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Randall L. Kennedy, The State, Criminal Law, and Racial Discrimination: A Comment, 107 Harv. L. Rev. 1255 (1994).

Abstract: Crime is widely perceived as a major blight that decreases happiness, productivity, and security in the United States. Defining crimes and protecting people from criminality are central tasks that we assign to the state. Like many social ills, crime afflicts African- Americans with a special vengeance. African-Americans are considerably more likely than whites to be raped, robbed, assaulted, and murdered. Many of those who seek to champion the interests of African-Americans, however, wrongly retard efforts to control criminality. They charge that the state, at least in its role as administrator of criminal justice, is now (as it has been historically) an instrument of racist oppression. In all too many instances, these allegations are overblown and counterproductive; they exaggerate the extent of racial prejudice in the criminal justice system and detract attention from other problems of law enforcement that warrant more consideration. What such critiques ignore or minimize is that the main problem confronting black communities in the United States is not excessive policing and invidious punishment but rather a failure of the state to provide black communities with the equal protection of the laws. Although this failure often stems from a pervasive and racist devaluation of black victims of crime, ironically, a substantial contributing cause is a misguided antagonism toward efforts to preserve public safety.