Criminalizing Race: How Direct And Indirect Criminalization Of Racial “Status” Constitutes Cruel And Unusual Punishment

Authors

Delphine Brisson-Burns

Abstract

Eighth Amendment Jurisprudence proscribes criminalization based on “status.” Based on United States Supreme Court case law, for the purposes of this paper, “status” is understood to mean an “ongoing state of being.” This paper argues that race is “status” and thus criminalizing people of color based on race violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. Further, in the United States, racial “status” is criminalized both directly and indirectly. Racial “status” is criminalized directly by police officers’ frequent use of racial profiling to build criminal cases against people of color. On the other hand, racial status is criminalized indirectly when police officers interpret conduct that is inextricably tied to racial “status” as inherently criminal. Finally, this paper argues that recriminalization of “felons” is an unconstitutional criminalization of “status,” disproportionately harming communities of color.

Recommended Citation

Delphine Brisson-Burns, Criminalizing Race: How Direct And Indirect Criminalization Of Racial “Status” Constitutes Cruel And Unusual Punishment, 21 Hastings Race & Poverty L.J. 71 (2024).
Available at: https://repository.uclawsf.edu/hastings_race_poverty_law_journal/vol21/iss1/3