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Michigan Law Review




McCleskey v. Kemp1 operates as a barrier to using the Equal Protection Clause to achieve racial justice in criminal administration.2 By restricting the use of statistical evidence in equal protection challenges, McCleskey stifled the power of the discriminatory intent doctrine to combat the colorblind racism emanating from facially neutral criminal law statutes and governmental actions.3 But what if McCleskey had been decided differently? Given that Washington v. Davis4 held that the challenged law or governmental action had to be “traced to a discriminatory racial purpose,”5 could McCleskey have articulated an approach to equal protection doctrine that would have been capable of addressing the sophisticated and sometimes technologically advanced methods by which racial hierarchy is reinforced and protected in criminal administration today?

It is with this question in mind that I read Professor Mario Barnes’s6 rewritten McCleskey decision, which appears as a chapter in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law, edited by Professors Bennett Capers, Devon W. Carbado, R.A. Lenhardt, and Dean Angela Onwuachi-Willig. Using critical race theory, Professor Barnes shows us a different way forward. Critical race theory is an intellectual movement that provides a lens to study the relationship between law and racism. As Professor Capers explains, its aim is to confront and “transform[] the relationship between law and white supremacy to reshape American jurisprudence in a project of racial emancipation and anti-subordination.”7 When critical race theory enters the frame, it brings with it a distinct way of knowing about race, as well as racial discrimination, its effects, and potential avenues for its amelioration.8 For this reason, Professor Barnes offers us more than just an alternative world where Warren McCleskey prevails. He puts forth a framework that would have equipped courts with a set of interdisciplinary and empirical tools to identify and abolish the power of colorblind ideology to encase racially inequitable systems.9

To highlight the importance of Professor Barnes’s contribution, this Review will apply Professor Barnes’s framework to a current racial justice challenge: the use of racially biased risk-assessment algorithms within criminal administration.10 I start by contextualizing how McCleskey foreclosed the possibility of using the discriminatory intent doctrine to address the challenge posed by these algorithms.11 I then introduce Professor Barnes’s framework and imagine how it could be deployed in a current setting. I conclude by addressing implications.

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