Document Type

Article

Publication

South Carolina Law Review

Year

2023

Abstract

This Article offers a critical review of how political considerations rooted both in domestic and foreign policy-have distorted the criminal process, thereby offering a complementary analysis of what ails the criminal justice system. This analysis builds on the by-now well-known critiques of the racial and socioeconomic discrimination at the system's heart. The result is a criminal justice system that allows political considerations to dictate results far more than they should. In domestic prosecutions, criminal law is mostly used to target those who seek to question the legitimacy of state policies, state agencies (especially the police), or corporate interests, rendering the act of protest in and of itself as criminal. This is in contrast to rightwing protest activity, which must be violent to merit prosecutorial attention. The chief example here is that of the January 6 riot, where the violent activities of the participants have driven the prosecutorial response, not the protest itself The difference between the two types of protest has clear racial implications as well, as noted below. When foreign policy interests drive a prosecution, the authorities can be more explicit in articulating racial and religious biases, with criminal defendants often powerless to defend themselves, even if their culpability is questionable at best. Even when defendants are found not guilty, the possibility of extended immigration detention looms. In other words, criminal prosecution articulates a national interest that encompasses a constructed racial component, which captures both minorities and foreigners as representative of the threat.

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