Sentencing Leniency for Black Offenders: A Procedural Defense

In Brandon Hogan, Michael Cholbi & Alex Madva (eds.), The Movement for Black Lives: Philosophical Perspectives. New York, NY, USA: Oxford University Press (2021)
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Abstract

In response to the racial disparities that plague the American criminal justice system, the Movement for Black Lives calls for an end to policing and punishment “as we know it.” But refusing to punish violent offenses leaves unprotected those most vulnerable to crime, and outright abolition thus appears to undermine black rights and liberties. I call this the decarceration dilemma. After discussing Tommie Shelby and Christopher Lewis’s attempts to resolve the dilemma, I offer my own, which employs a procedural rather than a substantive solution. I lean on the principle of expanded asymmetry (EA), which holds that it is better to underpunish than overpunish. After defending EA, I note that it obtains only under conditions of uncertainty. I then show that because virtually all trials of black offenders meet the uncertainty condition, sentencing authorities are obliged to treat black offenders leniently. I conclude by noting the advantages of my proceduralist approach.

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Benjamin S. Yost
Cornell University

Citations of this work

Youth Prisons: Abolition or Reform?Jason Swartwood - 2023 - Public Philosophy Journal 5 (1).
Lowering the Boom: A Brief for Penal Leniency.Benjamin S. Yost - 2023 - Criminal Law and Philosophy 17 (2):251-270.

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