G. Ben Cohen (University of Akron – School of Law), Justin D. Levinson (University of Hawaiʻi at Mānoa – William S. Richardson School of Law), & Koichi Hioki (Kobe University – Graduate School of Business Administration) have posted Racializing Three Strikes (67 Arizona Law Review 919) on SSRN. Here is the abstract:
“Three Strikes” laws sit at the fulcrum of racial disparities and mass incarceration. Despite clarity across decades that such laws have served to disproportionately punish Black Americans, legislatures have blessed them, courts permit them, prosecutors charge them, and juries convict based on them. Although it has long been clear that these laws have played a key role in the racialization of America’s criminal justice system, less clear are the mechanisms that drive and permit the embrace of this racialization. In this Article, we test empirically in a national study the hypothesis that Three Strikes laws exist because of race, are retained because of race, and are implemented because of race. Our national study finds, among other things, that Three Strikes laws indeed leverage automatic associations of repeat criminality with Black and Latino people, while inviting explicit biases to operate. The Article examines the racialization of Three Strikes laws, contextualizes the problem within modern implicit bias scholarship and decision theory, and measures the ways that implicit and explicit racial bias fuel the use and operation of these laws. The Article concludes by considering whether, given the study’s findings, repeat-offender laws should be retained.
Recommended.