Discrimination

Marihuana prohibition has resulted in long-lasting racialized violence in the form of

incarceration, denial of social services and political exclusion
Duncan 9 (University of Connecticut School of Law, J.D. Candidate 2009 Cynthia S., THE NEED FOR CHANGE: AN ECONOMIC
ANALYSIS OF MARIJUANA POLICY, 41 Conn. L. Rev. 1701, LN)
The racial disparity associated with overall drug enforcement is a serious issue. n101 Blacks are arrested for drug abuse violations at a rate

Although the Supreme

Court has declared that there is [*1722] no constitutional right to be free from the disparate
impact of facially neutral policies, n103 there is widespread concern that the enforcement of
facially neutral drug laws is anything but neutral. n104 This concern is especially warranted
with the enforcement of marijuana possession laws, n105 where the figures relating to black
arrests are particularly disturbing. n106 [*1723] There are roughly six times as many whites as blacks in this country.
n107 Both races use marijuana at approximately the same rates, which means that six times as many whites as
blacks use marijuana; n108 yet blacks make up a disproportionate percentage of those arrested for
possession. n109 This fact is most worrisome given that blacks are also convicted and
sentenced at higher rates. n110 From arrest to conviction, there is little doubt that marijuana
prohibition unduly impacts minorities. Arrest and conviction for a marijuana offense are often not the worst
punishments. n111 Efforts have been made to reduce the harshness of sentences for marijuana offenses, n112but there is a wide
range of collateral sanctions that are triggered by any conviction, whether felony or misdemeanor. n113
Some collateral sanctions attach at arrest, whether or not there is a subsequent conviction.
n114 These sanctions can include: loss of professional licenses, barriers to employment opportunities,
"loss of educational aid, driver's license suspension, and bars on adoption, voting and jury
service." n115 Collateral sanctions have a greater impact on the poor and on racial minorities.
Under federal law, anyone convicted of a felony [*1724] "which has as an element the possession,
use, or distribution of a controlled substance . . . shall not be eligible" for food stamps or
"assistance under any State program funded under . . . title IV of the Social Security Act." n116 The duration of the loss
of assistance can be limited by state law, but the federal statute sets no limit, meaning the ban on assistance can be a
lifetime ban. n117 In addition, any marijuana conviction can lead to eviction from public housing.
n118 These collateral sanctions do not discriminate. Those individuals convicted of low-level possession are
subject to many of the same collateral sanctions as those convicted for dealing in large
quantities.n119 The loss of public assistance, or any sanction that interferes with the ability to work or to drive, can have a more
that is alarmingly inconsistent with the percentage of the overall population they represent. n102

burdensome impact on low-income and minority individuals. The ban on public assistance is not the only collateral sanction that may
target low-income and minority individuals more harshly. Students convicted of any offense, under either state or federal law, "involving
the possession or sale of a controlled substance" while they are receiving any federal student aid under the Higher Education Act (HEA)
lose their eligibility "to receive any grant, loan, or work assistance" for at least a year; in the case of a second conviction for selling,
eligibility for aid is lost for life. n120 This is a softening of the original provision, which was amended to include only those drug
convictions that occur "while a student is enrolled and receiving federal financial aid." n121 Prior to being amended, the loss of student aid
applied to any conviction, either before or during [*1725] college. n122 According to the Government Accountability Office (GAO),

every year an estimated 17,000 to 20,000 lose access to Pell Grants and 29,000 to 41,000
lose access to student loans. n123 This law may "primarily affect[] low-income students and
exempt[] the wealthy, who don't need aid to attend college," and target young blacks, "who
are disproportionately prosecuted for drug offenses and already less likely to complete
college."n124 This law raises the possibility that mere youthful indiscretions n125 could prevent low-income or minority individuals
from ever reaping the benefits of a college education.n126 Marijuana prohibition has proven to be too costly, both financially and
socially. Despite the fact that billions of dollars are spent every year to prevent marijuana consumption, the best available data suggests
that the expenditures are simply not buying much. It is unlikely that increased funding or stronger penalties will solve the problem. Federal
and state efforts to reduce marijuana production and use through prohibition have been ineffective, and those efforts have been far less
than equitably applied across economic and racial divisions. Those members of our society most in need are denied access to vital public
assistance programs, in many instances for an offense that in an increasing number of jurisdictions is a low level enforcement priority.

n127 Marijuana prohibition is causing too much harm- completely out of proportion to the purported harm it is [*1726] preventing. n128
Since it is unlikely that any other prohibition strategy for curtailing consumption would be more effective than the current model, there is a
strong case that the entire enterprise is futile, and a good argument for abandoning it. III. State Decriminalization in the Shadow of
Federal Prohibition Having evaluated the ineffectiveness, as well as the inequity and inefficiency, of the efforts to reduce supply and
demand that are fueled by the federal policy of marijuana prohibition, it is necessary to examine the system of decriminalization that is
evolving across the country at state and local levels. It is difficult to assess the political and administrative feasibility of decriminalization.
Politically, the system in this country is constantly changing. Every new election and legislative session brings changes to the laws
pertaining to recreational and medical marijuana use. n129 As states and municipalities adopt a more liberal attitude toward marijuana use
while the federal government maintains a policy of prohibition, n130 the system becomes increasingly difficult to administer. n131

Decriminalization of marijuana is a wholly unsatisfactory compromise between strict

prohibition and legalization. n132 Decriminalization carries with it many of the same societal
costs associated with total prohibition n133 and retains almost every negative aspect associated with
prohibition. n134 [*1727] Decriminalization as it currently exists removes the criminal sanctions for
possession of marijuana for personal use n135 without providing for a non- criminal method of
obtaining it; n136 therefore, all trafficking remains illegal.n137 The enforcement and deterrence efforts aimed at trafficking remain
the same as under strict prohibition, n138 which means that the racial and economic disparities associated
with these methods are also retained. [*1728] In addition, because decriminalization offers no new methods of deterring
underage use, there is no positive impact on the underage usage rates attributable to decriminalization. n139 Although experience with
decriminalization has shown it does not have an appreciable effect on overall usage rates, n140 any increase in demand associated with an

Removing the criminal sanctions for

personal use does not "dismantle the destructive and dangerous criminal supply networks
that have taken deep root" in our own backyard. n142 Not only does decriminalization do nothing to remove the
criminal networks, it may increase their profits. n143 "Thus, decriminalization is likely to prove to be the worst
of all possible policies when it comes to the drug-dealing aspect of the marijuana problem." n144 Thirteen states have now
easing of possession sanctions is still supplied "entirely by the black market." n141

adopted some form of decriminalization, n145 but without decriminalization of marijuana at the federal level, this simply creates a system
that puts state and local drug measures easing the restrictions on marijuana at odds with federal laws prohibiting all marijuana use. n146

Decriminalization at the federal level that mirrors decriminalization at the state level would
only eliminate the conflict currently existing between federal law and state and local
measures. n147 Federal decriminalization would produce no additional positive impact on the usage rates among
young people, would do nothing to dismantle illegal trafficking operations, and would maintain many of the racial and
economic disparities associated with prohibition. n148 For those opposed to strict prohibition, decriminalization
of personal use may be viewed as a positive step. n149 However, because in many ways decriminalization is no better
policy than prohibition, decriminalization as it currently exists, whether at the state or federal level, is unsuitable as a long-term
solution. IV. Legalization & Regulation There is certainly no consensus among American voters that recreational use of marijuana
should be legalized, n150 but given the growing reluctance to impose criminal sanctions for personal recreational use, coupled with the

Legalizing marijuana
would also
remove the direct and collateral sanctions that currently fall so harshly upon minority and
low-income marijuana users. Putting an end to government prohibition of marijuana would eliminate the need for both the
support for legalized medical marijuana, n151 marijuana legalization merits serious consideration. n152

would eliminate the "destructive and dangerous criminal supply networks" of the marijuana black market. n153 It

[*1730] billions of dollars and the countless man-hours n154 spent annually on what has proven to be a futile effort to appreciably reduce
the availability of marijuana. n155This Part considers a policy of legalization that would replace government prohibition with government
regulation and taxation. n156 Two possible means of regulation are discussed briefly, but the primary focus is on the fundamental
differences between legalization of marijuana and both prohibition and decriminalization.

The magnitude of arrests alone is huge leads to cycles of violence, unemployment,

and poverty
Levine et al 10 (Harry G. Levine, PhD, Sociology Department, Queens College, City University of New York; Jon B. Gettman, PhD,
Criminal Justice Department, Shenandoah University, Winchester, VA; Loren Siegel, JD, LS Consulting, Brooklyn, NY; "Arresting Latinos for
Marijuana in California: Possession Arrests in 33 Cities, 2006-08. Drug Policy Alliance, LA: October 2010.)
In California, most people arrested for marijuana possession have been charged with violating section 11357 of the California Health and Safety

less than an ounce of marijuana, typically much less. This is legally a crime and
produces a criminal record or "rap sheet."A Most people found by the police possessing small amounts
of marijuana were given a court summons requiring them to appear before a judge at a specified date and time. For those
Code, because they possessed

who failed to appear, the court issued an arrest warrant. When they were next stopped by the police for
any reason, including a routine traffic stop, their names were searched in the criminal databases. When
the "failure to appear" warrant showed up, they were handcuffed, arrested and jailed. When people with a
summons appeared in court at the required date and time, they went before a judge. If they plead guilty which happened in the vast
majority of cases they were ordered to pay a fine up to $100, plus court costs as high as $360 .10 People
unable to pay may have been given time to raise the money, but if they could not pay they were usually arrested,
handcuffed, and jailed. In the low-income and heavily Latino and black district of Central Los Angeles, for
example, people given a court appearance summons were ordered to appear at the Central Arraignment Court on Bauchet Street. The

defendants often did not realize that they had been charged with a crime because the summons looks
like a traffic ticket. They appeared before a judge who told them they had been charged with a misdemeanor, and that if they plead
guilty they would be fined up to $100. The judges routinely recommended defendants waive their right to a trial.
The vast majority of defendants wanted to be released and put this experience behind them. They
accepted the judges recommendation and plead guilty. Most people found the money to pay the fine
and court costs and gave it little thought until they applied for a job, apartment, student loan or school
and were turned down because a criminal background check revealed that they had been convicted of a
drug crime. Twenty years ago, misdemeanor arrest and conviction records were papers kept in court storerooms and
warehouses, often impossible to locate. Ten years ago they were computerized. Now they are instantly searchable on the
Internet for $20 to $40 through commercial criminal-record database services. Employers, landlords,
credit agencies, licensing boards for nurses and beauticians, schools, and banks now routinely search
these databases for background checks on applicants. The stigma of a criminal record has created huge
barriers to employment and education for hundreds of thousands of people in California.11 For
immigrants, even one guilty plea to a marijuana conviction can have disastrous consequences. People
who leave the country even briefly for a funeral, wedding or family event can be denied re-entry on the
basis of one guilty plea to marijuana possession. Two guilty pleas to possessing marijuana can trigger a
deportation.12 At some arraignment courts, people are played a video tape that introduces the arraignment process and says they can
have their conviction record "expunged. Those who return to court to do so learn they have to file their own expungement petition with a
$120 filing fee. Unless they speak to an attorney, most people are not told that, contrary to popular belief, an expungement does not erase a
criminal record it merely changes the finding of guilty to a dismissal. The criminal record simply states that the case was dismissed after
conviction. So, although people can legally say that they have not been convicted of a crime, they still have a rap sheet," and a simple
background check will show they were arrested and convicted. A

criminal record lasts a lifetime. The explosive growth of

criminal record databases, and the ease with which those databases can be accessed on the Internet,
creates barriers to employment, housing and education for anyone simply arrested for drug possession.
As a result, an arrest in California has serious consequences for anyone, including white, middle class, and especially young people. For
young, low-income Latinos who use marijuana less than young whites, and who already face numerous
barriers and hurdles a criminal record for the "drug crime" of marijuana possession can seriously harm
their life chances. Some officials, such as U.S. Representatives Steve Cohen and Sheila Jackson Lee, have termed the
stigmatizing effect of criminal records for marijuana possession a modern "scarlet letter." 13 These
marijuana possession arrests, which target young, low-income Californians, serve as a "head start"
program for a lifetime of unemployment and poverty.14

Marihuana arrests are arbitrarily more prominent in communities of color than whites
- its institutional racism at its finest
Karlin 13 (Mark, Editor of Buzzflash at Truthout, Packing Jails With Minorities for Marijuana Violations Is Racist, http://www.truthout.org/buzzflash/commentary/packing-jails-with-minorities-for-marijuana-violations-is-racist/18039-packing-jails-with-minorities-formarijuana-violations-is-racist-http://www.truth-out.org/buzzflash/commentary/packing-jails-with-minorities-for-marijuana-violations-isracist/18039-packing-jails-with-minorities-for-marijuana-violations-is-racist, June 19th 2013, Accessed October 23rd 2014, JKE)

Let's stop beating around the bush. The

ongoing and daily police sweeps arresting minorities for marijuana use,
sales and distribution is institutional racism, pure and simple. There are no daily suburban police massive
arrests of suburban white youth for marijuana violations, are there? BuzzFlash at Truthout hasn't read about or heard of
any. But it's more than that. As BuzzFlash posted a couple weeks back, the ACLU issued a report that found, Black people are 3.7
times more likely to be arrested for marijuana possession than white people despite comparable usage
rates, according to a report released today by the American Civil Liberties Union. The report also found that marijuana possession
arrests now make up nearly half of all drug arrests, with police making over 7 million marijuana
possession arrests between 2001 and 2010. "The War on Marijuana in Black and White: Billions of Dollars Wasted on Racially
Biased Arrests" is the first-ever report to examine nationwide state and county marijuana arrest data by race. Of this racist use of drug
arrests to incarcerate and subjugate black males in urban areas where there are few jobs beyond drugs
and where drugs are an opiate for lack of job opportunity the only benefit to society is those who profit from or are
employed by the prison-industrial complex. If you think that BuzzFlash at Truthout is "radical" for making such an assertion,
we are joined in our perspective by the New York Times (NYT). The NYT editorial board wrote on June 16: Federal data, included in a study by

racially biased arrests is far more extensive that was

previously known and is getting worse. The costly, ill-advised war on marijuana might fairly be
described as a tool of racial oppression. [Italics inserted by BuzzFlash.] The study, based on law enforcement data from 50 states
and the District of Columbia, is the most detailed of its kind so far. Marijuana arrests have risen sharply over the last two
decades and now make up about half of all drug arrests in the United States. Of the more than eight million marijuana
arrests made between 2001 and 2010, nearly 90 percent were for possession. There were nearly 900,000
marijuana arrests in 2010 300,000 more than for all violent crimes combined. Nationally, AfricanAmericans are nearly four times as likely to be arrested for marijuana possession as whites. The disparity is
the American Civil Liberties Union, now shows that the problem of

even more pronounced in some states, including Illinois, Iowa and Minnesota, where African-Americans are about eight times as likely to be
arrested. And in some counties around the country, blacks are 10, 15 or even 30 times as likely to be arrested. In a widely ignored protest on
June 17, black leaders gathered in DC to denounce the racially biased charade of the "war on drugs": A group of social justice activists, including
Rev. Jesse Jackson, rallied in Washington Monday to protest the Obama administration and its so-called "war on drugs," which they say has
unfairly targeted black communities across the country. The Institute of the Black World 21st Century's "Day of Direct Action" drew a crowd of
more than 500 grassroots leaders and community advocates on the 42nd anniversary of the war on drugs, which they say has become a

"State and local governments have aggressively enforced

marijuana laws selectively against black people and communities, needlessly ensnaring hundreds of
thousands of people in the criminal justice system at tremendous human and financial cost," said Ezekiel
Edwards, director of the Criminal Law Reform Project at the ACLU and one of the primary authors of the study, in a release. "The aggressive
"pipeline" for mass incarceration in black communities.

policing of marijuana is time-consuming, costly, racially biased, and doesn't work." A news release about the DC protest -- which targeted
President Obama in terms of his administration's continued backing of the alleged "War on Drugs" -- stated how grievous an impact it has had
on minorities: Declaring the crises in distressed Black communities a "State of Emergency," Dr. Ron Daniels, President of IBW states: "there is a
direct connection between the so called War on Drugs as a racially biased strategy and the devastation, death and destruction in America's
'dark ghettos.' The recent ALCU Study of marijuana arrests clearly confirms what we have known for some time, 'the

War on drugs is a

war on us,' a war that has severely damaged Black communities across the country. We need President Obama
to go beyond lecturing us about 'personal responsibility' and declare the State of Emergency in America's dark ghettos a moral and political
crisis which requires immediate action!" This egregious injustice has been a state of emergency for years and now is lamentably accepted as the
social status quo. How

ironic, millions of black man incarcerated for an arbitrary crackdown on "illicit drugs"
under the administration of America's first black president. There's something utterly shameful about
that.

Challenging institutional racism is an unending mission allowing it to go

unchallenged justifies violence
Memmi 2k (Albert Memmi 2k, Professor Emeritus of Sociology @ U of Paris, Naiteire, Racism, Translated by Steve Martinot, p. 163-165)

The struggle against racism will be long, difficult, without intermission, without remission, probably
never achieved. Yet, for this very reason, it is a struggle to be undertaken without surcease and without
concessions. One cannot be indulgent toward racism; one must not even let the monster in the house,
especially not in a mask. To give it merely a foothold means to augment the bestial part in us and in
other people, which is to diminish what is human. To accept the racist universe to the slightest degree is
to endorse fear, injustice, and violence. It is to accept the persistence of the dark history in which we still
largely live. it is to agree that the outsider will always be a possible victim (and which man is not
himself an outsider relative to someone else?. Racism illustrates, in sum, the inevitable negativity of the
condition of the dominated that is, it illuminates in a certain sense the entire human condition. The antiracist struggle, difficult though it is, and always in question, is nevertheless one of the prologues to the
ultimate passage from animosity to humanity. In that sense, we cannot fail to rise to the racist challenge.
However, it remains true that ones moral conduit only emerges from a choice: one has to want it. It is a
choice among other choices, and always debatable in its foundations and its consequences. Let us say,
broadly speaking, that the choice to conduct oneself morally is the condition for the establishment of a
human order, for which racism is the very negation. This is almost a redundancy. One cannot found a
moral order, let alone a legislative order, on racism, because racism signifies the exclusion of the other,
and his or her subjection to violence and domination. From an ethical point of view, if one can deploy a little religious
language, racism is the truly capital sin. It is not an accident that almost all of humanitys spiritual
traditions counsels respect for the weak, for orphans, widows, or strangers. It is not just a question of theoretical
morality and disinterested commandments. Such unanimity in the safeguarding of the other suggests the real utility of such
sentiments. All things considered, we have an interest in banishing injustice, because injustice engenders violence and death. Of
course, this is debatable. There are those who think that if one is strong enough, the assault on and
oppression of others is permissible. Bur no one is ever sure of remaining the strongest. One day, perhaps, the roles will
be reversed. All unjust society contains within itself the seeds of its own death. It is probably smarter to treat
others with respect so that they treat you with respect. Recall. says the Bible, that you were once a stranger in Egypt, which means both
that you ought to respect the stranger because you were a stranger yourself and that you risk becoming one again someday. It is an ethical and
a practical appealindeed, it is a contract, however implicit it might be. In

short, the refusal of racism is the condition for all

theoretical and practical morality because, in the end, the ethical choice commands the political choice,
a just society must be a society accepted by all. If this contractual principle is not accepted, then only
conflict, violence, and destruction will be our lot. If it is accepted, we can hope someday to live in peace.
True, it is a wager, but the stakes are irresistible.

The current Courts disparate intent standard is the key enabling factor in the
discriminatory practices found in the war on drugs writ large
Johnson 7 (Associate Dean for Academic Affairs, School of Law, University of California at Davis Kevin R., TAKING THE "GARBAGE" OUT IN
TULIA, TEXAS: THE TABOO ON BLACK-WHITE ROMANCE AND RACIAL PROFILING IN THE "WAR ON DRUGS", 2007 Wis. L. Rev. 283)

The Supreme Court has played a central role in the "war on drugs." In recent years, the Court has
consistently deferred to police practices in fighting crime and has greatly increased the discretion of police officers.
One commentator has gone so far as to contend that the Court has developed a jurisprudence of "drug
exceptionalism," under which the Bill of Rights gives way when the Court reviews the exercise of police power in the war on
drugs. n210 Justice John Paul Stevens observed that "no impartial observer could criticize [the] Court for hindering the progress of the war
on drugs. On the contrary, decisions like [California v. Acevedo] will support the conclusion that this Court has become a loyal foot soldier
in the Executive's fight against crime." n211 In 1996, the Court made it difficult to challenge racial profiling in traffic stops under the

in
Washington v. Davis, the Court held that a violation of the Equal Protection Clause required
that a facially neutral government policy be adopted or maintained with a discriminatory
Fourth Amendment by allowing traffic violations to act as pretextual justifications for race-based stops. n212 Moreover,

intent - not simply result in a discriminatory impact. n213 Because it is a formidable barrier to
equal-protection claims, n214 legal scholars have criticized the discriminatory-intent requirement. n215 Proving a
discriminatory intent is often extremely difficult n216 as facially neutral laws and practices may obscure racially
disparate impacts. n217 Not surprisingly, many lawsuits brought by plaintiffs claiming that the
police made traffic stops based on race have been unsuccessful under the Equal Protection
Clause. n218 Over a century ago, the Court held that selective enforcement of the law based on race is unconstitutional. n219 The
Court's 1996 decision in United States v. Armstrong, however, made it extremely difficult for plaintiffs to obtain the evidence to make this

The Court [*313] found that the defendants were not entitled to discovery from the
government to secure the evidence necessary to prove a selective-prosecution claim. n221 The
Court held this despite the well-documented racial bias in the enforcement of the crack-cocaine
laws n222 and the data showing that all crack-cocaine cases that the Federal Defender's office in question closed in 1991 involved
African American defendants. n223 According to the Court, the defendants had failed to make the threshold
showing that the government had not prosecuted whites similarly situated to the African American
showing. n220

defendants. n224 B. Tulia as Part and Parcel of the "War on Drugs" 1. a model for restorative justice? An analysis of the Tulia sting

Political action, combined with aggressive litigation, is one of the possibilities - it

unquestionably succeeded in the case of the Tulia defendants. This success, however, is unlikely to be repeated on a
regular basis. One commentator contended that the Supreme Court's recent criminal-procedure
decisions have made state and federal legislatures focus more on punishment and less on better
suggests several possible models for social change.

policing and criminal adjudication. n225 This militates in favor of political solutions to the racial disparities in the criminal-justice system.

The problem, however, is that people of color are a "discrete and insular minority" and are the targets of
prejudice, n226 which makes it difficult to prevail in the political process. To remedy that defect in the
political process, the Warren Court issued groundbreaking decisions in criminal procedure - decisions informed by a concern for racial
equality. n227 Political

solutions require carefully building alliances among different groups that

at times have divergent - if not mutually exclusive - interests. The common experiences of African
Americans and Latinos with the criminal-justice system create the potential for political coalitions. n228 Such coalitions, however,
are easier to discuss in theory than to form in reality. Activist groups, such as the NAACP and the Mexican
American Legal Defense and Educational Fund, tend to focus on the problems facing their particular community. Multiracial alliances,
which are often [*315] necessary to bring about deep and enduring social change, n229 are generally secondary to the primary focus of
race-specific activist groups. Resources are scarce and are often spent on the exigencies of the moment rather than on more difficult, timeconsuming efforts to build the necessary political alliances. n230

To complicate matters, tensions often arise

between groups. n231 Despite the convergence of their interests, different minority groups often do not form

coalitions. For
example, the profiling of Arabs and Muslims in the war on terror makes it easier to rationalize that of African Americans and Latinos in
the war on drugs. n232 All forms of racial profiling rely on statistical probabilities, not individualized suspicion. n233 Given this common
denominator, profiling of one group in one area of law enforcement logically supports profiling in other areas. n234 Latino and African
American advocacy groups, however, have not been at the forefront of the advocacy against antiterror profiling. In Tulia, local civil-rights
activists and national groups like the LDF formed a loose alliance, n235 but failed to form coalitions comprised of different racial groups.
Even though there was a substantial Mexican American community in town, and four Latino defendants were arrested in the sting, n236
the Latino community did not rally behind the Tulia defendants. n237 There unquestionably is more to this story, but at a minimum the
failure to build multiracial coalitions in Tulia suggests the difficulty in building such alliances. n238 [*316] Of course, the legal system, as
in the Tulia case, may be one tool in the fight for social justice. "Innocence projects," which have blossomed around the country, have
exonerated a number of wrongly convicted defendants. n239 Such projects, however, can accept only a limited number of cases. n240
Because institutional deficiencies are not easily addressed in individual cases, political solutions may be the most viable way of remedying
the institutional racism in the criminal-justice system. Political mobilization, for example, helped convince the Illinois governor to place a
moratorium on the death penalty given the serious concerns with the system. n241 Political possibilities exist for halting the disparate
impacts of the war on drugs. Efforts to remove the excesses of the criminal laws, however, have encountered resistance. n242 To offer one
example, proposals to decriminalize drugs have, to this point, fallen on deaf ears. n243 2. the problem with the tulia strategy The
aggressive defense strategy employed by the Tulia defense team was a textbook example of good lawyering. It might be called "critical
race lawyering." n244 The LDF strategy was similar in many respects to the aggressive advocacy of civil-liberties icons such as William
Kunstler n245 or Arthur Kinoy. n246 Attorneys for the underdogs have long put the entire system on trial, and strived to make the
defendants' stories public. They have also sought to publicize the more general injustices in the criminal-justice system. n247 [*317] The
defense attorneys in the Tulia case worked as activist lawyers, trying to bring the bigger picture of race and class into the courtroom and
beyond. Some might claim that they "played the race card" n248 - the proof of racial discrimination in the case ultimately held the key to
the defense's victory. Nationally, the public reacted negatively to the railroading of the African American defendants in Tulia, which itself
is a victory of sorts and reveals changing racial sensibilities in the United States. Unfortunately, when it comes to social change, the Tulia
case may be exceptional. Absent a monumental effort by a group of dedicated and skilled pro bono attorneys, the defendants would not
have been vindicated. Without a series of New York Times editorials and a 60 Minutes story, the Texas governor, in all likelihood, would
not have pardoned the Tulia defendants. The resources expended in their defense, as well as their good fortune, were considerable; these
circumstances are unlikely to be replicated in a routine drug case. Poorly paid public defenders with paltry resources handle most small-

time drug cases. n249 Although the Tulia case had a happy ending for the defendants, institutional reform is necessary to minimize the

Current Fourth
Amendment and Equal Protection law is woefully inadequate to ensure fairness and
evenhandedness for the run-of-the-mill defendant in a drug case. Absent institutional reform, cases like Tulia will no doubt
arise again. Similar abuses are likely to go undetected and uncorrected. National outrage over the Tulia
possibility of similar cases arising in the future. The Tulia case also demonstrated the need for legal change.

incident was unfortunately short-lived; the story quickly left the newspapers and the national consciousness. In the end, institutional racism
n250 has proven to be extremely difficult to remove from the criminal-justice system. n251

This standard forces groups to find proof of discriminatory intent in order to apply to
law propping up structural racism via the school to prison pipeline
Smith 9 (J.D. Candidate, 2010, Fordham University School of Law; B.A., 2006, University of California, Los Angeles) (Chauncee D.,
DECONSTRUCTING THE PIPELINE: EVALUATING SCHOOL-TO-PRISON PIPELINE EQUAL PROTECTION CASES THROUGH A STRUCTURAL RACISM
FRAMEWORK, 36 Fordham Urb. L.J. 1009)
Racism has placed people of color at the bottom of American society since its founding. While past forms of discrimination, such as slavery and
Jim Crow, subjugated minorities overtly, contemporary oppression is far more nebulous. Put plainly, "whites only" signs have come down, and
"separate but equal" is no longer the law. Yet in their place exists a structural racism of significant power. Powerful not only in harm, but also in

structural
racism exhibits itself through the school-to-prison pipeline. The pipeline is not synonymous with any
single policy or practice. Rather, the pipeline consists of numerous inter-institutional actions that
collectively undereducate and over-incarcerate students of color at disparate rates. Because
contemporary equal protection jurisprudence focuses on motive, courts have failed to meaningfully
address the pipeline's systemic invidiousness. In contrast, this Note evaluates the ways in which criminalization,
sorting, and economic policies and practices converge to deny students of color equal opportunities by
pushing them out of school and into prison. Courts should do the same because a structural racism
framework protects students of color more adequately than motive-centered equal protection analysis.
form because its ambiguity prevents courts from recognizing its existence. Within the context of education and criminal justice,

The school-to-prison pipeline is the status quos method for funneling students out of
school and into the streets or the prison system
Llorente 14 (Monica, works on local and national campaigns with youth, parents, educators, lawyers, organizers, and others to advocate
for changes in education and juvenile justice, and she teaches law to undergraduate students at Northwestern University, Help Us Dismantle
the School-to-Prison Pipeline, http://apps.americanbar.org/litigation/committees/childrights/content/articles/spring2014-0414-dismantleschool-to-prison-pipeline.html, April 10th 2014, Accessed October 24th 2014, JKE)

The School-to-Prison Pipeline: What Is It Really? For too many of our young people, particularly those
who are African American, Latino, Native American, low-income, or youth with disabilities, the
education pipeline stands broken, and the doors to meaningful education remain closed. The problem is particularly
acute with regard to students being pushed or dropping out of school, often into the juvenile or prison
systemthe so-called school-to-prison pipeline. Disproportionality, where certain racial groups are represented out of
proportion to their student numbers, remains virtually unchecked in discipline and with regard to certain special-education categorizations and

The disproportionate minority contact in juvenile-justice and delinquency matters is equally

troubling. While the availability of data on pipeline issues is increasing, the problems have been known for decades and have been resistant
placements.

to change. These issues are a civil-rights challenge for our society, and a costly one at that, as dropouts lose earning capacity and become more
dependent on welfare or join the expensive prison population. The United States spends an average of $10,995 on school placement per year
per student (Natl Ctr. for Education Statistics, The Condition of Education 2012, at 200) while states average per-inmate cost is over twice that,
$28,323 (Bureau of Justice Statistics, State Corrections Expenditures, FY 19822010, at 4 (rev. ed. Mar. 11, 2014)), and juvenile detention is
even higher, an estimated $87,981 per year (Justice Policy Inst., The Costs of Confinement: Why Good Juvenile Justice Policies Make Good Fiscal
Sense 4 (May 2009)). The town hall panelists took some time first to define and explain the school-to-prison pipeline from their perspectives

To establish a working
definition of the school-to-prison pipeline, Dr. Tyner of the Community Justice Project presented the
NAACP Legal Defense Funds description of the pipeline, which is the funneling of students out of
and based on their experiences. The panelists were direct and honest in their delivery and assessment.

school and into the streets and the juvenile correction system perpetuat*ing+ a cycle known as the School-to-PrisonPipeline, depriving children and youth of meaningful opportunities for education, future employment, and
participation in our democracy. Mariame Kaba reminded us that *i+ts almost a misnomer in some cases to talk
about a school-to-prison pipeline, and we should really be talking about a community-to-prison pipeline
or a cradle-to-prison pipeline. It starts even before young people enter the school building. Professor Heitzeg and Rev. Wilson
agreed that we are feeding bodies to the criminal system through this pipeline. Young people are
indirectly routed to forms of incarceration through suspension and expulsion policies and directly routed
to prison through the growing police presence in schools. Thus, when we talk about the school-to-prison
pipeline, as Professor Heitzeg explained, we are really talking about the rhetoric of the war on drugs, mandatory
minimum sentences, mass incarceration, zero tolerance, and no discretion translated into educational
policy through the concept of discipline. Dr. Tyner seamlessly illustrated the problem as a tangled web, because often times we
can see all the different entry points, but the difficulty is how do you exit a web? And the challenge then becomes for our children, how do they
get out of this web once theyre tangled? The School-to-Prison Pipeline: Facts and Statistics If you are reading this article, you are probably
already familiar with the facts and statistics. A

public school student is suspended every second and a half, and a recent
study found that 95 percent of out-of-school suspensions are for nonviolent, minor disruptions such as tardiness
or disrespect. Numerous other studies demonstrate that certain studentssuch as students with disabilities; students of color;
lesbian, gay, bisexual, transgender, and questioning youth; and English-language learnersare more likely
to be suspended and expelled for more minor offenses. For example, as Professor Heitzeg pointed out, black students are
suspended and expelled at three-and-a-half times the rate of white students and that rate may increase in some states up to six times the rate.

This structural violence is the largest cause of by psychologically normalizing violence

against marginalized populations
Scheper-Hughes 4 (Prof of Anthropology @ Cal-Berkely; Prof of Anthropology @ UPenn) (Nancy and Philippe Bourgeois ,
Introduction: Making Sense of Violence, in Violence in War and Peace, pg. 19-22)
This large and at first sight messy Part VII is central to this anthologys thesis. It encompasses everything from the routinized,
bureaucratized, and utterly banal violence of children dying of hunger and maternal despair in Northeast Brazil (Scheper-Hughes, Chapter
33) to elderly African Americans dying of heat stroke in Mayor Dalys version of US apartheid in Chicagos South Side (Klinenberg, Chapter
38) to the racialized class hatred expressed by British Victorians in their olfactory disgust of the smelly working classes (Orwell, Chapter
36). In these readings violence is located in the symbolic and social structures that overdetermine and allow the criminalized drug
addictions, interpersonal bloodshed, and racially patterned incarcerations that characterize the US inner city to be normalized (Bourgois,
Chapter 37 and Wacquant, Chapter 39). Violence also takes the form of class, racial, political self-hatred and adolescent self-destruction
(Quesada, Chapter 35), as well as of useless (i.e. preventable), rawly embodied physical suffering, and death (Farmer, Chapter 34).
Absolutely central to our approach is a blurring of categories and distinctions between wartime and peacetime violence. Close attention to
the little violences produced in the structures, habituses, and mentalites of everyday life shifts our attention to pathologies of class, race,
and gender inequalities. More important, it interrupts the voyeuristic tendencies of violence studies that risk publicly humiliating the
powerless who are often forced into complicity with social and individual pathologies of power because suffering is often a solvent of
human integrity and dignity. Thus, in this anthology we are positing a violence continuum comprised of a multitude of small wars and
invisible genocides (see also Scheper- Hughes 1996; 1997; 2000b) conducted in the normative social spaces of public schools, clinics,
emergency rooms, hospital wards, nursing homes, courtrooms, public registry offices, prisons, detention centers, and public morgues. The
violence continuum also refers to the ease with which humans are capable of reducing the socially vulnerable into expendable nonpersons
and assuming the license - even the duty - to kill, maim, or soul-murder. We realize that in referring to a violence and a genocide
continuum we are flying in the face of a tradition of genocide studies that argues for the absolute uniqueness of the Jewish Holocaust and
for vigilance with respect to restricted purist use of the term genocide itself (see Kuper 1985; Chaulk 1999; Fein 1990; Chorbajian 1999).
But we hold an opposing and alternative view that, to the contrary, it is absolutely necessary to make just such existential leaps in
purposefully linking violent acts in normal times to those of abnormal times. Hence the title of our volume: Violence in War and in Peace. If
(as we concede) there is a moral risk in overextending the concept of genocide into spaces and corners of everyday life where we might
not ordinarily think to find it (and there is), an even greater risk lies in failing to sensitize ourselves, in misrecognizing protogenocidal
practices and sentiments daily enacted as normative behavior by ordinary good-enough citizens. Peacetime crimes, such as prison
construction sold as economic development to impoverished communities in the mountains and deserts of California, or the evolution of
the criminal industrial complex into the latest peculiar institution for managing race relations in the United States (Waquant, Chapter 39),
constitute the small wars and invisible genocides to which we refer. This applies to African American and Latino youth mortality statistics
in Oakland, California, Baltimore, Washington DC, and New York City. These are invisible genocides not because they are secreted away

or hidden from view, but quite the opposite. As Wittgenstein observed, the things that are hardest to perceive are those which are right
before our eyes and therefore taken for granted. In this regard, Bourdieus partial and unfinished theory of violence (see Chapters 32 and
42) as well as his concept of misrecognition is crucial to our task. By including the normative everyday forms of violence hidden in the
minutiae of normal social practices - in the architecture of homes, in gender relations, in communal work, in the exchange of gifts, and so
forth - Bourdieu forces us to reconsider the broader meanings and status of violence, especially the links between the violence of everyday
life and explicit political terror and state repression, Similarly, Basaglias notion of peacetime crimes - crimini di pace - imagines a direct
relationship between wartime and peacetime violence. Peacetime crimes suggests the possibility that war crimes are merely ordinary,
everyday crimes of public consent applied systematically and dramatically in the extreme context of war. Consider the parallel uses of rape
during peacetime and wartime, or the family resemblances between the legalized violence of US immigration and naturalization border
raids on illegal aliens versus the US government- engineered genocide in 1938, known as the Cherokee Trail of Tears. Peacetime crimes
suggests that everyday forms of state violence make a certain kind of domestic peace possible. Internal stability is purchased with the
currency of peacetime crimes, many of which take the form of professionally applied strangle-holds. Everyday forms of state violence
during peacetime make a certain kind of domestic peace possible. It is an easy-to-identify peacetime crime that is usually maintained as a
public secret by the government and by a scared or apathetic populace. Most subtly, but no less politically or structurally, the phenomenal
growth in the United States of a new military, postindustrial prison industrial complex has taken place in the absence of broad-based
opposition, let alone collective acts of civil disobedience. The public consensus is based primarily on a new mobilization of an old fear of
the mob, the mugger, the rapist, the Black man, the undeserving poor. How many public executions of mentally deficient prisoners in the
United States are needed to make life feel more secure for the affluent? What can it possibly mean when incarceration becomes the
normative socializing experience for ethnic minority youth in a society, i.e., over 33 percent of young African American men (Prison
Watch 2002). In the end it is essential that we recognize the existence of a genocidal capacity among otherwise good-enough humans and
that we need to exercise a defensive hypervigilance to the less dramatic, permitted, and even rewarded everyday acts of violence that
render participation in genocidal acts and policies possible (under adverse political or economic conditions), perhaps more easily than we
would like to recognize. Under the violence continuum we include, therefore, all expressions of radical social exclusion, dehumanization,
depersonal- ization, pseudospeciation, and reification which normalize atrocious behavior and violence toward others. A constant selfmobilization for alarm, a state of constant hyperarousal is, perhaps, a reasonable response to Benjamins view of late modern history as a
chronic state of emergency (Taussig, Chapter 31). We are trying to recover here the classic anagogic thinking that enabled Erving
Goffman, Jules Henry, C. Wright Mills, and Franco Basaglia among other mid-twentieth-century radically critical thinkers, to perceive the
symbolic and structural relations, i.e., between inmates and patients, between concentration camps, prisons, mental hospitals, nursing
homes, and other total institutions. Making that decisive move to recognize the continuum of violence allows us to see the capacity and
the willingness - if not enthusiasm - of ordinary people, the practical technicians of the social consensus, to enforce genocidal-like crimes
against categories of rubbish people. There is no primary impulse out of which mass violence and genocide are born, it is ingrained in the
common sense of everyday social life. The mad, the differently abled, the mentally vulnerable have often fallen into this category of the
unworthy living, as have the very old and infirm, the sick-poor, and, of course, the despised racial, religious, sexual, and ethnic groups of
the moment. Erik Erikson referred to pseudo- speciation as the human tendency to classify some individuals or social groups as less than
fully human - a prerequisite to genocide and one that is carefully honed during the unremark- able peacetimes that precede the sudden,
seemingly unintelligible outbreaks of mass violence. Collective denial and misrecognition are prerequisites for mass violence and
genocide. But so are formal bureaucratic structures and professional roles. The practical technicians of everyday violence in the backlands
of Northeast Brazil (Scheper-Hughes, Chapter 33), for example, include the clinic doctors who prescribe powerful tranquilizers to fretful
and frightfully hungry babies, the Catholic priests who celebrate the death of angel-babies, and the municipal bureaucrats who dispense
free baby coffins but no food to hungry families. Everyday violence encompasses the implicit, legitimate, and routinized forms of violence
inherent in particular social, economic, and political formations. It is close to what Bourdieu (1977, 1996) means by symbolic violence,
the violence that is often nus-recognized for something else, usually something good. Everyday violence is similar to what Taussig (1989)
calls terror as usual. All these terms are meant to reveal a public secret - the hidden links between violence in war and violence in peace,
and between war crimes and peace-time crimes. Bourdieu (1977) finds domination and violence in the least likely places - in courtship
and marriage, in the exchange of gifts, in systems of classification, in style, art, and culinary taste- the various uses of culture. Violence,
Bourdieu insists, is everywhere in social practice. It is misrecognized because its very everydayness and its familiarity render it invisible.
Lacan identifies rneconnaissance as the prerequisite of the social. The exploitation of bachelor sons, robbing them of autonomy,
independence, and progeny, within the structures of family farming in the European countryside that Bourdieu escaped is a case in point
(Bourdieu, Chapter 42; see also Scheper-Hughes, 2000b; Favret-Saada, 1989). Following Gramsci, Foucault, Sartre, Arendt, and other
modern theorists of power-vio- lence, Bourdieu treats direct aggression and physical violence as a crude, uneconomical mode of
domination; it is less efficient and, according to Arendt (1969), it is certainly less legitimate. While power and symbolic domination are not
to be equated with violence - and Arendt argues persuasively that violence is to be understood as a failure of power - violence, as we are
presenting it here, is more than simply the expression of illegitimate physical force against a person or group of persons. Rather, we need
to understand violence as encompassing all forms of controlling processes (Nader 1997b) that assault basic human freedoms and
individual or collective survival. Our task is to recognize these gray zones of violence which are, by definition, not obvious. Once again, the
point of bringing into the discourses on genocide everyday, normative experiences of reification, depersonalization, institutional
confinement, and acceptable death is to help answer the question: What makes mass violence and genocide possible? In this volume we
are suggesting that mass violence is part of a continuum, and that it is socially incremental and often experienced by perpetrators,
collaborators, bystanders - and even by victims themselves - as expected, routine, even justified. The preparations for mass killing can be
found in social sentiments and institutions from the family, to schools, churches, hospitals, and the military. They harbor the early warning

signs (Charney 1991), the priming (as Hinton, ed., 2002 calls it), or the genocidal continuum (as we call it) that push social consensus
toward devaluing certain forms of human life and lifeways from the refusal of social support and humane care to vulnerable social
parasites (the nursing home elderly, welfare queens, undocumented immigrants, drug addicts) to the militarization of everyday life
(super-maximum-security prisons, capital punishment; the technologies of heightened personal security, including the house gun and
gated communities; and reversed feelings of victimization).

Err on the side of slow violence it tends to be underreported and exponential

Nixon 11 (Rob, Rachel Carson Professor of English, University of Wisconsin-Madison, Slow Violence and the Environmentalism of the
Poor, pgs. 2-3)
Three primary concerns animate this book, chief among them my conviction that we urgently need

to rethink-politically, imaginatively,
and theoretically-what I call "slow violence." By slow violence I mean a violence that occurs gradually and out of sight, a
violence of delayed destruction that is dispersed across time and space, an attritional violence that is typically not viewed as
violence at all. Violence is customarily conceived as an event or action that is immediate in time, explosive and
spectacular in space, and as erupting into instant sensational visibility. We need, I believe, to engage a different kind of
violence, a violence that is neither spectacular nor instantaneous, but rather incremental and accretive, its calamitous
repercussions playing out across a range of temporal scales. In so doing, we also need to engage the
representational, narrative, and strategic challenges posed by the relative invisibility of slow violence. Climate
change, the thawing cryosphere, toxic drift, biomagnification, deforestation, the radioactive aftermaths of wars,
acidifying oceans, and a host of other slowly unfolding environmental catastrophes present formidable
representational obstacles that can hinder our efforts to mobilize and act decisively. The long dyings-the
staggered and staggeringly discounted casualties, both human and ecological that result from war's toxic aftermaths or climate change-are
underrepresented in strategic planning as well as in human memory. Had Summers advocated invading Africa with
weapons of mass destruction, his proposal would have fallen under conventional definitions of violence and been perceived as a military or

Advocating invading countries with mass forms of slow-motion toxicity, however,

requires rethinking our accepted assumptions of violence to include slow violence. Such a rethinking
requires that we complicate conventional assumptions about violence as a highly visible act that is newsworthy
because it is event focused, time bound, and body bound. We need to account for how the temporal dispersion of
slow violence affects the way we perceive and respond to a variety of social afflictions-from domestic abuse to
even an imperial invasion.

posttraumatic stress and, in particular, environmental calamities. A major challenge is representational: how to devise arresting stories, images,

slow violence is often not just

attritional but also exponential, operating as a major threat multiplier; it can fuel long-term,
proliferating conflicts in situations where the conditions for sustaining life become increasingly but
gradually degraded.
and symbols adequate to the pervasive but elusive violence of delayed effects. Crucially,

Plan
Thus the plan: The United States Supreme Court should rule marihuana prohibition
constitutionally invalid

Solvency
No prior Court excludes the possibility of legalized marihuana opening up avenues for
new rulings about prohibition
Bauer 13 (Max, Independent writer at the Social Science Research Network, Marijuana Paper (No, Not that Kind of Marijuana Paper),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2252146, March 12th 2013, Accessed 10-14-2014, JKE) *we dont endorse the ableist
language/edited for ableist rhetoric
So far this paper has assumed the political process could change marijuana laws in this country. But political

and cultural shifts can

create new legal understandings which can change the constitutionality calculus. Fundamental rights are
those that Constitution protects from majoritarian rule.73 However unremunerated fundamental rights
have been defined by the Supreme Court as those deeply rooted in this Nations history and tradition, and
implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were
sacrificed.74 Therefore, somewhat paradoxically, when the Nations history and tradition with regard to
marijuana usage changes, and its notions of liberty and justice evolve, a right to marijuana could
emerge. Marijuana usage is indeed grounded in the most fundamental rights we have as Americans.75 In his majority opinion in Griswold
v. Connecticut, the first landmark case on the right of bodily liberty, Justice William O. Douglas declared these
unenumerated but fundamental rights come from specific guarantees in the Bill of Rights have
penumbras, formed by emanations from those guarantees that help give them life and substance. 76
Alternatively, these rights have been found to derive from the Ninth Amendment 77 or the Due Process Clause in the Fourteenth Amendment. 78

there is a strong case to be made for a right to use marijuana, particularly in a

medical context, where right to bodily autonomy is particularly high. 79 As one example of this liberty interest
at the state level, here is the Hawaii Supreme Court, fifteen years ago, analyzing whether there is a fundamental right to
Regardless of the constitutional theory,

smoke marijuana: We cannot say that smoking marijuana is a part of the traditions and collective conscience of our people. In Hawaii,
possession of marijuana has been illegal since 1931. In the rest of the United States, the possession and/or use of marijuana, even in small
quantities, is almost universally prohibited. Therefore, tradition appears to be in favor of the prohibition against possession and use of
marijuana. Additionally, we have no reason to believe that the collective conscience of the people supports the possession and use of
marijuana under the circumstances of this case. Furthermore, we cannot say that the principles of liberty and justice underlying our civil and
political institutions are violated by marijuana possession laws. We dare say that liberty and justice can exist in spite of the prohibition against
marijuana possession. Therefore, the purported right to possess and use marijuana is not a fundamental right and a compelling state interest is

This quotation, of course, now begs the question of what happens when a significant number of
states legalize marijuana to some degree, or when the culture and popular sentiment is altered such that it
creates a new set of traditions and collective conscious of our people. The Supreme Court has not
precluded substantive due process from protecting the freedom to smoke up, particularly when used medicinally. 81
Gonazalez v. Raich, which held the federal government could legislate with regard to personal, noncommercial marijuana usage, 82
simply determined how to apply the Commerce Clause83 to noncommercial marijuana growing. After the
Supreme Court remanded the case with its ruling on the Commerce Clause standard, the Ninth Circuit
considered a substantive due process argument.84 Though the Ninth Circuit rejected the claim before it
that there was a fundamental right to use medicinal marijuana, it left the door open for such a right to
emerge: For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain
not required.80

may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the
use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental

The major
substantive due process case in the 21st century, Lawrence v. Texas, 86 which informed the Ninth Circuits analysis,
takes the approach that laws which only serve to oppress are unconstitutional (even if only subject to rational
basis review the lowest level of scrutiny). 87 Justice Kennedys opinion concludes that a law is unconstitutional
which furthers no legitimate state interest which can justify its intrusion into the personal and private
life of the individual.88 This statement, at least in the abstract, indicates there is a general liberty-based right to
right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.85

consume marijuana.89 Under the Lawrence framework may not even be necessary to determine if the right of marijuana usage is
fundamental.90 The Due Process Clause, as articulating by Justice Kennedy, requires that even a law not implicating a
fundamental right must still be rationally related to some legitimate governmental interest.91 This
distinction is particularly important outside the realm of medicine where there is less protection of
bodily autonomy and privacy. 92 Looking at the issue from a privacy perspective, if the constitutional right
to privacy outweighs the public safety interest of the government, 93 then there is an unenumerated right
to smoke marijuana.94 If that right can be tied to the right to control ones medical decisions, it is even stronger.95

The Supreme Court has never specified the level of scrutiny marihuana; however the
racially disparate impact of prohibition and burdens on bodily autonomy require strict
scrutiny
Carcieri 12 (Martin D., Associate Professor of Political Science at San Francisco State University; Received JD at UC Hastings and PhD at
UC Santa Barbra, ON THE MEDICINALRECREATIONAL DISTINCTION IN CANNABIS LAW, Denver University Law Review, Vol. 89:4, Pg. 1013-1014,
January 27th 2012, Accessed via Google on October 16th 2014, JKE)

the Supreme Court has never specified the standard of reviewthe

level of scrutiny that laws imposing cannabis prohibition must survive upon challenge under the
Fourteenth Amendment. Lower federal and state supreme courts addressing the issue have held that
such laws are subject to mere rational basis scrutiny, which they generally survive.14 On a correct reading of the
Courts leading, relevant Fourteenth Amendment case law, however, I have argued that such laws are properly subject to strict
scrutiny.15 I have justified this partly on grounds that the racist origins and racially disparate impact of
cannabis prohibition establishes a suspect classification,16 but primarily because laws imposing cannabis
prohibition burden the fundamental right of bodily autonomy (i.e., presumptive control over the boundaries and
While it has addressed other aspects of cannabis law,13

contents of our bodies).17 Strict scrutiny, of course, is an ends-means analysis. The medicinal-recreation distinction might thus be relevant as

Yet the key point for our

purposes is that before ends and means can be assessed, the applicable level of ends-means scrutiny
must be established, and at this crucial, threshold stage of inquiry, the distinction is irrelevant. Whether cannabis is
used medicinally or recreationally, that is, cannabis prohibition burdens the fundamental right to control
the contents and boundaries of ones body, triggering strict scrutiny on that account. The United States government
government tries to show that the ends and means of cannabis prohibition are constitutionally adequate.

might be able to provide reasons for prohibition of private adult cannabis use that would survive the rigor of strict scrutiny. However, judging
from the longstanding quality of propaganda on the Drug Enforcement Administration and Office of National Drug Control Policy websites, this

it is not clear that such prohibition can even pass rational basis scrutiny. Thus, beyond
Congresss dubious commerce authority to make private adult cannabis use a federal crime, even state
cannabis prohibition, with the legitimacy flowing from the police power, is on weak ground under a
faithful reading of Fourteenth Amendment case law. My point, however, is that the medicinal-recreational use distinction is
seems doubtful. Indeed,

irrelevant to the crucial, threshold Fourteenth Amendment question of the applicable level of scrutiny.

On the grounds of strict scrutiny, marihuana prohibition would be overturned

Weber 13 J.D. Candidate 2013 Indiana University Robert H. McKinney School of Law; B.S. 200, University of Evansville (Tim, Indiana Law
Review, 2013 Vol. 46 Issue 2, Would Government Prohibition of Marijuana Pass Strict Scrutiny? Ebsco Host, JE)

In general, courts tread the boundaries of Article 3 rarely, and then only with caution and care as evidenced by the refusal
of courts to address political questions.^" This respect of separation of powers on the part of the courts is an important aspect of the United
States political system and is something that should be dealt with using the utmost gravity. That being said, courts

since Marbury v.
Madison^^^ have been the final arbiters regarding what is and is not constitutional, as well as
interpreters of what the Constitution actually says.^^' It is in this spirit that many of the civil rights we enjoy
today have been extracted out of a document that is in all actuality quite bare. Segregation could still be in place

today without the bravery and tact displayed by the Court in Brown v. Board of Education ?'^'^ Although

there is an argument to
be made that it is Congress's responsibility to withdraw the federal prohibition of marijuana rather than
the Court's duty to declare it invalid, the argument is a weak one given the Court's indispensable role in
developing, refining, and enforcing civil rights. If the Court adhered to such a strict belief, judicial review
would have no meaning, and we would have no fundamental right to privacy, travel, access to the
courts, or to vote. In short, although it is not in the Court's interest, or power, to nonchalantly gallivant into the realms properly occupied
by the legislative and executive branches, that is not the case here. Here, there exists a constitutional right more important
than any other, the interest we all have as humans in our own person, which must be accorded its
rightful status with all due haste, lest the infringements on this right grow in number and magnitude. In life, there are few
things we should take for granted, few things that cannot be taken from us. Our own body is one of these things.
The decision of what to do with our own self is solely our own, and this decision can never be fully taken away. Even a
prisoner may decide to sit or stand, pray or curse. This right we have in what happens to our body has no recognition
in our current system of ordered liberty despite a long list of Supreme Court opinions opining about its
importance.^"' In light of this, the Court should recognize, in more than dicta, a fundamental right to bodily
autonomy. Furthermore, the cannabis plant's history in the United States dates back to the early colonies, where it
was a mandatory crop for everyone to grow. In fact, marijuana use itself was illegalized for mainly
political reasons. Given this history, a fair comparison of this naturally occurring plant to tobacco and alcohol,
both legal vices in the United States, overwhelmingly suggests that marijuana should fall under a bodily autonomy
right as it is far less harmful than these legal substances. Finally, there exists no compelling govemment
interest in infringing on the bodily autonomy right by way of marijuana prohibition related to morality,
the connection between marijuana and crime, or safeguarding the public health. Even if a dark horse compelling interest were to emerge, the
fact that the current federal prohibition of marijuana also prohibits growing industrial hemp or using marijuana for its medical purposes means
said prohibition is in no way narrowly tailored. Therefore, the

Supreme Court should: (1) recognize a fundamental right

to bodily autonomy; (2) include marijuana use in this right; and (3) strike down the current federal
prohibition of marijuana for failing to meet strict scrutiny.

Marijuana legalization doesnt just benefit white snowboarders in Colorado, it is a

critical reform that cuts off the initial access point where millions of young people are
first introduced to the criminal justice system.
Jarecki 14 [08/02/14, Eugene Jarecki is a New York-based writer and film-maker. His Grierson, Emmy and Sundance-winning works
include Why We Fight, The Trials of Henry Kissinger and The House I Live In, As the marijuana economy takes off, let's not forget the casualties
of the US war on drugs, http://www.theguardian.com/commentisfree/2014/aug/03/marijuana-economy-casualties-us-war-on-drugs-eugenejarecki]
Throughout America's history, official

and unofficial systems of racial oppression have arisen, been challenged,

and then gone underground, shape-shifting themselves to return another day. In the modern era, as lawyer
Michelle Alexander has argued in her book The New Jim Crow, the drug war stepped in to become the latest system. In
1971, as the gains of the civil rights movement for black Americans and other minorities might have
seemed to usher America into a post-racial age, the drug war renewed the nation's commitment, however
subtly, to the obstruction of black progress. Today as the marijuana economies in Colorado and Washington
begin to take flight, Alexander noted the inescapable undertow of race that continues to haunt this
moment of apparent progress at play: "Forty years of impoverished black kids getting prison time for selling weed, and
their families and futures destroyed Now, white men are planning to get rich doing precisely the same thing." Over
those four decades, the war on drugs has failed abjectly in its stated mission addressing a legitimate concern about rates of US addiction but
succeeded overwhelmingly in what would appear its de facto goals making drug crime the primary preoccupation of law enforcement,
flooding the courts with drug cases and overcrowding prisons with the world's largest population of inmates, more than 50% on drug-related
charges. Taken together, these accomplishments have produced a system of mass incarceration that costs taxpayers an estimated $51bn a

year, becoming one of the nation's leading employers. Within its walls, black

Americans represent more than 50% of those

sentenced for drug crimes, despite the fact that black people represent only 13% of the population and
do not use drugs more or less than white people. A decade ago, when I began investigating the drug war in what would
become my documentary The House I Live In, acquaintances were intrigued. They knew I was neither a drug user nor a dealer. They also knew
that I was a comfortable white American, and thus highly unlikely to have been affected by the drug war personally. Inevitably, the

question would arise about whether I was an advocate of marijuana legalisation, which had then
become a primary focus for most reformers. I responded always with indignation, saying that I did not
support legalising marijuana if that meant simply giving dreadlocked white snowboarders easier access
to weed. Rather, I was concerned with the drug war's implications for poor and minority Americans, whose
communities had been ravaged by the war's destructive machinery. I also saw a philosophic error in
separating marijuana from other drugs. Part of what is assumed by advocates of the drug war is that the government has a
legitimate role determining what substance an adult can choose to put in his or her body in the exercise of the right to life, liberty and the
pursuit of happiness. Arguing

that one drug should be legalised while others not seems to elide this question
of public policy. And this elision is dangerous, first because it enables the country to avoid a deeper
dialogue about the illegality of drugs per se and, second, because I feared it could let steam out of the
debate about the drug war more broadly, reducing public pressure for its overhaul. Worse, I even feared
that by going easy on weed we would tighten the screws on the rest, keeping the system and its
predations intact. I've since changed my mind on the importance of marijuana as a target for
reformers, owing to what I've learned about the role it plays in driving the cycle of personal, family and
community destruction on which the war thrives. "Gateway drug" has been the term often used by drug warriors to
suggest that, with one puff of a joint, a young person may find himself hurtling down a road to hard drugs. Despite this notion's popularity, it

has little or no basis in science. Yet marijuana is a gateway drug for countless young Americans into a
lifetime of involvement with the criminal justice system. For many, an arrest for possession at a young age
can start a chain reaction that leads first to drastically reduced employability and then to a higher
likelihood of becoming engaged in the underground economy of drug distribution, often the only job
available. Once this happens, it becomes almost a fait accompli that that person will spend a serious portion
of his life rotating in and out of the system. The numbers speak volumes. Of the 2.2 million prisoners
serving in the US, nearly 25% were convicted of marijuana possession. Legalisation, were it retroactive,
would dramatically reduce prisoner numbers while profoundly stemming the tide.

The disparate intent standard enshrines white supremacy in American jurisprudence

the plans ruling spurs lasting change that is reverses the faade of neutrality
Spann 10 (Girardeau A. - Professor of Law, Georgetown University Law Center, Disparate Impact, Georgetown Public Law and Legal
Theory Research Paper No. 12-179) *we dont endorse the ableist language/edited for ableist rhetoric
The Title VII disparate impact provision embodies a textbook example of a legislative policy judgmenta judgment made by a politically
accountable Congress, whom the doctrine of separation of powers charges with the task of balancing competing constituent interests.
Nevertheless, the Supreme Court chose to upset the legislative balance that Congress struck in Title VII. The Ricci Court undermined the
effectiveness of statutory disparate impact claims, and it suggested that the recognition of such claims might even be unconstitutional.
Moreover, it did this despite the fact that Congress, in the Civil Rights Act of 1991, was seeking to overturn precisely the sorts of
restrictive Title VII decisions that the Supreme Court had issued in the pastand that it has now issued again in Ricci.86 In its effort to
eviscerate Title VII disparate impact claims, therefore, the Roberts Supreme Court has exceeded the legitimate scope of its judicial power.
It has usurped legislative policymaking power by overriding majoritarian political remedies directed at entrenched modes of racial
discrimination. That usurpation is particularly unfortunate because

the disparate impact remedies that the Court

has chosen to neutralize offer the most realistic hope of ever achieving a meaningful level of
racial equality in the United States.87 III. PRECOMMITMENT Post-racial claims notwithstanding, it should now
be apparent that racial discrimination is a persistent feature of United States culture. The fact
that racial minorities remain underrepresented in the allocation of societal benefits and
overrepresented in the allocation of societal burdens illustrates that the inclination to favor

the interests of whites over the interests of racial minorities is so deeply embedded in the
culture that it cannot be eradicated through mere voluntary efforts to avoid discrimination.
Even a sincere commitment to the principle of racial equality will be insufficient to end those forms of subtle and unconscious societal
discrimination that have become a constitutive feature of the culture.88 Accordingly, the most realistic hope that United States culture has

that will force its behavior

to approximate the behavior of a culture that has somehow managed to transcend its
discriminatory racial attitudes. Precommitment strategies are commonly used to increase ones fidelity to a desired course
for ever achieving genuine racial equality lies in its willingness to adopt a precommitment strategy

of action by eliminating options that are inconsistent with that course of action. Burning your bridges behind you before going into battle is
a classic precommitment strategy that is designed to preclude the option of retreat. Similarly, adopting a constitution that supersedes
ordinary law is a classic precommitment strategy that is designed to preclude the option of unprincipled political actions that might seem

Recognition of disparate impact as a cognizable form of racial

discrimination also constitutes a sensible precommitment strategy. Although our racial biases and
predispositions may not permit us to allocate societal resources in a racially nondiscriminatory manner, we can nevertheless force
ourselves to approximate the resource allocations that would exist in a culture that was
capable of authentic racial equality. But such a precommitment to racial equality is precisely what the Supreme Court
compelling in the heat of the moment.89

now seems intent on preventing. A. EMBEDDED INEQUALITY Speaking of United States dependence on foreign energy sources in his
2006 State of the Union address, former President George W. Bush stated that America is addicted to oil.90 Even though we know that
our voracious appetite for energy leaves us vulnerable to harms ranging from economic hardship, to domestic environmental threats, to
foreign political instability, we still seem unable to curb our oil consumption in any meaningful way. Even though we know better, we

the United States is addicted to

racial discrimination. Even though we know that treating racial minorities as inferior to
whites is inconsistent with the moral, ethical, and legal theories of equality to which we have long
subscribed, the benefits to the white majority of continued discrimination against racial
minorities are apparently too compelling for the culture to resist. From the seizure of Indian lands, to
cannot seem to control our behavior. That is what it means to be addicted. Likewise,

slavery, to official segregation, to wartime hysteria, to de facto segregation, to the invalidation of affirmative action,91 and most recently

white majoritarian United States culture has been committed to

the subordination of racial minority interests in pervasive and persistent ways. That is a form
of white supremacy. And our addiction to it is an addiction from which we appear no more able to wean ourselves than we have
to the resegregation of public schools,92

been able to wean ourselves from our addiction to foreign oil. The belief that white interests are more important than racial minority
interests is simply a constitutive element of United States culture. One of the things that it means to be an American is to have internalized,
at some very fundamental level, the realization that it is permissible to sacrifice minority interests for the benefit of whites. And that
realization is often both deep and unconscious in nature.93 That is why we tolerate the dramatic discrepancies in the allocation of societal

conscious and
unconscious biases have caused large racial disparities to continue to exist in
unemployment, poverty, access to health care, and access to education.94 Moreover, minorities
resources that continue to exist between whites and racial minorities. Justice Ginsburg has emphasized that

continue to suffer discrimination in employment, real estate markets, and consumer transactions.95 Minorities are also statistically
discriminated against in matters as diverse as retail car negotiations, kidney transplants, and bail setting.96 Recent social cognition
research using the Implicit Association Test to measure unconscious racial prejudice has demonstrated that most of us remain influenced
by vast amounts of unconscious prejudice.97 And other recent research has indicated that our culture transmits subtle racial stratification
messages so successfully that even young children quickly learn to internalize the cultures commitment to minority inferiority, despite the
efforts of their parents to instill in them values of colorblind race neutrality.98 Subtle forms of voting discrimination against racial
minorities remain serious enough that Congress recently, and overwhelmingly, reauthorized the Voting Rights Act of 1965even though
the Roberts Court has now threatened to hold the Act unconstitutional.99 And, of course, residential housing segregation continues to exist
in the United States at such an alarming rate that it has been referred to as American Apartheid.100 The advantages and sense of natural
entitlement entailed in being white in the United States remain so strong that Cheryl Harris has characterized whiteness as a property
right.101 Commentators have even suggested that the surprising vitriol that has accompanied conservative assaults on President Obamas
undeniably moderate health care and other economic programsas well as the personal attacks on President Obama himselfare
motivated at least in part by lingering racial animosity emanating from the intolerable idea of having a black person serve as President of
the United States.102 Even racial minorities themselves have at times kept a low profile in the health care debate for fear that popular
recognition of the degree to which health care reform would benefit minorities might increase the chance that reform proposals would be
defeated.103 If you are white, and you have any lingering doubts about the existence of embedded racial inequalities in the culture, simply
ask yourself whether you would mind waking up tomorrow morning as a member of a racial minority group. If the culture has truly freed
itself from the influence of embedded racial inequalities, you should be largely indifferent about the race that you will become overnight.
But I suspect that most whites are not indifferent. Indeed, one informal survey showed that white college students thought that they would
be entitled to $1 million in damages per year if they were suddenly transformed from white into black.104 The Supreme Court has
recognized the existence of the subtle and often unconscious forms of pervasive racial discrimination that continue to exist in the culture,
referring to them as societal discrimination.105 But rather than make any effort to remedy those pervasive forms of discrimination, the
affirmative action decisions handed down by the Courts conservative bloc have instead held that such societal discrimination is simply
beyond the reach of permissible race-conscious remedies.106 Moreover, the Court has held that voluntary efforts by the white majority to

eliminate societal discrimination through the use of such remedies are themselves unconstitutional denials of the equal protection rights of
whites.107 This is significant because race-conscious

remedies often provide the only realistic method of

neutralizing the effects of entrenched past discrimination.108 Nevertheless, the Court has limited the use of
race-conscious remedies to identifiable acts of past discrimination for which the defendant, rather than some societal norm, is
responsible.109 As a corollary, it has also prohibited the use of quotas or numerical guidelines to promote racial balance.110 Stated
differently,

the Court has permitted remedies for the identifiable acts of discrimination that now
cause marginal problems, but it has prohibited remedies for the embedded inequalities that
cause the major problem of keeping racial minorities in a subordinate position through the
modern version of white supremacy. Stated even more starkly, the Supreme Court has read the
Constitution to protect, rather than prohibit, subtle and pervasive forms of societal
discrimination. The power of embedded societal discriminationand the Supreme Courts own implication in the perpetuation of
that discriminationis illustrated by the Ricci case itself. The Ricci Court required New Haven to utilize the racially disparate results of a
standardized firefighter promotion exam that had never been validated to establish the exams job-related business necessity.111
Moreover, it did so even though alternatives existed that were more job related, and had less disparate impact, than the standardized
test.112 The Court knew only two things about the firefighter promotion exam that it required the city to use. It knew that the validity of
the exam had been vigorously contested in the record, and it knew that whites typically outperformed racial minorities on such
standardized tests.113 Nevertheless, the Court still chose to adopt performance on the exam as a baseline for promotion, any deviation
from which would be viewed as racial discrimination against whites.114 The Court never explained why it chose to accord such
dispositive deference to an exam whose validity was disputed, if not thoroughly discredited. But I have my suspicions. The reason that the
Ricci Court displayed such unquestioning deference to the standardized promotion exam is precisely because whites outperform minorities
on standardized tests. I am not suggesting that the Court conspiratorially chose to utilize an invalid selection criterion in order to favor
white firefighters over minority firefighters. I am suggesting something much more troubling. I am suggesting thatdespite a mass of
contrary evidencethe Court actually believed the standardized test to be valid because the results of that test corresponded to the raciallycorrelated expectations that the culture had taught the Justices equate with merit. Because whites outperformed minorities on the exam, the
exam must have been measuring qualities that were relevant to merit-based promotions. Therefore, any decision not to certify the results of
that exam must have been rooted in a desire to abandon merit in favor of unwarranted racial affirmative action. As a structural matter, the
belief that whites are better than racial minorities is so deeply embedded in our unstated cultural expectations that the belief can exert
influence in ways that do not even rise to the level of conscious awareness. This insight constitutes one of the core tenets of Critical Race
Theory.115 If racial minorities who were not themselves the products of white acculturation had written the New Haven firefighters exam,
I suspect that racial minorities would have outperformed whites. Minority firefighters would have found it easier than white firefighters to
understand and relate to the subtle linguistic cues and cultural values that necessarily would have been reflected in the exam. However,
similar cultural biases undoubtedly made it easier for white firefighters than minority firefighters to understand and relate to the subtle
linguistic cues and cultural values that were necessarily reflected in the firefighters exam that New Haven actually administered. One
might be tempted to argue that there is no reason to believe that an exam written by racial minorities, on which racial minorities
outperformed whites, should be viewed as a valid test of job-related skillslet alone a test that should be dispositive in making firefighter
promotions. But that is the point. There is also no reason to believe that an exam written by whites, on which whites outperformed racial
minorities, should be viewed as a valid test of job-related skillslet alone a test that should be dispositive in making firefighter
promotions. The only reason that the Ricci Court was willing to disregard conflicting evidence, and view the non-validated New Haven
exam as establishing the appropriate baseline for firefighter promotions, is that whites performed in the way that the Court expected. If
racial minorities had outperformed whites in the face of conflicting evidence concerning the exams validity, the Court would almost
certainly have viewed the exam results as suspect. Racial expectations are so firmly embedded in United States culture that reversing the

white privilege is so firmly embedded that ignoring a resource

allocation scheme that has historically favored whites now constitutes an act of racial
discrimination against whites. Ricci is instructive for one additional reason. Even when the political branches of
races would have been dispositive. And

government achieve some success in resisting the constitutive influence of race in contemporary cultureas Congress arguably did when
it adopted the disparate impact provision of Title VIIthe interests of racial minorities may still end up being overridden by the interests

the Supreme Court retains the last clear chance to ensure that white
interests can ultimately prevaila function that the Court has historically been very adept at
performing.116 The Court can always invalidate representative branch actions on constitutional grounds, as it often does in racial
of whites. That is because

affirmative action cases.117 Or it can threaten invalidation in the process of imposing a narrow construction on representative branch
actions, as it did in Ricci.118 Indeed, one of the interesting features of separation of powers doctrine is that there always seems to be at

Accordingly,
some sort of precommitment strategy would seem to offer the most realistic hope of ever
escaping our cultural inclination to engage in societal discrimination. And the recognition of
disparate impact claims may offer one of the most promising precommitment strategies that
are available. B. APPROXIMATE EQUALITY The goal of race neutrality is realistically unattainable
in a culture where race is as salient as it has always been in the United States. Race is too deeply
embedded in our unconscious motivations simply to be rendered irrelevant by conscious
efforts to adhere to a race-neutral intent in the way that we allocate resources. Instead, what passes for
least one branch of government that can ensure the protection of white majority interests when the need arises.

race neutrality is typically just a camouflaged effort to prolong the racial status quo,
under which benefits are disproportionately allocated to whites and burdens are
disproportionately allocated to racial minorities. Regardless of the degree of sincerity that we bring to the mission,
historyand our current maldistribution of resourcesindicate that we will never be able to achieve meaningful
racial equality simply through an act of will. We do, however, have it within our power to precommit ourselves to
colorblind

constraints on our collective behavior that will enable us to approximate the equality in resource allocation that our embedded racial
attitudes apparently preclude us from achieving through mere conscious efforts to suppress our discriminatory impulses. In fact,

cognitive dissonance theory predicts that by forcing our behavior to correspond to our
aspirational equality values, our embedded racial attitudes may ultimately evolve to conform
to our behavior as well.119 In a truly race neutral society, resources would be allocated in a
way that reflected the racial balance of the society as a whole. Whites and racial minorities
would share the benefits and burdens of society in a way that reflected their respective
percentages of the population. Occupations such as corporate executive, domestic worker, and farm laborer would not be
stereotyped by the racial correlates of their practitioners. Election to Congress and the White House would not overwhelmingly be
bestowed on the members of a single race. And wealth, education, and social status would just as likely be found in one racial group as in
another. Individual differences in merit, talent, or aptitude would continue to exist, but there is no reason to suspect that those differences
would in any way correlate with the race of the individuals in whom they were observed. Indeed, such a suspicion would necessarily rest
on a belief in inherent racial attributes that would, of course, contradict the aspirational starting assumption of race neutrality on which this

Such a vision is presently too utopian to be realistically imagined. But it does serve to
remind us that a culture in which there was genuine racial equality would look very different
from the culture in which we presently reside.120 Although it is difficult to see how we could ever transform
ourselves into a culture from which racial discrimination had finally been eradicated, it is relatively easy to see how we
could begin to approximate the allocation of resources that such a culture would contain. The
thought experiment is based.

disparate impact provision of Title VII constitutes a promising precommitment strategy that would hopefully help us achieve more racial

By explicitly reaffirming the

value of a disparate impact provision in Title VII, Congress apparently appreciated the
importance of adopting an antidiscrimination strategy that focused on statistical effects
rather than on mere invidious intent.121 Congress apparently recognized that this focus on
disparate impact was a necessary step in its effort to displace the continuing effects of
entrenched white advantage in employment. And even the then-conservative Burger Supreme Court recognized this
when it implied the existence of a disparate impact provision in Griggs.122 The fact that subsequent Supreme Courts
have chosen to back away from disparate impact under the Constitution, 123 and now under Title VII,124 does
not mean that the precommitment strategy adopted by Congress has ceased to be a good
strategy. On the contrary, it may show that the strategy is so good that the Court feared it would
produce more racial equality than the conservative bloc was willing to bear.125 Precommiting
ourselves to the recognition of disparate impact claims would have at least three distinct
equality benefits. First, it would promote a more racially balanced allocation of societal
resources. Second, it would advance what Richard Primus has emphasized is a second-order concern with the
expressive function of antidiscrimination law by prompting us to adopt a more mature
understanding of the equal protection principle.126 Third, it would apply to the problem of
racial discrimination the idea of asymmetric precommitment that Richard Lazarus has applied to the
problem of climate change in the context of environmental law.127 These three benefits might then remind the
Supreme Court that it could use disparate impact theory to approximate genuine equality in
equality than our embedded racial habits and attitudes would allow if left to their own devices.

much the same way that it arguably uses representation-reinforcement theory to approximate genuine democracy. The recognition of
disparate impact claims would redistribute societal resources in a way that is racially more equitable. For example, under the facts of Ricci,
recognition of disparate impact considerations would have permitted a significant number of firefighter promotions to go to racial
minorities, whereas the Courts rejection of disparate impact considerations meant that the promotions went overwhelmingly to whites.128
Although

the explicit white supremacy and de jure discrimination that characterized the eras of slavery and
may now have been reduced,129 the facially neutral discriminations that are an
everyday product of our normal cultural practices still have a racially disparate impact that
Jim Crow segregation

remains potent and persistent.130 Accordingly, it is difficult to see how the habit of white privilegewhich has been
solidified by a long and insistent history of racial discriminationcan ever be reversed without attacking the problem of disparate impact

A precommitment to disparate effects will help override the allocative discrimination

that has been perpetuated by our current focus on discriminatory intent. However, even if
Washington v. Davis were overruledand the Title VII disparate impact cause of action
were applied more generally to all discrimination cases, rather than merely to cases involving employment
discrimination allocative equality would not necessarily ensue. As Ricci itself illustrates, ample doctrinal
means are available for the perpetuation of allocative inequality by a Supreme Court that is
intent on blunting the thrust of a disparate impact cause of action. Not only is the Court free
to manipulate the factors of job-related business necessity and less discriminatory
alternatives, but it can always find that other competing interests outweigh the societal
interest in avoiding disparate impact.131 The Court can even manipulate levels of generality
to expand or contract the minority populations that count for purposes of assessing disparate
impact.132 Accordingly, the recognition of disparate impact claims will operate as a successful precommitment strategy only if it is
directly.

accompanied by a genuine commitment to that strategy. Richard Primus has written an important article about the interaction between the
equal protection guarantee and disparate impact standards.133 Discussing potential tensions that exist between the Title VII disparate

it is unlikely
that statutory disparate impact claims would actually be held unconstitutional.134 However,
he does perceive a danger that the constitutionality of disparate impact claims might be
secured at the cost of conceptualizing those claims in a diluted way that deprives them of
their full potential to promote racial equality.135 For Primus, the second order expressive value that can be derived
impact provision and the Supreme Courts recent equal protection emphasis on the interests of whites, Primus believes

from disparate impact claims lies precisely in the ability of those claims to remind us that present allocative inequalities are the result of
enduring, hierarchical groupbased historical discriminations that cannot adequately be redressed through a conception of discrimination as
an individualized phenomenon.136 Accordingly, the dynamic interaction that can exist between equal protection and disparate impact has
the potential of changing our understanding of equal protection in a way that reveals the inadequacies of the individualized model.137
Although the cautionary message contained in the Primus article was published six years before the Supreme Courts decision in Ricci,

the Ricci majority appears nevertheless to have adopted the type of diluted disparate impact
understanding of individualized discrimination that Primus feared.138 A more mature conceptual
understanding of equality would, of course, pay attention to the historical persistence of our embedded cultural attitudes and behaviors,
rather than simply dismissing those attitudes and behaviors as mere reflections of societal discrimination that lie beyond the reach of legal
recognition. Richard Lazarus has suggested a way in which we can resist our normal tendency to engage in presently-appealing behavior
that, in fact, undermines our long-term objectives. Lazarus notes that the enactment, implementation, and funding of environmental
protection measures that address the problem of long-term climate change are often frustrated by the more immediate economic concerns

we can resist
such predictable impediments to our long-term interests by adopting what he terms
asymmetric precommitment strategies.139 These strategies include institutional design features that make it easier to
that special interests typically advance at various stages of the regulatory process. However, Lazarus argues that

implement future regulatory modifications when those modifications are likely to advance our climate change objectives, but make it more
difficult to implement future modifications when they are likely to undermine those objectives. In the environmental context, such design
features could include things like: supermajority requirements, multinational agreements, legislative appropriation restrictions, targeted
funding mechanisms to compete with special interest funding, targeted canons of statutory and regulatory construction, expert consultation
requirements, participatory rights for stakeholders, and targeted time restrictions.140 In responding to the argument that precommitment
strategies are undesirable because they improperly permit policymakers in the present to bind hypothetical policymakers of the future,
Lazarus argues that such precommitment in the context of climate change actually makes it possible for hypothetical policymakers of the

By utilizing the Lazarus idea of asymmetric precommitment

to conceptualize the phenomenon of racially disparate impact, I believe that it is possible to
capture the expressive benefits of disparate impact claims that Primus believes can move us
to a more mature understanding of the equal protection principle. As Ricci illustrates, the primary
future to bind policymakers of the present.141

objection to disparate impact claims that is asserted by racial minorities is that the recognition of those claims can be viewed as entailing
intentional racial discrimination against whites.142 That objection, however, rests on the view that whites and racial minorities are
similarly situated with respect to a societal resource before its allocation. As a result, taking the resource away from a white applicant
simply to prevent racially disparate impact is unfair to the white applicant, whose superior exam performance has created an entitlement to
the resource. However, analogizing the Lazarus environmental insight to the issue of race, it becomes apparent that whites and racial
minorities are not similarly situated with respect to the unallocated resource. Just as a preoccupation with immediate economic gain can
obscure long-term environmental concerns, a preoccupation with firefighter exam results can obscure the discrimination against racial
minorities that is embedded in the use of non-validated promotion exams on which whites perform better than racial minorities.
Accordingly,

the recognition of disparate impact claims is not a discriminatory deviation from

exam-based neutrality at all. Rather, it is an asymmetric precommitment strategy designed to

compensate for our predictable cultural inclination to utilize selection criteria that mask an
often unrecognized submission to the lure of white privilege. Just as asymmetric environmental
precommitment can permit a hypothetical future to bind an existing present, the asymmetric precommitment of
disparate impact recognition can permit a hypothetical nondiscriminatory future to bind an
existing discriminatory present. The dynamic relationship between disparate impact and
equal protection that is revealed through this understanding of asymmetric precommitment
constitutes the sort of expressive benefit that Primus believes can lead us to a more
sophisticated and mature understanding of the concept of equality. It can, for example, help us to
understand that contemporary claims of post-racialism do not reflect the absence of
continuing discrimination, but rather constitute a modern strategy for engaging in a
continued form of racial discrimination that is the contemporary analog to old-fashioned
discrimination. If the current Supreme Court conservative bloc majority were to share this more fully developed understanding of
the relationship between disparate impact and actual equality, it would be in a position to advance, rather than frustrate, our stated
aspirational effort to achieve racial equality. It is difficult to know precisely what a nondiscriminatory society would look like. But it
certainly seems sensible to suppose that it would be free from the rampant disparate impact that continues to characterize our supposedly
postracial, current society. When the Supreme Court engages in representation reinforcement judicial review, it tries to approximate the
results that would be produced by a properly functioning democratic process that is not distorted by the influence of invidious
discrimination against discrete and insular minorities. 143 The attempt to approximate the features of a hypothetical counterfactual culture
can often be a perilous undertaking. But a racially balanced allocation of significant societal resources would seem to be as constitutive of
such a nondiscriminatory culture as the racially imbalanced allocation of resources appears to be constitutive of the culture in which we

The elimination of identifiable disparate impact seems like such a modest step
toward the realization of meaningful racial equality that it is difficult to understand why a
Supreme Court committed to the goal of genuine equality would ever resist the chance to
remedy disparate impact. But perhaps it is the issue of genuine commitment that is causing the problem.
now reside.

The plan is a major material step towards breaking down whiteness and the direct
structural violence that it creates
Halewood 9 (Professor of Law, Albany Law School) (Peter, DEFINING RACE: LAYING DOWN THE LAW: POST-RACIALISM AND THE DERACINATION PROJECT, 72 Alb. L. Rev. 1047, LN) *we dont endorse the ableist language/edited for ableist rhetoric
White privilege is, in short, the problem. Though Barack Obama of course went on to be elected President, the vivid memory of reading Wise's
essay remains and disrupts my post-election euphoria. n4 Wise interpreted a basic truth of American society. He captured a central paradox of
American life: that, despite having no biological/genetic basis, race nonetheless controls the American perception of reality, and whiteness is
the lens through which all interpretation ultimately is refracted. Because whiteness is largely invisible to white Americans, America's racial
problem has for the most part been understood by whites as a problem of (real or imagined) black grievances. Self-congratulation on having
achieved a post-racial society is both premature and suspect, for encoded in claims of post-racialism is a sort of white triumphalism, a sense
that race and racism have finally been delegitimized as the basis for black grievance. Whiteness, however, continues to flourish largely
unexamined, operating as it does - for whites at least - largely out of sight. Post-racialism in this sense is dangerous because it de-racinates our
politics. Achieving a post-white society is a far more difficult goal: to

create among whites a [*1050] critical self-awareness of

white privilege and white racial identity would challenge the epistemic and interpretive pillars of
whiteness, chiefly objectivity and normalcy, that have guaranteed the massive material subsidies that have
accompanied whiteness from slavery forward - wealth, power, and control of the means of reproduction
of those assets. n5 These material benefits are at the core of this system but not emphasized often enough; racism ultimately advances
the interests of capital and wealth by instituting and maintaining a system of racial reward and preference. Behind the obvious racialization of
American life lies the equally obvious but often less controversial reality of massive economic inequality. Capital

and elite interests

are very unlikely to relinquish the advantages of this system and Barack Obama's election alone does not signal a change
in that equation. And decades of civil rights law culminating in the hegemony of *race neutrality* colorblindness
in constitutional theory may have unwittingly contributed to this state of affairs. These same decades, after all,
have seen a rapid and pronounced expansion of economic inequality here, lending considerable credence to the critical race theory view that
formal equality models leave untouched or even reinforce substantive inequality. Colorblindness and post-racialism may also contribute to this
inequality. What then is the relation of law to post-racialism and to post-whiteness, and what critical readings of law can we offer to disturb the

racial-industrial complex? If
blindness

whiteness is the ideology, then corrective justice, formal equality, negative rights, and color

have been the jurisprudential tools that implement and operationalize it. Thus distributive

justice, substantive equality, positive rights, and race consciousness are likely to threaten it.

Post-

racialism, for its part, cements the former tool set and marginalizes the latter. De-racination, as a goal of politics and public policy, rewards and
solidifies whiteness because whiteness is seen and experienced by whites as a non-racial form of identity - it is merely a constellation of reified
and "naturally occurring" privileges. It is an open question whether our law can be bent to the purpose of revealing those contradictions and
the self-interest endemic in the de- [*1051] racination or post-racial legal project. n6 Liberal legalism and the modern liberal state are oriented
along a set of assumptions that systematically and doctrinally favor whiteness: universality over particularity, objectivity over perspective,
neutrality over partiality, form over substance, principle over pragmatism. Whiteness - like maleness, in Catharine MacKinnon's view - assumes
the "point of view is the standard for point-of-viewlessness" and benefits by being identified with the first term in each of the forgoing dyads,
i.e., universality, objectivity, neutrality, formality, and principle. n7 Non-whiteness is then by definition particular, perspectival, partial, informal,
and unprincipled, making it jurisprudentially inferior. Post-modern critiques of law have done a lot to dismantle the former strong consensus
around the liberal legal project. Critical legal studies, feminist legal theory, and critical race theory have torn at the edges of liberal legalism
such that it is no longer possible to merely assert it without argumentation. But we are nonetheless a long way from being able to assert the
existence of a new consensus around the opposite principles, i.e. substantive equality, distributive justice, positive rights, and race
consciousness. A

sustained and unflinching "look to the bottom," on the model of critical race theory, may yield that
new consensus and be able to resist the shortsighted urge to de-racinate our law. Looking to the bottom
is the jurisprudential method by which the law seeks to ground claims to justice in the material reality of
oppression which nonwhites experience in our society. n8 It is a corrective to the metaphorical overflight that law has
traditionally done on these matters, pronouncing on oppression from an altitude of 30,000 feet. Were we to measure inequality
substantively rather than formally, to quantify subordination as an impact on real people rather than seek
only to identify impermissible discrimination, to [*1052] measure whether distributions of social goods are just overall
rather than focusing on whether discrete transactions were fair, then we would be looking to the bottom and making place and
perspective in the hierarchy of American civil rights discourse count for something. No longer would we discount the material
facts of oppression in favor of a narrative of neutral, colorblind fairness that maintains racial hierarchy in
the interest of capital accumulation. Law and the modern state have achieved legitimacy by deploying the liberal ideology of
universal values and objectivity, strenuously objected to by critical legal theory. Garden variety mind/body dualism allows liberal
legalism to privilege disembodied and decontextualized interpretations of law and society, key to
maintaining the hegemonic discourse of neutral, objective principle. n9 This has been accomplished at
the cost of repressing a whole discourse around group experiences of oppression and disparate impact,
and policy options for redressing that oppression, that do not comport with the legalism of the modern liberal state.
The persistence of whiteness and white privilege combined now with claims to post-racialism and de-racination is a potent and dangerous
mixture. The debate will continue to be about whether we should further privatize responses to subordination, leaving them to the market and
jettisoning even the meager state protections we still have, or whether we build a new and robust public commitment to progressive legalism
and substantive measures of social justice. We just do not know whether law is up to the task.