remain at the periphery of power and inclusion—for instance, as continuously occurs when Native Americans are excluded from the data on empirical projects that then seek to reach sweeping generalized conclusions. Virtue signaling—making changes only in name and for the express purpose of highlighting one’s morality—does not indicate progress.

Instead of blindly using the term BIPOC, allies, academics, and advocates should think critically about the issue they seek to promote, consider the data or arguments they have to support their efforts or conclusions, and utilize the term that best fits their needs. Sometimes this will be people of color, when considering how the experiences of people of color as a whole differ from those of whites. Other instances call for the use of women of color, especially when highlighting differences by raceXgender and drawing attention to the experiences of women (as distinct from men of color) from a variety of non-white backgrounds (as distinct from white women).

This Essay has demonstrated instances where BIPOC clearly fails. It can be misleading, overly simplistic, and even incorrect when centering the experiences of Black and Indigenous communities over others within the people of color umbrella. This belittles those who are virtually erased, ignores the realities of the issue under review, and harms the communities it purports to highlight by centering them in name only. It is critical that academics, advocates, and allies utilize language that is better than BIPOC, as is evident after applying the thesis to the clear examples outlined earlier where particular groups, besides Black and Indigenous, must be foregrounded.

The next step in future work is to apply the main thesis presented here—that individual groups should be named and highlighted depending on the context, data, or argument, rather than using the BIPOC term for every racialized situation—to more complex and complicated circumstances. It is easy to see how BIPOC should not be used when discussing immigration policy or hate crimes against Asian Americans during the coronavirus pandemic, but what about the more challenging context of legal education, considering how students from different backgrounds perceive issues of diversity, or how raceXgender background affects law faculty experiences?116 116.The thesis that using the BIPOC term does not work in particular situations is applied to the more complicated context of legal education in Deo, supra note 9.Show More Analyzing this thesis through these and other more nuanced examples will illustrate its broader reach and application.

In both simple and complex cases, grouping disparate peoples together can serve to increase power and political clout; yet it can also erase those who are minorities within the groups. To avoid that risk in particular circumstances, it is sometimes best to disaggregate data and separate groups. The most effective use of language is when allies, advocates, and academics use the names of the groups actually included and centered in the arguments themselves, paying close attention to the context and the communities involved and utilizing matching terms. Although BIPOC fails, there are other paths forward that will lead to more meaningful change.

  1. * JD, PhD, Professor of Law, Thomas Jefferson School of Law; William H. Neukom Fellows Research Chair in Diversity and Law, American Bar Foundation (ABF); Director, Law School Survey of Student Engagement (LSSSE). This Essay benefitted from feedback from and conversations with Guy-Uriel Charles, Luis Fuentes-Rohwer, Anil Kalhan, Taleed El-Sabawi, Kevin Johnson, Fred Smith, Louise Melling, Raquel Muniz, Orin Kerr, Elizabeth Mertz, Gautam Hans, Kirsten Matoy Carlson, Efrén Pérez, Franita Tolson, and Shaun Ossei-Owusu. Finally, I am grateful to the Virginia Law Review editorial team, especially Allison Burns, Andrew Tynes, Rachel Slepoi, and Elizabeth Adler. All errors and opinions are my own.

  2. Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/interactive/‌2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/2Q5H-978V].

  3. Daniel Wood, As Pandemic Deaths Add Up, Racial Disparities Persist—And in Some Cases Worsen, NPR (Sept. 23, 2020, 1:01 PM) (“People of color get sick and die of COVID-19 at rates higher than whites and higher than their share of the population.”), https://www.npr.org/sections/health-shots/2020/09/23/914427907/as-pandemic-deaths-add-up-racial-disparities-persist-and-in-some-cases-worsen [https://perma.cc/TZT9-HHZ2].

  4. Jeffrey Fagan & Alexis D. Campbell, Race and Reasonableness in Police Killings, 100 B.U. L. Rev. 951, 957–58 (2020).

  5. Buchanan, Bui & Patel, supra note 1.

  6. Corporations that donated to antiracist causes include Home Depot, Ubisoft, Apple, Facebook, Intel, and Peloton. Isabel Togoh, Corporate Donations Tracker: Here Are the Companies Giving Millions to Anti-Racism Efforts, Forbes (June 1, 2020, 12:10 PM), https://www.forbes.com/sites/isabeltogoh/2020/06/01/corporate-donations-tracker-here-are-the-companies-giving-millions-to-anti-racism-efforts/?sh=3160129d37dc [https://perma.cc/TL8R-FPXT].

  7. Taking a Knee: Athletes Protest Against Racism Around the World—in Pictures, The Guardian (Aug. 27, 2020, 4:35 PM) (“[A]thletes around the world have been kneeling in support of Black Lives Matter and wearing the phrase on jerseys and T-shirts while NBA players boycotted game five of their playoff series in protest of the police shooting against Jacob Blake”), https://www.theguardian.com/sport/gallery/2020/aug/27/nba-strike-athletes-kneeling-black-lives-matter-protest [https://perma.cc/D8PH-ULBT].

  8. Joey Hadden, How the Top 25 Colleges and Universities in the US Are Responding to the Black Lives Matter Protests, Bus. Insider (June 25, 2020, 12:56 PM), https://www.businessinsider.com/college-top-us-universities-respond-black-lives-matter-protests-2020-6 [https://perma.cc/692G-PJR6].

  9. Jen Kirby, “Black Lives Matter” Has Become a Global Rallying Cry Against Racism and Police Brutality, Vox (June 12, 2020, 7:30 AM) (noting that “[t]he police killing of George Floyd has sparked a worldwide reckoning”), https://www.vox.com/2020/6/12/21285244/‌black-lives-matter-global-protests-george-floyd-uk-belgium.

  10. This Essay introduces these concepts and questions. For more on usage of various terms, limitations of BIPOC, and application to the particular context of legal education, see Meera E. Deo, Beyond BIPOC (in progress 2021) (unpublished manuscript) (on file with author).

  11. See generally Meera E. Deo, The End of Affirmative Action, 100 N. Carolina L. Rev. (forthcoming 2021) (proposing an overhaul of affirmative action policies and suggesting broader inclusion of minority groups by differentiating the experiences of each group and the addition of diversity, equity, and inclusion to existing policies).

  12. Granted, institutions of higher learning have relied on educational diversity as a justification for affirmative action because no other compelling state interests have been deemed constitutional. Meera E. Deo, The Promise of Grutter: Diverse Interactions at the University of Michigan Law School, 17 Mich. J. Race & L. 63, 68–69 (2011).

  13. For more on this project, including the five suggested phases schools should engage with on the path to becoming antiracist, see Danielle M. Conway, Danielle Holley-Walker, Kimberly Mutcherson, Angela Onwuachi-Willig & Carla D. Pratt, Law Deans Antiracist Clearinghouse Project, Ass’n Am. Law Schs., https://www.aals.org/antiracist-clearinghouse/ (last visited Mar. 5, 2021) [https://perma.cc/X3Z5-JHQX].

  14. Sandra E. Garcia, Where Did BIPOC Come From?, N.Y. Times (June 17, 2020), https://www.nytimes.com/article/what-is-bipoc.html [https://perma.cc/H978-PFGG]. The exact origins and sudden popular usage of BIPOC remain unclear, though they are traced in more detail in Beyond BIPOC. Deo, supra note 9, at 18-20.

  15. Who Does the Acronym “BIPOC” Actually Serve?, The Takeaway (June 25, 2020), https://www.wnycstudios.org/podcasts/takeaway/segments/acronym-bipoc-race-language?tab=summary [https://perma.cc/K3UY-ZJQ5]; If podcast: Who Does The Acronym BIPOC Actually Serve?, The Takeaway (June 25, 2020). Both race and ethnicity are fluid (rather than fixed) concepts that change over time and in varying contexts. See, e.g., Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 Harv. C.R.–C.L.L. Rev. 1, 8, 10 (1994).

  16. The discussion on limitations of BIPOC continues in Deo, supra note 9, at 20-22.

  17. Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9, 9 (2003); see Adrien Katherine Wing, Introduction to Critical Race Feminism: A Reader 1, 7 (Adrien Katherine Wing ed., 2d ed. 2003); Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139; Owen M. Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107, 151 (1976).

  18. Balkin & Siegel, supra note 16.

  19. See Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 12–14 (2011); Jamillah Williams, Naomi Mezey & Lisa Singh, #BlackLivesMatter—Getting from Contemporary Social Movements to Legal Change, 12 Calif. L. Rev. Online 1 ( 2021).

  20. See generally Jonathan Rosa & Nelson Flores, Unsettling Race and Language: Toward a Raciolinguistic Perspective, 46 Language in Soc’y 621 (2017); Jonathan Rosa, Looking Like a Language, Sounding Like a Race: Raciolingustic Ideologies and the Learning of Latinidad (2019).

  21. Gregory Coles, Emerging Voices: The Exorcism of Language: Reclaimed Derogatory Terms and their Limits, 78 C. Eng. 424, 424–25 (2016).

  22. For more on boundaries between groups, including distinctions between “us” vs. “them,” see Fredrik Barth, Introduction to Ethnic Groups and Boundaries 9, 15–16 (Fredrik Barth ed. 1969).

  23. See Carrie Sandahl, Queering the Crip or Cripping the Queer? Intersections of Queer and Crip Identities in Solo Autobiographical Performance, 9 GLQ 25, 26–27 (2003); Robert McRuer, Crip Theory: Cultural Signs of Queerness and Disability 40–41 (2006); Jasmine E. Harris, Reckoning with Race and Disability, 130 Yale L.J.F. (forthcoming 2021).

  24. H. Samy Alim, Introducing Raciolinguistics: Racing Language and Languaging Race in Hyperracial Times, in Raciolinguistics: How Language Shapes Our Ideas about Race 1, 5 (H. Samy Alim, John R. Rickford & Arnetha F. Ball eds., 2016); Alison Crump, Introducing LangCrit: Critical Language and Race Theory, 11 Critical Inquiry in Language Stud. 207, 207 (2014).

  25. Alex Shashkevich, Stanford Experts Highlight Link Between Language and Race in New Book, Stan. News (Dec. 27, 2016), https://news.stanford.edu/2016/12/27/link-language-race-new-book/ [https://perma.cc/YDP7-PJBW].

  26. Id.

  27. See Ben L. Martin, From Negro to Black to African American: The Power of Names and Naming, 106 Pol. Sci. Q. 83, 83 (1991).

  28. Jacquelyn Rahman, The N Word: Its History and Use in the African American Community, 40 J. Eng. Linguistics 137, 137 (2012).

  29. See Crenshaw, supra note 16, at 140 (coining the term).

  30. Wing, supra note 16, at 1, 7.

  31. See Crenshaw, supra note 16; Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1244 (1991). See generally Wing, supra note 16; Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment

    23

    (2d ed. 2000); Evelyn Nakano Glenn, Unequal Freedom: How Race and Gender Shaped American Citizenship and Labor 6–7 (2002).

  32. Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 58–63 (3d ed. 2017).

  33. Previous scholarship has highlighted how “utilizing the raceXgender nomenclature emphasizes the multifactorial effects of race ‘times’ gender for women of color.” Meera E. Deo, Unequal Profession: Race and Gender in Legal Academia 8 (2019); Meera E. Deo, The Culture of “raceXgender” Bias in Legal Academia, in Power, Legal Education, and Law School Cultures 240, 241 (Meera E. Deo, Mindie Lazarus-Black & Elizabeth Mertz eds., 2019).

  34. Sandahl, supra note 22.

  35. Grutter v. Bollinger, 539 U.S. 306, 328 (2003); Gratz v. Bollinger, 539 U.S. 244, 267 (2003); Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297, 310 (2013); Fisher v. Univ. of Tex. at Austin (Fisher II), 136 S. Ct. 2198, 2208 (2016); Deo, supra note 10, at 68–72. The defendants in Bakke also argued there were other reasons to support affirmative action—including to increase minority representation among doctors, reduce societal discrimination, and increase service to disadvantaged communities—though none of these were sanctioned by the Court. Meera E. Deo, Affirmative Action Assumptions, 52 UC Davis L. Rev. 2407, 2412-15 (2019).

  36. Sundiatu Dixon-Fyle, Vivian Hunt, Kevin Dolan & Sara Prince, McKinsey & Co., Diversity Wins: How Inclusion Matters 13 (2020), https://www.mckinsey.com/~/‌media/McKinsey/Featured%20Insights/Diversity%20and%20Inclusion/Diversity%20wins%20How%20inclusion%20matters/Diversity-wins-How-inclusion-matters-vF.pdf [https://perma.cc/L7RA-3DT9].

  37. Deo, supra note 10, at 65 n.4 (citing and quoting Grutter, 539 U.S. at 331) (“high-ranking retired officers and civilian leaders of the United States military assert that, ‘[b]ased on [their] decades of experience,’ a ‘highly qualified, racially diverse officer corps . . . is essential to the military’s ability to fulfill its principle [sic] mission to provide national security.’”).

  38. Elizabeth Bodamer, Belonging in Law School (2021) (Ph.D. dissertation, Indiana University) (on file with author).

  39. See Meera E. Deo, Faculty Insights on Educational Diversity, 83 Fordham L. Rev. 3115, 3117 (2015); Deo, supra note 10, at 3.

  40. See, e.g., Meera E. Deo & Chad Christensen, Ind. Univ. Ctr. for Postsecondary Research, 2020 Annual Survey Results: Diversity & Exclusion 6 (2020), https://lssse.indiana.edu/wp-content/uploads/2020/09/Diversity-and-Exclusion-Final-9.29.20.pdf [https://perma.cc/3P3A-FK26].

  41. Ella Washington & Camille Patrick, 3 Requirements for a Diverse and Inclusive Culture, GALLUP (Sept. 17, 2018), https://www.gallup.com/workplace/242138/requirements-diverse-inclusive-culture.aspx [https://perma.cc/A82S-U2MV].

  42. Deo, supra note 10.

  43. Ibram X. Kendi, How to Be an Antiracist 9 (2019).

  44. Chandra L. Ford & Collins O. Airhihenbuwa, Critical Race Theory, Race Equity, and Public Health: Toward Antiracism Praxis, 100 Am. J. Pub. Health S30, S31 (2010).

  45. Kendi, supra note 42, at 23.

  46. Id. at 46–47. See also Michele Goodwin, Complicit Bias: Sexual Harassment and the Communities that Sustain It, Huffington Post (Dec. 11, 2017, 2:18AM) (using a new term “complicit bias” to describe community complicity in sustaining institutional bias and harassment in the workplace), https://www.huffpost.com/entry/complicit-bias-sexual-harassment-and-communities-that_b_5a2e238de4b0d7c3f262244f [https://perma.cc/LLB5-Q7DJ].

  47. Constance Grady, Why the Term “BIPOC” Is So Complicated, Explained by Linguists, Vox (June 30, 2020, 9:10 AM) (“In the 1960s and ’70s, . . . groups like the Black Panther Party for Self Defense and the Brown Berets came together in solidarity as people of color, which was a new instantiation of the idea of people having color.”) (internal quotations omitted), https://www.vox.com/2020/6/30/21300294/bipoc-what-does-it-mean-critical-race-linguistics-jonathan-rosa-deandra-miles-hercules.

  48. Efrén Pérez, (Mis)Calculations, Psychological Mechanisms, and the Future Politics of People of Color, 6 J. Race, Ethnicity & Pol. 33, 36–37 (2021); Efrén O. Pérez, Diversity’s Child: People of Color and the Politics of Identity (manuscript, 3-5) (forthcoming July 2021).

  49. The origin, evolution, benefits, and limitations of the terms “people of color” and “women of color” are covered in greater detail in Deo, supra note 9.

  50. Pérez, supra note 47 (manuscript at 1-4). The term “Latinx” itself has come under scrutiny in this ongoing conversation about preferred language for communities, advocates, and allies. Jonathan Rosa, Looking Like a Language, Sounding Like a Race: Raciolinguistic Ideologies and the Learning of Latinidad (2019); Luis Noe-Bustamante, Lauren Mora & Mark Hugo Lopez, About One-in-Four U.S. Hispanics Have Heard of Latinx, but Just 3% Use It, Pew Research Center (Aug. 11, 2020), https://www.pewresearch.org/hispanic/2020/08/11/about-one-in-four-u-s-hispanics-have-heard-of-latinx-but-just-3-use-it [https://perma.cc/24FX-D9LP] (explaining the origins and uses of the term “Latinx”).

  51. See Yen Le Espiritu, Asian American Panethnicity 19–20 (1992).

  52. Wing, supra note 29, at 7.

  53. See Michele Wallace, A Black Feminist’s Search for Sisterhood, in All the Women Are White, All the Black Are Men, But Some of Us Are Brave: Black Women’s Studies 7, 10 (Gloria T. Hull, Patricia Bell Scott, & Barbara Smith eds., 1982); Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581, 585 (1990); but see Catharine A. MacKinnon, From Practice to Theory, or What Is a White Woman Anyway?, 4 Yale J. L. & Feminism 13, 18 (1991).

  54. Garcia, supra note 13; The BIPOC Project, https://www.thebipocproject.org/ [https://perma.cc/GS4R-YQWY] (last visited March 19, 2021) (showing the efforts by activists to center the voices of the Black and Indigenous communities by turning to the term “BIPOC”); Grady, supra note 46.

  55. Garcia, supra note 13.

  56. Id.

  57. The BIPOC Project, supra note 53; Chevaz Clarke, BIPOC: What Does It Mean and Where Does It Come From?, CBS News (July 2, 2020, 10:04 AM), https://www.cbsnews.com/news/bipoc-meaning-where-does-it-come-from-2020-04-02 [https://perma.cc/P2NW-5ZW7].

  58. Clarke, supra note 56.

  59. See generally Anthony Christian Ocampo, The Latinos of Asia: How Filipino Americans Break the Rules of Race (2016) (exploring how Filipinos understand their racial identity).

  60. Wing, supra note 16, at 7; Harris, supra note 52, at 585.

  61. See, e.g., Victoria Sutton, Guest Post: Native American Exclusion as a Form of Paper Genocide, LSSSE (July 17, 2020), https://lssse.indiana.edu/blog/guest-post-native-american-exclusion-as-a-form-of-paper-genocide [https://perma.cc/SWH3-NUBQ].

  62. Garcia, supra note 13.

  63. The BIPOC Project, supra note 53.

  64. The nascent term is also confusing as many, even progressive voices on race/racism, do not know what it means. As a term that has been used largely by educated elites, others have been clueless about it; apparently, many thought it referenced bisexual people of color. NPR Codeswitch, Is It Time To Say R.I.P. to ‘POC’? (Sept. 30, 2020, 12:22AM), https://www.npr.org/2020/09/29/‌918418825/is-it-time-to-say-r-i-p-to-p-o-c [https://perma.cc/8XYN-K78N].

  65. See Derrick Bell, Faces at the Bottom of the Well: the Permanence of Racism 19 (1992) (arguing that symbolic progress simply provides oppressed groups with the illusion of change without ceding real power, thus further entrenching racial hierarchies).

  66. Cambridge Dictionary notes that virtue signaling “is the popular modern habit of indicating that one has virtue merely by expressing disgust or favour for certain political ideas or cultural happenings.” Cambridge English Dictionary, Virtual Signaling Definition, [https://perma.cc/F2SX-YWVX]. This definition from Urban Dictionary is even more direct: “To take a conspicuous but essentially useless action ostensibly to support a good cause but actually to show off how much more moral you are than everybody else.” Urban Dictionary, Virtual Signalling Definition, https://www.urbandictionary.com/define.php?term=Virtue%‌20Signalling [https://perma.cc/85A6-GQWT]; see also Deo, supra note 9, at 20.

  67. Sutton, supra note 60.

  68. See Garcia, supra note 13; The BIPOC Project, supra note 53; Clarke, supra note 56.

  69. Ange-Marie Hancock, Solidarity Politics for Millennials: A Guide to Ending the Oppression Olympics 4 (2011).

  70. Half a dozen clear examples of race and racism that are not centered on Black and Indigenous communities are presented infra in Part III.B.

  71. Claire Jean Kim, The Racial Triangulation of Asian Americans, 27 Politics and Society 105, 107 (1999).

  72. Id.; Hancock, supra note 68, at 4.

  73. Michael Omi & Howard Winant, Racial Formation in the United States (3rd ed. 2015).

  74. The history of legal support for white privilege is explored in greater depth in Deo, supra note 9, manuscript at 6-9 (in progress).

  75. Omi & Winant, supra note 72, at 39­–46.

  76. The contexts included in this Section are clear examples drawing from contemporary racial issues in the U.S. where the BIPOC term is not the most useful; future work should apply this thesis to more complex situations that are less clear-cut to determine whether the argument holds. See, e.g., Deo, supra note 9.

  77. Harald Schmidt, Lawrence O. Gostin & Michelle A. Williams, Is It Lawful and Ethical to Prioritize Racial Minorities for COVID-19 Vaccines?, 324 JAMA 2023, 2023 (2020) (“[T]he mortality rate relative to population size is 3.4-fold higher among Black individuals . . ., 3.3-fold higher among Indigenous and Latino communities . . ., 2.9-fold higher among Pacific Islander individuals . . ., and 1.3 higher among Asian [American] populations . . . .”); Harmeet Kaur, The Coronavirus Pandemic Is Hitting Black and Brown Americans Especially Hard on All Fronts, CNN (May 8, 2020, 8:43 PM), https://www.cnn.com/2020/05/08/us/‌coronavirus-pandemic-race-impact-trnd/index.html [https://perma.cc/ZZN4-NLVA].

  78. Schmidt, Gostin & Williams, supra note 76, at 2023 (discussing priority vaccines for communities of color because COVID-19 “has disproportionately affected racial minorities in the United States resulting in higher rates of infection, hospitalization, and death”).

  79. Lizzie Wade, COVID-19 Data on Native Americans is ‘A National Disgrace.’ This Scientist Is Fighting to Be Counted, Science (Sept. 24, 2020, 12:20PM), https://www.sciencemag.org/news/2020/09/covid-19-data-native-americans-national-disgrace-scientist-fighting-be-counted [https://perma.cc/AXL2-YVQN].

  80. Sarah Blake Morgan, Native Americans Embrace Vaccine, Virus Containment Measures, AP News (February 17, 2021), https://apnews.com/article/native-americans-coronavirus-vaccine-9b3101d306442fbc5198333017b4737d.

  81. See Nora Mabie, Tribes’ Vaccination Effort Proving To Be a Big Success by Emphasizing Elders and Community, Great Falls Tribune (March 23, 2021, 6:00AM), https://www.greatfallstribune.com/story/news/2021/03/23/montana-native-american-tribes-see-successful-covid-19-vaccine-rollout/4801837001/ [https://perma.cc/KX8E-S94U], (“The Blackfeet Nation has successfully vaccinated more than 95% of its eligible population.”); Harmeet Kaur, Tribal Health Providers Have Figured Out the Key to Covid-19 Vaccine Success. Here’s Their Secret, CNN (February 26, 2021, 8:16AM), https://www.cnn.com/‌2021/02/09/us/tribal-health-providers-covid-vaccine-trnd/index.html [https://perma.cc/JP94-KX4N].

  82. Jack Healy, Plenty of Vaccines, but Not Enough Arms: A Warning Sign in Cherokee Nation, N.Y. Times (March 16, 2021), https://www.nytimes.com/2021/03/16/us/vaccines-covid-cherokee-native-americans.html [https://perma.cc/EB2A-6F8F].

  83. Wade, supra note 78.

  84. Caroline Radnofsky, Matteo Moschella & Corky Siemaszko, Native Americans Use Culture and Community to Gain Tribes’ Trust in Covid Vaccine, NBC News (Feb. 3, 2021, 6:32PM), https://www.nbcnews.com/news/us-news/native-americans-use-culture-comm‌unity-gain-tribes-trust-covid-vaccine-n1256647 [https://perma.cc/M2TX-LQWA]; Kaur, supra note 80.

  85. National Nurses United, Sins of Omission 12 (2020), https://www.nationalnursesunited.‌org/sites/default/files/nnu/graphics/documents/0920_Covid19_SinsOfOmission_Data_Report.pdf [https://perma.cc/YZ3W-MLXV]. There is likely a raceXgender effect here too, with greater numbers of Filipinas dying of COVID-19 than even their male counterparts.

  86. Id. at 5.

  87. Id.

  88. John F. Dovidio and Samuel L. Gaertner, Aversive Racism, in Advances in Experimental Social Psychology 2 (M.P. Zanna ed., 2004); Louis A. Penner, et al., The Experience of Discrimination and Black-White Health Disparities in Medical Care, 35 J. Black Psych. 180, 181 (2009).

  89. Mary Smith, Native Americans: A Crisis in Health Equity, American Bar Association, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-state-of-healthcare-in-the-united-states/native-american-crisis-in-health-equity [https://perma.cc/UJ2S-BF23].

  90. Leila Goldstein, Latina and Black Pregnant Women Show High Rates of COVID-19 in Southwest Ohio, WOSU Public Media (Jul. 14, 2020), https://radio.wosu.org/post/latina-and-black-pregnant-women-show-high-rates-covid-19-southwest-ohio#stream/0 [https://perma.cc/D3FM-T8EU].

  91. Stop AAPI Hate released a report in August 2020 showing increases in hate crimes against Asian Americans and Pacific Islanders since March 19, 2020. Stop AAPI Hate, Stop AAPI Hate National Report 3.19.20 – 2.28.21, https://secureservercdn.net/104.238.69.231/a1w.90d. ‌myftpupload.com/wp-content/uploads/2021/03/210312-Stop-AAPI-Hate-National-Report-.pdf [https://perma.cc/W3TJ-FAAU]; Kimmy Yam, Anti-Asian Hate Crimes Increased by Nearly 150% in 2020, Mostly in N.Y. and L.A., New Report Says, NBC News (March 9, 2021, 3:37PM), https://www.nbcnews.com/news/asian-america/anti-asian-hate-crimes-increased-nearly-150-2020-mostly-n-n1260264 [https://perma.cc/738D-D9ML]; Seashia Vang, US Government Should Better Combat Anti-Asian Racism, More than 1,000 COVID-19 Related Incidents Reported, Human Rights Watch Dispatches (Apr. 17, 2020, 10:00AM), https://www.hrw.org/news/2020/04/17/us-government-should-better-combat-anti-asian-racism# [https://perma.cc/TF9C-BUDV].

  92. Stop AAPI Hate reports that 40% of survivors had Chinese ancestry, the largest ethnic group affected. As these attacks depend on external identification, the “Asian” label based on phenotype was likely used as a proxy for “Chinese” and resulted in victimization. Stop AAPI Hate, supra note 90 at 1; Vang, supra note 90.

  93. Yam, supra note 90 (revealing that “while [hate] crimes in 2020 decreased overall by 7 percent, those targeting Asian people rose by nearly 150 percent”).

  94. Vang, supra note 90; Hannah Miao, Lawmakers Call for Change in Covid Rhetoric Amid Rise in Violence Against Asian Americans, CNBC (March 18, 2021, 5:36PM), https://www.cnbc.com/2021/03/18/lawmakers-call-for-change-in-covid-rhetoric-amid-violence-against-asian-americans.html [https://perma.cc/9886-4S9S].

  95. Harmeet Kaur, Fetishized, Sexualized and Marginalized, Asian Women Are Uniquely Vulnerable to Violence, CNN (March 17, 2021, 8:22PM), https://www.cnn.com/2021/‌03/17/us/asian-women-misogyny-spa-shootings-trnd/index.html [https://perma.cc/MH2B-XMK5].

  96. Kim, supra note 70, at 107–08.

  97. In fact, hate crimes decreased for most groups in 2020. Yam, supra note 90.

  98. Angelo N. Ancheta, Race, Rights, and the Asian American Experience 16 (1998).

  99. See Bryan D. Byers & James A. Jones, The Impact of the Terrorist Attacks of 9/11 on Anti-Islamic Hate Crime, 5 J. of Ethnicity in Crim. Just. 43, 43 (2007) (“A statistically significant increase in anti-Islamic hate crime occurred after 9/11 . . . .”); Post 9-11 Backlash, SAALT, https://saalt.org/policy-change/post-9-11-backlash [https://perma.cc/L9SR-XWFB] (“Since Sep­tem­ber 11th, [2001,] South Asian, Sikh, Mus­lim, and Arab Amer­i­cans have been the tar­gets of numer­ous hate crimes, as well as employ­ment dis­crim­i­na­tion, bul­ly­ing, harass­ment, and pro­fil­ing.”).

  100. Cynthia Lee, Hate Crimes and the War on Terror (2008) (“In the days, weeks, and months immediately following the 9/11 attacks, Arab-Americans, South Asian-Americans, Muslim-Americans, and Sikh-Americans were the targets of widespread hate violence”); Elly Belle, Yes, 9/11 Did Cause an Increase in Islamophobia, Refinery 29 (Sept. 11, 2020, 2:39PM), https://www.refinery29.com/en-us/2020/09/10019797/islamophobia-after-911-september-11-hate-crimes [https://perma.cc/C8F5-DWFW] (noting hate crimes against Muslims jumped from 28 in 2000 to 481 in 2001).

  101. Jeffrey Fagan & Alexis D. Campbell, Race and Reasonableness in Police Killings, 100 Boston U. L. Rev. 951, 1007-08 (2020).

  102. Id. at 951.

  103. See Addie C. Rolnick, Recentering Tribal Criminal Jurisdiction, 63 UCLA L. Rev. 1638, 1647 n.29 (2016) (discussing various “grey areas” between criminal law and tribal jurisdiction “neither Congress nor the Supreme Court has directly addressed”); Jeffery T. Ulmer & Mindy S. Bradley, Criminal Justice in Indian Country: A Theoretical and Empirical Agenda, 2 Ann. Rev. Criminology 337, 337 (2019) (discussing “the complexities of criminal jurisdiction in Indian Country”).

  104. Brianna Scott, Author: Black Women’s Experiences with Police Brutality Must Be ‘Invisible No More’, NPR (July 16, 2020, 5:37PM), https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/07/16/892015743/author-black-womens-experiences-with-police-brutality-must-be-invisible-no-more [https://perma.cc/UN3P-5ND7]

  105. Tia Sherée Gaynor, Seong C. Kang, & Brian N. Williams, Segregated Spaces and Separated Races: The Relationship Between State-Sanctioned Violence, Place, and Black Identity, 7 The Russell Sage Found. J. of the Soc. Sci. 50 (2021).

  106. Williams, Mezey & Singh, supra note 18.

  107. See Michelle Alexander, The New Jim Crow 19 (2020).

  108. The Sentencing Project, Criminal Justice Facts (2020), https://www.sentencingproject.‌org/criminal-justice-facts [https://perma.cc/4Y2H-4VZY].

  109. Roxanne Daniel, Since You Asked: What Data Exists about Native American People in the Criminal Justice System?, Prison Policy Initiative (Apr. 22, 2020) (“While Census data reveals that Native populations are overrepresented in the criminal justice system, other information that could shed more light on the issue is sparse”), available at: https://www.prisonpolicy.org/blog/2020/04/22/native [https://perma.cc/S57V-HGUB].

  110. The Sentencing Project, supra note 107.

  111. While migration from the African continent to the U.S. has increased significantly in the past few decades, it is a comparatively small fraction of overall immigration; Black immigrants represent about 3% of the U.S. foreign-born population. See Randy Capps, Kristen McCabe & Michael Fix, Diverse Streams: African Migration to the United States, 2 Migration Policy Institute (2012), https://www.migrationpolicy.org/pubs/CBI-AfricanMigration.pdf [https://perma.cc/DRA9-FLF4].

  112. Teo Armus & Maria Sacchetti, The Parents of 545 Children Separated at the Border Still Haven’t Been Found. The Pandemic Isn’t Helping, Wash. Post (Oct. 21, 2020, 6:28PM), https://www.washingtonpost.com/nation/2020/10/21/family-separation-parents-border-covid [https://perma.cc/3NNU-AQJW].

  113. Some of these children may also have Indigenous roots, though in a very different context, history, and environment than Native Americans.

  114. BIPOC would also be misleading in the immigration context when referencing how U.S. foreign policy prevented people from many predominantly Muslim nations from lawfully entering the country between 2017 and 2021. Shoba Sivaprasad Wadhia, National Security, Immigration and the Muslim Bans, 75 Wash. & Lee L. Rev. 1475 (2018); Proclamation No. 10141, 86 Fed. Reg. 7005 (Jan 20, 2021).

  115. This Essay lays a foundation for how advocates, academics, and allies should use racial language; it does not prescribe how individuals identify themselves.

  116. Deo, supra note 10.

  117. The thesis that using the BIPOC term does not work in particular situations is applied to the more complicated context of legal education in Deo, supra note 9.

Remedying Police Brutality Through Sentencing Reduction

Police brutality is a widespread problem that causes significant physical and psychological trauma, undermines faith in the law, and disproportionately impacts communities of color. Existing remedies to police brutality—including civil suits for damages, criminal prosecution, and internal disciplinary procedures—have in many cases proven inadequate. They fail to sufficiently deter police brutality and fail to adequately compensate victims.

This Essay proposes a novel alternative: remedying police brutality by reducing the sentences of criminal defendants who have been victims of police brutality and subsequently convicted of a crime. When a victim of police brutality is convicted of a crime relating to an incident in which the police committed unnecessary violence, they would be eligible for a reduction in their resulting sentence. The magnitude of the sentence reduction would scale to the severity of the police’s actions. Such a remedy would deter police brutality and adequately compensate victims. Because the remedy would occur within the very same process that produces police brutality—the process of criminal investigation and adjudication—it would restore procedural fairness and reaffirm victims’ rights. The Essay concludes by exploring practical concerns with the remedy, particularly the relative roles of legislatures and courts in its implementation.

Introduction

Late on the night of May 24, 2020, Joseph Troiano left an overcrowded New York City homeless shelter, tired of waiting for a bed, and took his bags with him to the subway, setting the bags down in the seats around him.1.SeeRosa Goldensohn, De Blasio Renders Split Decision on Video of Cop Punching Homeless Man on Subway, The City (July 20, 2020, 9:35 PM), https://www.thecity.nyc/2020/7/20/21332157/de-blasio-subway-video-nypd-cop-punches-homeless-man [https://perma.cc/Y9EP-UV3U]; Adam Harding, Man Hit, Choked and Maced by NYPD in Violent Arrest Video Plans to File $40M Lawsuit, NBC New York (July 17, 2020 2:29 AM), https://www.nbcnewyork.com/news/local/man-hit-choked-and-maced-by-nypd-in-violent-arrest-video-plans-to-file-40m-lawsuit/2518793/ [https://perma.cc/Q6AF-ESP9].Show More The subway was nearly empty.2.Goldensohn, supra note 1.Show More Just after midnight, an officer of the New York City Police Department (NYPD) approached him and ordered him to move because he was occupying multiple seats.3.Id.Show More Troiano moved to the next train car.4.Id.Show More The officer, joined by another officer, followed and ordered Troiano to exit, telling him “step off or I got to drag you off.”5.See Harding, supra note 1.Show More

A bodycam video of the incident shows Troiano objecting to the officers’ harassment, then one of them suddenly reaching out to grab him.6.The City, NYPD Subway Arrest, YouTube (July 14, 2020), https://www.youtube.com/‌watch?v=2lgK-apbl8Y [https://perma.cc/9FZ8-CFG8].Show More Troiano swats the officer’s hand.7.Id.Show More The officer grabs Troiano and throws a few quick punches to his head.8.Id.Show More As Troiano yells, the officer pulls him off the train by the back of the neck and throws him on the platform floor.9.Id.Show More Troiano gets up and stands against the platform wall, visibly shaken.10 10.Id.Show More The officer kicks his bags off the train, scattering them on the platform.11 11.Id.Show More As Troiano yells for them to stop, his back still to the wall, the other officer sprays him with pepper spray at point-blank range.12 12.Id.Show More The officers finally bring him to the ground and handcuff him.13 13.Id.Show More

Manhattan District Attorney (D.A.) Cyrus Vance initially charged Troiano with felony assault (for allegedly kicking the officer’s hand while on the platform) and misdemeanor resisting arrest.14 14.Goldensohn, supra note 1.Show More After widespread outrage, the D.A.’s office dropped the felony charge, leaving the resisting arrest charge,15 15.Id.Show More a Class A misdemeanor that carries a maximum penalty of one year in jail and a fine of up to $1,000.16 16.N.Y. Penal Law §§ 70.15(1), 205.30 (McKinney 2019).Show More

While the most highly publicized incidents of police brutality tend to involve unjustified killing by the police, many instances of police brutality are non-lethal. It far more often occurs in incidents like the one between the NYPD and Joseph Troiano.17 17.SeeMatthew J. Hickman, Alex R. Piquero & Joel H. Garner, Toward a National Estimate of Police Use of Nonlethal Force, 7 Criminology & Pub. Pol’y 563, 577–81, 588–89 (2008) (finding that several hundred thousand arrestees in 2002 experienced nonlethal force from an officer, such as being pushed, grabbed, kicked, hit, or held at gunpoint); Police Shootings, Vice News (Dec. 10, 2017), https://news.vice.com/en_us/article/a3jjpa/nonfatal-police-shootings-data [https://perma.cc/KT6V-NH35] (providing data on police shootings from 2010 through 2016 at the fifty largest local police departments in the U.S. and finding that “[f]or every person shot and killed by cops in these departments . . . police shot at two more people who survived”). Data on police brutality is extremely limited. In the past few years there have been some efforts to begin national data collection, but the complete results have not yet been published. See, e.g., National Use-of-Force Data Collection, FBI, https://www.fbi.gov/‌services/cjis/ucr/use-of-force [https://perma.cc/5V8L-V4CF] (last visited Mar. 18, 2021) (noting that “[t]he FBI released initial data when 40% of the total law enforcement officer population was reached” in July 2020 and that “[a]dditional data will be released at 60% and 80% participation levels”).Show More In legal parlance, these more everyday instances of police brutality are often cast in other terms—“excessive use of force” or “unreasonable force”18 18.See, e.g., Griggs v. Brewer, 841 F.3d 308, 313–14 (5th Cir. 2016).Show More—but represent essentially the same problem: the police’s unjustified use of physical violence.19 19.Whether “police brutality” is coequal with those terms is subject to some disagreement. See, e.g., Susan Bandes, Patterns of Injustice: Police Brutality in the Courts, 47 Buff. L. Rev. 1275, 1276 (1999) (distinguishing “[p]olice brutality” from “police misconduct” on the basis that the former “is conduct that is not merely mistaken, but taken in bad faith with the intent to dehumanize and degrade its target”).Show More

Police brutality is a dire problem with inadequate remedies. It is an old problem, tied to the nation’s history of racism.20 20.See generally Sandra Bass, Policing Space, Policing Race: Social Control Imperatives and Police Discretionary Decisions, 28 Soc. Just. 156 (2001) (detailing the history of race and policing from slave patrols to the war on drugs).Show More In 2020, a string of police killings of Black victims—Breonna Taylor, George Floyd, and Rayshard Brooks, among others—provoked widespread protests that were themselves met by police brutality.21 21.See, e.g., Richard Fausset and Shaila Dewan, Elijah McClain Died After He Was Detained. Now He’s Being Remembered., N.Y. Times (June 30, 2020), https://www.nytimes.com/2020/06/20/us/elijah-mcclain-police-killings.html [https://perma.cc/LU93-HQ7Q]; Adam Gabbatt, Protests About Police Brutality Are Met with Wave of Police Brutality Across U.S., The Guardian (June 6, 2020), https://www.theguardian.com/us-news/2020/jun/06/police-violence-protests-us-george-floyd [https://perma.cc/GQ3J-G5Q7].Show More The effects of police brutality are immense. The most severe are, of course, suffered by victims themselves as physical and psychological trauma, but police brutality also has broader societal impacts. It undermines faith in the legal system.22 22.See Nathan James et al., Cong. Rsch. Serv., R43904, Public Trust and Law Enforcement–A Discussion for Policymakers 2–3 (2020) (tracking declines in public confidence in the police in recent years).Show More It is linked to lower academic achievement and school attendance.23 23.See Desmond Ang, The Effects of Police Violence on Inner-City Students, 136 Q.J. Econ. 115, 11718 (2021).Show More It disproportionately impacts Black and Hispanic communities.24 24.SeeRoland G. Fryer, Jr., An Empirical Analysis of Racial Differences in Police Use of Force, 127 J. Pol. Econ. 1210, 1213–14 (2019).Show More

Despite how serious of a problem police brutality is, remedies for it are entirely inadequate. A victim can sue an officer for civil damages, but the officer’s conduct might well be covered by qualified immunity.25 25.SeeRachel A. Harmon, Legal Remedies for Police Misconduct, in 2 Reforming Criminal Justice: Policing 27, 33–35 (Erik Luna ed., 2017).Show More They could sue the municipality for damages, but discovery would be difficult, the process long, and the settlement potentially inadequate.26 26.Id. at 35. See also Kimberly A. Yuracko & Ronen Avraham, Valuing Black Lives: A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages, 106 Calif. L. Rev. 325 (2018) (discussing how Black and Hispanic tort claimants’ damage awards are under-calculated as a matter of course because of courts’ reliance on race-sensitive data).Show More They could seek criminal prosecution of the officers, but political pressures might not allow prosecutors to bring an indictment.27 27.Harmon, supra note 25, at 40–43. See also John V. Jacobi, Prosecuting Police Misconduct, 2000 Wis. L. Rev. 789, 789 (2000) (discussing the “cycle of impunity[] by which the reluctance of local government to prosecute bad cops empowers future misconduct and drives communities to regard the police as adversaries”).Show More They could petition for an internal departmental review of the officer, but the process would be polluted by conflicting incentives and bureaucratic limitations.28 28.Harmon, supra note 25, at 45–46.Show More In short, existing remedies to police brutality are insufficient in both the frequency with which they are invoked and the amount they compensate the victim when they are invoked.

And, if the victim, like Joseph Troiano, has been charged with a crime , they could still end up going to prison. Existing remedies to police brutality treat the victim’s prosecution as a distinct process from the processes through which they may seek a remedy. In a case like Troiano’s where the victim of the police brutality is charged with a crime, the victim must go through their own criminal adjudication and separately seek a remedy to the brutality. But why should a remedy not be available within the very same process that produces police brutality—the criminal investigative and adjudicatory process? After all, victims of other kinds of police misconduct receive the benefit of the exclusionary rule,29 29.SeeMapp v. Ohio, 367 U.S. 643, 654–55 (1961).Show More and victims of prosecutorial misconduct can have their cases dismissed as a remedy,30 30.See, e.g., United States v. Cooper, 983 F.2d 928, 929–30 (9th Cir. 1993) (affirming the dismissal of an indictment after the government destroyed evidence in spite of defendant’s repeated requests to prosecutor to preserve the evidence); United States v. Bohl, 25 F.3d 904, 906 (10th Cir. 1994) (dismissing the case because the prosecution failed to adhere to the defendant’s request to preserve evidence); see also Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 Wash. U.L.Q. 713, 815–19 (1999) (discussing different remedies for prosecutorial misconduct, including dismissal).Show More which are both remedies internal to their criminal adjudication.

This Essay proposes a new remedy to police brutality: reducing the sentences of criminal defendants who have been the victims of police brutality. Part I details the mechanics of the proposal. Part II then describes the benefits of using remedial sentencing for police brutality. The remedy would have two particular benefits: one, it would deter police brutality, and two, it would adequately compensate victims. Finally, Part III explores how legislatures and courts could implement the remedy.

I. The Proposal

The possibility of remedying police brutality at the sentencing phase of a victim’s criminal trial has not been proposed in prior scholarship. Some scholars have, however, proposed remedial sentencing schemes in other contexts. Some, including Judge Guido Calabresi, have proposed using sentence reduction as an alternative remedy to the exclusionary rule.31 31.SeeGuido Calabresi, The Exclusionary Rule, 26 Harv. J.L. & Pub. Pol’y 111, 116 (2003); Harry M. Caldwell & Carol A. Chase, The Unruly Exclusionary Rule: Heeding Justice Blackmun’s Call to Examine the Rule in Light of Changing Judicial Understanding About Its Effects Outside the Courtroom, 78 Marq. L. Rev. 45, 73–74 (1994).Show More Other scholars have argued that sentence reduction could be used to remedy prosecutorial misconduct.32 32.Seegenerally Sonja B. Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, 97 Geo. L.J. 1509 (2009) (proposing sentence reduction as a remedy that would deter prosecutorial misconduct and have corrective and expressive value).Show More And others have argued that it could help amend historical discrimination against minority groups.33 33.SeeMakenzie Way, Remedial Sentencing Legislation as a Tool for Reducing Overrepresentation in Correctional Facilities, Penn L. News (Jan. 6., 2020), https://www.law.upenn.edu/live/news/9534-remedial-sentencing-legislation-as-a-tool-for [https://perma.cc/4AJW-88SX].Show More None, however, have proposed using sentence reduction for police brutality.

Nor has any American court employed remedial sentencing for police brutality.34 34.Although the Supreme Court of Canada has notably used a similar remedy at least once. See R. v. Nasogaluak, [2010] 1 S.C.R. 206, 208–10 (Can.).Show More But it would hardly be unprecedented. There is a long tradition of remedying police and prosecutorial misconduct within the criminal trial, of which sentencing is a part. The exclusionary rule is the most prominent; a defendant who has been the victim of police misconduct—an illegal search, or perhaps a Miranda violation—receives a remedy within the context of their trial.35 35.SeeMapp v. Ohio, 367 U.S. 643, 654–55 (1961); Miranda v. Arizona, 384 U.S. 436, 479 (1966).Show More As it goes, “[t]he criminal is to go free because the constable has blundered.”36 36.People v. Defore, 150 N.E. 585, 587 (N.Y. 1926).Show More As another example, courts, on rare occasions, bar retrial to remedy particularly egregious instances of prosecutorial misconduct that result in mistrials, again providing a remedy within the context of the defendant’s trial.37 37.See Michael D. Cicchini, Prosecutorial Misconduct at Trial: A New Perspective Rooted in Confrontation Clause Jurisprudence, 37 Seton Hall L. Rev. 335, 344–46 (2007) (discussing how double jeopardy bars retrials where a mistrial has been declared for prosecutorial conduct that was specifically “intended to provoke the defendant into moving for a mistrial” (quoting Oregon v. Kennedy, 456 U.S. 667, 679 (1982)) but not where the prosecutor’s conduct was intended to win at trial using impermissible means).Show More Remedying police brutality at the sentencing phase of the trial would be consistent with those remedies: it provides a remedy internal to the victim’s criminal adjudication.

Consider what the remedy would look like in practice. First, there would have to be an occurrence of police brutality. The remedy should at least be available for any occurrence of police brutality that violates the Constitution,38 38.Namely, the Fourth Amendment’s prohibition on unlawful seizures and the Fifth and Fourteenth Amendments’ Due Process Clauses.Show More but could also be defined by statute or within sentencing guidelines in order to broaden the scope of the conduct captured beyond a constitutional standard.

The victim would then have to be charged with an offense. The offense could be the offense that the police were investigating or executing an arrest for when the brutality occurred,39 39.As in the case of Jacob Blake, whose shooting in Kenosha, Wisconsin, has received significant media attention. See Christina Morales, What We Know About the Shooting of Jacob Blake, N.Y. Times (Jan. 5, 2021), https://www.nytimes.com/article/jacob-blake-shooting-kenosha.html [https://perma.cc/MX7Q-47QB].Show More or it could be an offense arising out of the police-victim interaction itself (resisting arrest, assault on an officer) as in Troiano’s case. When there is a charge relating to conduct that precedes the brutality, there might have to be some kind of fact-finding process to determine that the police brutality incident is sufficiently related to the charge—that it arises from the investigation of, or arrest for, that particular charge. Needless to say, the remedy is only available if the victim is actually charged with a crime. This means that many victims of police brutality, ones who are never charged with an offense, would not reap its benefits. But the remedy’s limited scope would not render it any less impactful when it does apply.

Victims could invoke the remedy at one of several stages. First, they could indirectly benefit from it during plea bargaining. If a defendant has been the victim of police brutality and might consequently receive a lower sentence if the factfinder finds them guilty, they would likely receive a more favorable plea offer. The potential sentence reduction would act as an extra bargaining chip. Considering how many criminal cases result in plea deals,40 40.See Report: Guilty Pleas on the Rise, Criminal Trials on the Decline, Innocence Project (Aug. 7, 2018), https://innocenceproject.org/guilty-pleas-on-the-rise-criminal-trials-on-the-decline/ [https://perma.cc/9ZNF-MHQA] (finding that “97 percent of [criminal] cases were resolved through plea deals”).Show More the indirect benefits at this stage would be significant. Second, the victim could invoke the right at sentencing if they go to trial and the factfinder finds them guilty. Legislatures or sentencing commissions could establish specific downward departures for victims of police brutality, or judges could take it into account under existing sentencing factors. Third, a victim could invoke the remedy on direct appeal, or, fourth, in a post-conviction proceeding.

Regardless of when the victim invokes the remedy, the magnitude of the compensation—the reduction in the victim’s sentence time—would still have to be determined. In general, more severe instances of police brutality would warrant greater sentence reductions. The compensation should be commensurate with the harm. In cases where the brutality is severe and the defendant’s offense insignificant, the sentence reduction could be complete, producing a sentence without a term of incarceration; in cases where the brutality is less severe and the defendant’s offense significant, the sentence reduction could be relatively minor. This ability to appropriately tailor the size of the compensation to the harm helps produce the deterrent and compensatory effects that make sentence reduction such a promising remedy for police brutality.

II. Benefits of the Remedy

Existing remedies to police brutality provide, at least in theory, two main benefits: deterring further police brutality and compensating victims.41 41.SeeHarmon, supranote 25, at 27–30.Show More Remedying police brutality through sentence reduction should deter further brutality, and is uniquely situated among potential remedies to police brutality to adequately compensate victims.

A. Remedial Sentencing’s Deterrent Effects

Remedying police brutality through sentence reduction should tend to deter further brutality when the costs it imposes on police officers exceed the benefits they gain by committing brutality.42 42.SeeFrank H. Easterbrook, Criminal Procedure as a Market System, 12 J. Legal Stud. 289, 292 (1983) (arguing that to satisfy the criminal law goal of deterrence, the criminal process must set “[t]he optimal price for the offense,” which is “just high enough to require offenders to pay for all of the harm their crimes inflict”).Show More Neither of those factors is precisely or easily calculable, but there is enough empirical evidence on police behavior to suggest that remedial sentencing would have a deterrent effect.

What costs does the remedy impose on officers? Empirical evidence suggests a few clear incentives that control police behavior. Most relevantly here, police have an incentive to secure convictions and sentences; they consistently act in ways that will tend to produce more convictions with longer sentences.43 43.See, e.g.,John Pfaff, The Perverse Incentives of Punishment, The Appeal (May 18, 2018), https://theappeal.org/the-perverse-incentives-of-punishment-7c1e32b18d07/[ https://perma.cc/WUF5-AZRV] (reporting an especially egregious example of this phenomenon, wherein Todd Entrekin, a sheriff in Etowah, Alabama, “pocketed at least $750,000 budgeted for feeding the people detained in his county jail,” enabling him to purchase a beach house while those incarcerated the jail ate meat “labeled ‘not fit for human consumption’”).Show More Evidence emerging out of studies of wrongful convictions indicates that officers tend to act in a way that secures convictions and long sentences even if, in doing so, they sometimes act unlawfully or in bad faith.44 44.SeeAnthony W. Batts, Maddy deLone & Darrel W. Stephens, Policing and Wrongful Convictions, Nat’l Inst. Just. 4 (2014), https://www.ojp.gov/pdffiles1/nij/246328.pdf [https://perma.cc/K5SJ-WCZK].Show More Because police have such a demonstrated interest in securing convictions and long sentences, remedial sentencing should impose costs on them: it produces shorter sentences when they act unlawfully.

An important factor in determining the exact costs that the remedy imposes on police is the likelihood that it would actually be invoked when it is available.45 45.See Easterbrook, supra note 42, at 292 (emphasizing that the price of committing an offense is a product of “[t]he penalty” imposed and “the probability that it will be imposed for a given offense”).Show More This is the failing of many existing remedies to police brutality: they might produce a deterrent effect if they were actually used, but police officers are generally immune from civil suits due to qualified immunity and immune from criminal prosecution because of political insulation.46 46.See Harmon, supranote 25, at 34–35, 43.Show More Remedial sentencing would be comparatively easy to invoke. The victim would be automatically eligible for it at sentencing, and would not have to overcome the institutional barriers involved with civil suits or prosecuting officers. In addition, there would also be no concern with providing the victim an unwarranted windfall because the size of the sentence reduction would be made commensurate with the severity of the police conduct, so judges, generally speaking, should not be reluctant to allow it. Evidence shows that judges might be reluctant to provide a windfall—as the exclusionary rule is in many cases—but they should be less reluctant to provide a remedy that is commensurate with what the defendant deserves.47 47.See Starr, supranote 32, at 1521.Show More

What benefits do the police gain from committing brutality? It is perhaps unintuitive to think of the issue in those terms, so it might be easier to consider the correlative: the costs the police incur by not committing brutality. This factor is crucial to understanding how sentence reduction could deter police brutality. To be sure, the reasons that police brutality occurs are nebulous, subject to active debate, and hardly reducible to a few easily-defined factors.48 48.The genesis of police brutality is a broad and hotly contested subject, but a few key ingredients include poor hiring and training practices, the militarization of the police, and institutionalized racism. SeeRobert E. Worden, The “Causes” of Police Brutality: Theory and Evidence on Police Use of Force, in Criminal Justice Theory: Explaining the Nature and Behavior of Criminal Justice 149–64 (Edward R. Maguire and David E. Duffee eds., 2d ed. 2015) (providing an overview of various theories and studies of police use of force); Rosa Brooks, Stop Training Police Like They’re Joining the Military, The Atlantic (June 10, 2020), https://www.theatlantic.com/ideas/archive/2020/06/police-academies-paramilitary/612859/ [https://perma.cc/MBR9-68K5] (addressing the relationship between militarizing the police and police brutality and discussing promising efforts to train police to critically engage with the history of paramilitary police forces in the United States); Wayne McElrath & Sarah Turberville, Poisoning Our Police: How the Militarization Mindset Threatens Constitutional Rights and Public Safety, Project on Gov’t Oversight, (June 9, 2020), https://www.pogo.org/analysis/2020/06/poisoning-our-police-how-the-militarization-mindset-threatens-constitutional-rights-and-public-safety/ [https://perma.cc/KF74-5CHA]. (arguing that the militarization of police forces imperils public safety and freedom, and recognizing that racism is a fundamental feature of American policing).Show More But the evidence suggests that police brutality is at least partially a product of training and budget shortfalls; police departments that have invested in force-reduction trainings have lower reported instances of excessive force.49 49.See George Wood, Tom R. Tyler & Andrew V. Papachristos, Procedural Justice Training Reduces Police Use of Force and Complaints Against Officers, 117 Proceedings of the Nat’l Academy of Sciences of the United States of America 9815, 9815 (May 5, 2020), available at https://www.pnas.org/content/117/18/9815/ [https://perma.cc/2VJL-2BFR] (finding that large-scale implementation of procedural justice training reduced complaints and use of force).Show More In order to mitigate police brutality, then, municipalities would have to invest in counter-measures, better training in particular. Those measures have costs, and the money that police departments and municipalities save by not investing in them might be considered the “benefits” they receive by committing brutality.

Because that second factor—the benefits the police receive by committing brutality—is so nebulous, it is hard to determine the extent to which remedial sentencing would deter police brutality. But the fact that the remedy would impose costs on the police is clear, and it is also clear that it would likely impose greater costs on the police than alternative remedies because it is so much more likely to be invoked. Therefore, remedial sentencing should tend to deter police brutality at least as well as alternative remedies. Regardless, because the remedy would exist alongside existing remedies to police brutality, its deterrent effects would aggregate with theirs.

B. Remedial Sentencing’s Corrective Effects

The single most important reason to adopt sentence reduction as a remedy to police misconduct is the unique compensatory benefits it offers to victims. Sentence reduction is categorically unlike other remedies to police brutality because it is the only remedy—existing or conceivable—that matches the form and scale of the harm done to the form and scale of the compensation provided.

1. Correspondence in Form

First, in remedial sentencing, there is a corrective effect in the sense that a state-imposed harm (the physical and psychological damage police brutality inflicts upon victims) is compensated by a correlative reduction in a related state-imposed harm (victims’ terms of incarceration). The form of the compensation matches the form of the harm. That correspondence is important in light of the retribution principle for criminal punishment. The idea behind the retribution principle is that, because a defendant has performed a moral wrong, they deserve punishment.50 50.See Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. Rev. 1659, 1686 (1992).Show More The punishment is its own end, one’s just deserts. The punishment scales to the severity of the crime; more serious crimes beget longer sentences because their perpetrators are thought to deserve more punishment.

The problem when it comes to victims of police brutality who have been convicted of a crime is that they have already suffered a state-imposed harm—the police brutality. Those sentenced without regard to the police brutality suffer a total amount of state-imposed harm disproportional to the severity of the crime they committed: their term of incarceration plus the injury caused by the police. The retribution principle, then, necessitates remedial sentencing. The remedy reduces the term of incarceration to the degree that the total amount of state-imposed injury is commensurate with the severity of the offense. It matches the form of the harm to the form of the compensation—a state-imposed injury and a reduction in a state-imposed injury, respectively.

In a closely related vein, there is also a procedural correspondence between the harm and compensation in remedying police brutality through sentence reduction. Police brutality typically takes place in the process of a criminal investigation or arrest.51 51.SeeHickman, Piquero & Garner, supra note 17, at 577; see also Worden, supranote 48, at 149–51 (describing brutality in investigation and arrest).Show More The investigative stops, seizures, and arrests in which brutality takes place are part of the process that ultimately leads to the victim’s criminal adjudication, which in turn results—if the victim is convicted—in sentencing. Remedying police brutality by reducing the victim’s sentence, then, provides compensation within the very same process that produces the harm. The harm takes place as police investigate or execute an arrest for a victim’s alleged crime, and the compensation frees the victim of the consequences of that investigation.

Why does matching the form of the harm to the form of the compensation matter? After all, other remedies do not match the form of the compensation to the harm; they provide monetary damages or directly punish the offending officers. The proposed remedy’s correspondence in form matters because of what it expresses about the nature of police brutality. The remedy has an expressive benefit in the sense that it sends a message about the inherent wrongfulness of the police’s actions; more so than alternative remedies, it sounds in moral terms. Reducing a defendant’s sentence because they have been a victim of police brutality signals that the legal system recognizes and takes seriously the exact nature of the harm they have suffered. As one scholar puts it, “‘expressive legal remedies’ matter because they express recognition of injury and reaffirmation of the underlying normative principles for how the relevant relationships are to be constituted.”52 52.Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503, 1529 (2000).Show More Providing a remedy in the same form as the injury affirms the nature of the injury—a state-imposed injury that occurs within the criminal process. When the police commit brutality, they produce a state-imposed harm and undermine the process of criminal investigation and adjudication. By reducing a defendant’s sentence, the remedy mitigates the particular damage that the brutality has done to both the victim and the system. It reaffirms the rights of the victim and restores procedural justice.

2. Correspondence in Scale

The second corrective benefit of remedial sentencing is its commensurability. Sentence reduction is a particularly good remedy to the harm caused by police brutality because it is so tailorable to the severity of the harm the defendant has suffered. Not all instances of police brutality are equally severe, so the compensation must be tailorable to the severity of the harm. Remedial sentencing does just that: compensates serious instances of police brutality with significant sentence reductions, and more minor instances of police brutality with relatively token ones.

The ability of remedial sentencing to provide compensation commensurate in scale with the severity of the harm matters for expressive purposes. The remedy cannot just generally affirm the rights of the victim or restore procedural justice; it must do those things in the right magnitude. Providing compensation commensurate in scale with the harm sends a signal about just how morally repugnant the officer’s conduct was, and just how much the victim’s rights have been violated. Of course, there is no easy or inherent way to convert the wrongfulness of a particular incident of police brutality to an amount of sentence time. How many months or years is a beating worth? That conversion process depends on subjective judgments about the severity of police brutality and the meanings of particular amounts of sentence time. The important thing is that there is some scaling. It would be up to legislatures, sentencing commissions, and judges to ensure its consistency.53 53.See infra Part III for discussion of the possible roles of legislatures, sentencing commissions, and courts.Show More

3. Comparison with Alternative Remedies

Some remedies for police brutality (real or proposed) match the form of the compensation to the form of the injury. Others match them in scale. But none do both, which is why sentence reduction, when it would be applicable, could be such a powerful remedy.

Consider potential remedies to police brutality that match in form but not scale. Courts might want to expand the exclusionary rule to cases of police brutality, refusing to admit evidence arising out of police-defendant interactions in which the police commit physical violence. Similarly, courts could outright dismiss cases against defendants who have suffered police brutality. These remedies would match the form of the harm to the compensation by taking place in the process of the victim’s criminal adjudication and would result in a lower state-imposed harm (because the defendant would not be sentenced at all, having not been convicted). But they would not necessarily scale the compensation to the harm. They might provide a windfall by freeing a defendant entirely from a looming sentence.54 54.They also might discourage judges from applying the remedy at all. There have been indications that judges are less likely to apply the exclusionary rule because it might overcompensate victims for the government’s violations of their rights—as Judge Calabresi has noted, judges “are not in the business of letting people out on technicalities.” Calabresi, supra note 31, at 112.Show More

Then consider potential remedies that match in scale but not form. Civil suits for damages at least theoretically scale to the severity of the injury but do not match in form. In the police brutality context, they reward physical and dignitary harms with liquid money. Likewise, prosecuting offending officers—even if warranted for other reasons—does not restore procedural fairness to the victim’s own adjudication, even if the officer’s sentence should loosely scale to the severity of their actions.

Remedial sentencing, by matching both the form and scale of the compensation to those of the harm, reaffirms the rights of the victim and restores procedural fairness. Sentence reduction has unique corrective power to remedy the particular harms done by police brutality.

III. Implementing the Remedy

There are multiple possible paths to implementing a remedial sentencing scheme for police brutality, but choosing among those paths might prove difficult. A particularly crucial choice is whether it would be primarily legislature-driven or court-driven.

If the remedy were to be primarily legislature-driven, legislatures could create statutory downward departures for defendants who have been victims of police brutality during an interaction with the police relating to their instant case. The downward departure could be either advisory or mandatory. There would be no obvious constitutional issue with imposing a mandatory downward departure because, even though the Supreme Court has held mandatory sentence enhancements unconstitutional where the factfinder has not found the elements of the enhancement beyond a reasonable doubt,55 55.SeeApprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”); United States v. Booker543 U.S. 220, 244 (2005) (“Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”).Show More there is no such issue with mandatory sentence reductions. In jurisdictions with sentencing commissions, including the federal system, the sentencing commission might have to promulgate the downward departure in its guidelines.56 56.See, e.g.,U.S. Sent’g Guidelines Manual§ 1A1.1–3 (U.S. Sent’g Comm’n 2018).Show More But establishing the remedy by either statute or guideline would provide the benefits of a fixed rule. Of course, a fixed rule would also have drawbacks, such as reduced case-by-case flexibility.

On the other hand, the major benefit of courts driving the remedy’s implementation is that it could, in some jurisdictions, happen immediately, with no new statutory authorization required. In jurisdictions with indeterminate or largely standards-driven sentencing guidelines, judges could factor a defendant having been the victim of police brutality into their sentence under existing sentencing guidelines—as, for instance, in the federal system. The factors listed in the federal sentencing statute, 18 U.S.C. § 3553, are broad enough that judges already have the discretion to consider police brutality. Under § 3553(a), judges must consider “the nature and circumstances of the offense and the history and characteristics of the defendant,” and “the need for the sentence imposed . . . to provide just punishment for the offense.”57 57.18 U.S.C. § 3553(a).Show More For the reasons discussed in Part II supra, having been a victim of police brutality is part of the “history of the defendant” that reduces the need for a long sentence to provide just punishment for the offense. The capaciousness of the sentencing factors should already permit the courts to consider police brutality in issuing sentences.

Both legislature-driven and court-driven approaches have their benefits and drawbacks. A legislative (statutory or guideline-based) remedy would be more definite, but potentially less tailorable. Establishing fixed statutory guidelines for converting the severity of particular instances of police brutality to sentence time would be difficult. If courts were to instead lead the way, the remedy would be easier to implement—perhaps requiring no specific authorization—and easier to tailor in individual cases. But if the remedy were entirely a judicial creation, it might be applied more inconsistently, and some victims might go undercompensated.

Conclusion

This Essay has made the case for remedying police brutality through remedial sentencing. It has sought to show that remedial sentencing would deter police brutality and adequately compensate victims. It has focused on a few key details about the remedy. First, that it exists within the same process of criminal investigation and adjudication that produces police brutality. Second, that it provides victims a reduction in a state-imposed punishment as compensation for a state-imposed injury—compensation in the same form as the injury. Third, that it provides compensation commensurate in magnitude with the severity of the harm. Fourth, and finally, that it could be easily implemented, whether by legislatures, courts, or both.

Remedying police brutality through sentence reduction would not be a panacea to the problem of police brutality. It would deter it, but not entirely. It would go a long way towards restoring procedural fairness and reaffirming victims’ rights, but it would not bring victims complete justice—no remedy could. And it would never be available to victims of police brutality who are not actually charged with a crime. But the stakes of police brutality are so dire, and existing remedies so inadequate, that a remedy that could deter police brutality even a little further and bring some victims a little more justice would be well worth implementing.

  1. * J.D. Candidate, 2021, University of Virginia School of Law. Special thanks to the editors of the Virginia Law Review, especially Tyler Demetriou and Hayley Hahn, for their feedback. All errors are my own.
  2. See Rosa Goldensohn, De Blasio Renders Split Decision on Video of Cop Punching Homeless Man on Subway, The City (July 20, 2020, 9:35 PM), https://www.thecity.nyc/2020/7/20/21332157/de-blasio-subway-video-nypd-cop-punches-homeless-man [https://perma.cc/Y9EP-UV3U]; Adam Harding, Man Hit, Choked and Maced by NYPD in Violent Arrest Video Plans to File $40M Lawsuit, NBC New York (July 17, 2020 2:29 AM), https://www.nbcnewyork.com/news/local/man-hit-choked-and-maced-by-nypd-in-violent-arrest-video-plans-to-file-40m-lawsuit/2518793/ [https://perma.cc/Q6AF-ESP9].
  3. Goldensohn, supra note 1.
  4. Id.
  5. Id.
  6. See Harding, supra note 1.
  7. The City, NYPD Subway Arrest, YouTube (July 14, 2020), https://www.youtube.com/‌watch?v=2lgK-apbl8Y [https://perma.cc/9FZ8-CFG8].
  8. Id.
  9. Id.
  10. Id.
  11. Id.
  12. Id.
  13. Id.
  14. Id.
  15. Goldensohn, supra note 1.
  16. Id.
  17. N.Y. Penal Law §§ 70.15(1), 205.30 (McKinney 2019).
  18. See Matthew J. Hickman, Alex R. Piquero & Joel H. Garner, Toward a National Estimate of Police Use of Nonlethal Force, 7 Criminology & Pub. Pol’y 563, 577–81, 588–89 (2008) (finding that several hundred thousand arrestees in 2002 experienced nonlethal force from an officer, such as being pushed, grabbed, kicked, hit, or held at gunpoint); Police Shootings, Vice News (Dec. 10, 2017), https://news.vice.com/en_us/article/a3jjpa/nonfatal-police-shootings-data [https://perma.cc/KT6V-NH35] (providing data on police shootings from 2010 through 2016 at the fifty largest local police departments in the U.S. and finding that “[f]or every person shot and killed by cops in these departments . . . police shot at two more people who survived”). Data on police brutality is extremely limited. In the past few years there have been some efforts to begin national data collection, but the complete results have not yet been published. See, e.g., National Use-of-Force Data Collection, FBI, https://www.fbi.gov/‌services/cjis/ucr/use-of-force [https://perma.cc/5V8L-V4CF] (last visited Mar. 18,
    2021

    ) (noting that “[t]he FBI released initial data when 40% of the total law enforcement officer population was reached” in July 2020 and that “[a]dditional data will be released at 60% and 80% participation levels”).

  19. See, e.g., Griggs v. Brewer, 841 F.3d 308, 313–14 (5th Cir. 2016).
  20. Whether “police brutality” is coequal with those terms is subject to some disagreement. See, e.g., Susan Bandes, Patterns of Injustice: Police Brutality in the Courts, 47 Buff. L. Rev. 1275, 1276 (1999) (distinguishing “[p]olice brutality” from “police misconduct” on the basis that the former “is conduct that is not merely mistaken, but taken in bad faith with the intent to dehumanize and degrade its target”).
  21. See generally Sandra Bass, Policing Space, Policing Race: Social Control Imperatives and Police Discretionary Decisions, 28 Soc. Just. 156 (2001) (detailing the history of race and policing from slave patrols to the war on drugs).
  22. See, e.g., Richard Fausset and Shaila Dewan, Elijah McClain Died After He Was Detained. Now He’s Being Remembered., N.Y. Times (June 30, 2020), https://www.nytimes.com/2020/06/20/us/elijah-mcclain-police-killings.html [https://perma.cc/LU93-HQ7Q]; Adam Gabbatt, Protests About Police Brutality Are Met with Wave of Police Brutality Across U.S., The Guardian (June 6, 2020), https://www.theguardian.com/us-news/2020/jun/06/police-violence-protests-us-george-floyd [https://perma.cc/GQ3J-G5Q7].
  23. See Nathan James et al., Cong. Rsch. Serv., R43904, Public Trust and Law Enforcement–A Discussion for Policymakers 2–
    3 (2020) (

    tracking declines in public confidence in the police in recent years

    ).

  24. See Desmond Ang, The Effects of Police Violence on Inner-City Students, 136 Q.J. Econ
    . 115, 117

    18 (2021).

  25. See Roland G. Fryer, Jr., An Empirical Analysis of Racial Differences in Police Use of Force, 127 J. Pol. Econ. 1210, 1213–14 (2019).
  26. See Rachel A. Harmon, Legal Remedies for Police Misconduct, in 2 Reforming Criminal Justice: Policing 27, 33–35 (Erik Luna ed., 2017).
  27. Id. at 35. See also Kimberly A. Yuracko & Ronen Avraham, Valuing Black Lives: A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages, 106 Calif. L. Rev. 325 (2018) (discussing how Black and Hispanic tort claimants’ damage awards are under-calculated as a matter of course because of courts’ reliance on race-sensitive data).
  28. Harmon, supra note 25, at 40–43. See also John V. Jacobi, Prosecuting Police Misconduct, 2000 Wis. L. Rev. 789, 789 (2000) (discussing the “cycle of impunity[] by which the reluctance of local government to prosecute bad cops empowers future misconduct and drives communities to regard the police as adversaries”).
  29. Harmon, supra note 25, at 45–46.
  30. See Mapp v. Ohio, 367 U.S. 643, 654–55 (1961).
  31. See, e.g., United States v. Cooper, 983 F.2d 928, 929–30 (9th Cir. 1993) (affirming the dismissal of an indictment after the government destroyed evidence in spite of defendant’s repeated requests to prosecutor to preserve the evidence); United States v. Bohl, 25 F.3d 904, 906 (10th Cir. 1994) (dismissing the case because the prosecution failed to adhere to the defendant’s request to preserve evidence); see also Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 Wash. U.L.Q. 713, 815–19 (1999) (discussing different remedies for prosecutorial misconduct, including dismissal).
  32. See Guido Calabresi, The Exclusionary Rule, 26 Harv. J.L. & Pub. Pol’y 111, 116 (2003); Harry M. Caldwell & Carol A. Chase, The Unruly Exclusionary Rule: Heeding Justice Blackmun’s Call to Examine the Rule in Light of Changing Judicial Understanding About Its Effects Outside the Courtroom, 78 Marq. L. Rev. 45, 73–74 (1994).
  33. See generally Sonja B. Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, 97 Geo. L.J. 1509 (2009) (proposing sentence reduction as a remedy that would deter prosecutorial misconduct and have corrective and expressive value).
  34. See Makenzie Way, Remedial Sentencing Legislation as a Tool for Reducing Overrepresentation in Correctional Facilities, Penn L. News (Jan. 6., 2020), https://www.law.upenn.edu/live/news/9534-remedial-sentencing-legislation-as-a-tool-for [https://perma.cc/4AJW-88SX].
  35. Although the Supreme Court of Canada has notably used a similar remedy at least once. See R. v. Nasogaluak, [2010] 1 S.C.R. 206, 208–10 (Can.).
  36. See Mapp v. Ohio, 367 U.S. 643, 654–55 (1961); Miranda v. Arizona, 384 U.S. 436, 479 (1966).
  37. People v. Defore, 150 N.E. 585, 587 (N.Y. 1926).
  38. See Michael D. Cicchini, Prosecutorial Misconduct at Trial: A New Perspective Rooted in Confrontation Clause Jurisprudence, 37 Seton Hall L. Rev. 335, 344–46 (2007) (discussing how double jeopardy bars retrials where a mistrial has been declared for prosecutorial conduct that was specifically “intended to provoke the defendant into moving for a mistrial” (quoting Oregon v. Kennedy, 456 U.S. 667, 679 (1982)) but not where the prosecutor’s conduct was intended to win at trial using impermissible means).
  39. Namely, the Fourth Amendment’s prohibition on unlawful seizures and the Fifth and Fourteenth Amendments’ Due Process Clauses.
  40. As in the case of Jacob Blake, whose shooting in Kenosha, Wisconsin, has received significant media attention. See Christina Morales, What We Know About the Shooting of Jacob Blake, N.Y. Times (Jan. 5, 2021), https://www.nytimes.com/article/jacob-blake-shooting-kenosha.html [https://perma.cc/MX7Q-47QB].
  41. See Report: Guilty Pleas on the Rise, Criminal Trials on the Decline, Innocence Project (Aug. 7, 2018), https://innocenceproject.org/guilty-pleas-on-the-rise-criminal-trials-on-the-decline/ [https://perma.cc/9ZNF-MHQA] (finding that “97 percent of [criminal] cases were resolved through plea deals”).
  42. See Harmon, supra note 25, at 27–30.
  43. See Frank H. Easterbrook, Criminal Procedure as a Market System, 12 J. Legal Stud. 289, 292 (1983) (arguing that to satisfy the criminal law goal of deterrence, the criminal process must set “[t]he optimal price for the offense,” which is “just high enough to require offenders to pay for all of the harm their crimes inflict”).
  44. See, e.g., John Pfaff, The Perverse Incentives of Punishment, The Appeal (May 18, 2018), https://theappeal.org/the-perverse-incentives-of-punishment-7c1e32b18d07/[ https://perma.cc/WUF5-AZRV] (reporting an especially egregious example of this phenomenon, wherein Todd Entrekin, a sheriff in Etowah, Alabama, “pocketed at least $750,000 budgeted for feeding the people detained in his county jail,” enabling him to purchase a beach house while those incarcerated the jail ate meat “labeled ‘not fit for human consumption’”).
  45. See Anthony W. Batts, Maddy deLone & Darrel W. Stephens, Policing and Wrongful Convictions, Nat’l Inst. Just.
    4 (2014),

    https://www.ojp.gov/pdffiles1/nij/246328.pdf [https://perma.cc/K5SJ-WCZK].

  46. See Easterbrook, supra note 42, at 292 (emphasizing that the price of committing an offense is a product of “[t]he penalty” imposed and “the probability that it will be imposed for a given offense”).
  47. See Harmon, supra note 25, at 34–35, 43.
  48. See Starr, supra note 32, at 1521.
  49. The genesis of police brutality is a broad and hotly contested subject, but a few key ingredients include poor hiring and training practices, the militarization of the police, and institutionalized racism. See Robert E. Worden, The “Causes” of Police Brutality: Theory and Evidence on Police Use of Force, in Criminal Justice Theory: Explaining the Nature and Behavior of Criminal Justice 149–64 (Edward R. Maguire and David E. Duffee eds., 2d ed. 2015) (providing an overview of various theories and studies of police use of force); Rosa Brooks, Stop Training Police Like They’re Joining the Military, The Atlantic (June 10, 2020), https://www.theatlantic.com/ideas/archive/2020/06/police-academies-paramilitary/612859/ [https://perma.cc/MBR9-68K5] (addressing the relationship between militarizing the police and police brutality and discussing promising efforts to train police to critically engage with the history of paramilitary police forces in the United States); Wayne McElrath & Sarah Turberville, Poisoning Our Police: How the Militarization Mindset Threatens Constitutional Rights and Public Safety, Project on Gov’t Oversight, (June 9, 2020), https://www.pogo.org/analysis/2020/06/poisoning-our-police-how-the-militarization-mindset-threatens-constitutional-rights-and-public-safety/ [https://perma.cc/KF74-5CHA]. (arguing that the militarization of police forces imperils public safety and freedom, and recognizing that racism is a fundamental feature of American policing).
  50. See George Wood, Tom R. Tyler & Andrew V. Papachristos, Procedural Justice Training Reduces Police Use of Force and Complaints Against Officers, 117 Proceedings of the Nat’l Academy of Sciences of the United States of America 9815, 9815 (May 5, 2020), available at https://www.pnas.org/content/117/18/9815/ [https://perma.cc/2VJL-2BFR] (finding that large-scale implementation of procedural justice training reduced complaints and use of force).
  51. See Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. Rev. 1659, 1686 (1992).
  52. See Hickman, Piquero & Garner, supra note 17, at 577; see also Worden, supra note 48, at 149–51 (describing brutality in investigation and arrest).
  53. Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503, 1529 (2000).
  54. See infra Part III for discussion of the possible roles of legislatures, sentencing commissions, and courts.
  55. They also might discourage judges from applying the remedy at all. There have been indications that judges are less likely to apply the exclusionary rule because it might overcompensate victims for the government’s violations of their rights—as Judge Calabresi has noted, judges “are not in the business of letting people out on technicalities.” Calabresi, supra note 31, at 112.
  56. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”); United States v. Booker 543 U.S. 220, 244 (2005) (“Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”).
  57. See, e.g., U.S. Sent’g Guidelines Manual § 1A1.1–3 (U.S. Sent’g Comm’n 2018).
  58. 18 U.S.C. § 3553(a).