CRT as an Abolitionist Project
[Remarks given as part of UC Davis Graduate Anti—Racism Symposium (2023)]
By Raquel E. Aldana, Martin Luther King Professor of Law, Co-Director of the Aoki Center for Critical Race and Nation Studies, UC Davis School of Law.
Race is a legal construction. An illustration of this is the case of Hernandez v. Texas, decided in 1954, nearly 70 years ago.
Back then, Latinos/as in the United States endured legal and social discrimination that yielded separate but unequal schools, Juan crow laws, prohibitions (and punishment) against speaking Spanish, and policing violence, to name a few. Yet, ironically, Latinos/as in the U.S. were legally constructed as white.
And so, when Pedro Hernandez, a Mexican American agricultural laborer who came to Texas as part of the influx of such workers after World War II, faced trial for killing a man, he was convicted by an all-white jury and sentenced to life in prison.
Pedro’s mother sought help from a dream team of Chicano lawyers who formed part of the oldest Latino civil rights group in the US—the League of United Latin American Citizens. LULAC recognized the commonality of Pedro’s fate. Latinos/as were often sentenced to the harshest and disproportionate forms of punishment in comparison to whites, in part, because no Latinos served on Texas juries. In fact, no Latino/a had executed their citizenship rights as jury commissioners, petit jurors, or grand jurors in over 50 Texas counties with a predominant Latino population since 1926.
Citing the Fourteenth Amendment, which had been passed in 1868 and guaranteed equal protection under the law to all African Americans, LULAC argued the practice of jury exclusion discriminated against Mexicans. But because Pedro was “white” under the law—his lawyers had to passionately explain to the Court during oral argument how Mexicans were not socially treated as white. Thankfully, the Court agreed and ruled that Latino/as were a “special class” of persons—an excluded ethnic group—who endured discrimination and were entitled to constitutional equal protection.
The year 1954 was also when Brown v. Board of Education was decided. A better known case, Brown v. Board of Education ruled that separate but equal schools, as they applied to Black Americans, violated the 14th Amendment. During this period—through a series of emblematic cases and then subsequently through the adoption of the 1964 Civil Rights Act—“race,” whether legally or socially constructed, was becoming an important tool to repair discrimination rather than an instrument to perpetuate racism.
The outcomes in the early years of race-conscious legal battles—when there was so much blatant racism to dismantle—were monumental: school desegregation; gains in voting rights; lifting of national quotas in immigration that favored Europeans; the end of Asian exclusion; the due process revolution for criminal defendants, to name a few. But these gains of racial justice remain imperfect. Years of litigation under the 14th amendment and the civil rights statutes passed decades ago have not successfully—at least not yet—turned the arch toward justice.
Today, we—people of color—no longer face explicit racial segregation but certainly de facto separation of race, ethnicities, and class that force poor people of color into neighborhoods that are more contaminated, have poorly funded schools, and count with little public investment. We are over-policed, often with violence. We have one of the largest carceral states in the world—both for crime and immigration violations—that is disproportionately filled with Black and Brown bodies. Poverty and its impact in this country is not colorblind.
Given this, critical race theorists—including me—are increasingly questioning the ways in which laws—even anti-racists laws—are imperfect solutions to racism. At its core, CRT is a project that moves beyond reformist approaches to law and instead seeks to root out racism or other types of pernicious “-isms” from their core. This is a project of reallocating power, redistributing resources, redefining values, and even abolishing in order to rebuild a more just society.
Why has the anti-racist reformist project largely failed? One problem with reformist approaches in law is that these seek inclusion of people of color in spaces that remain, at their core, racist.
Let’s go back to the Hernandez case. The case was an important victory for Latinos/as and paved the way for other important Latino civil rights victories. However, the participation of Latinos/as in juries could not guarantee that the inherent racists structures that led Latinos/as to face the criminal justice system disproportionately would be dismantled. Moreover, juries have no power to invalidate these structures. Indeed, the practice known as jury nullification—in which a juror finds innocence because laws are immoral—is itself illegal. So, at their core, juries are there—whether diverse or not—to validate the criminal justice system. It is not as if Hernandez’s lawyers failed to recognize this. They hoped, however, that Latinos/as might start to influence the system. More diverse juries do matter to racial justice but they have little power to dismantle the larger forces that disproportionately lock up Brown and Black bodies. A related problem with inclusion of people of color into racist institutions is that we assume too much that they themselves are not already tainted or prone to be tainted by racism. We see this a lot with black and brown and Asian police officers who also beat up their brethren; or with Latino/a border patrol officers who occupy those institutions in large numbers without making these more humane.
Another reason why racially-conscious remedies have failed is due to the effective backlash against race as a tool for legal reform and as an anti-racist project. From their very inception, the remedies for racist practices have been co-opted by traditional legal institutions, like the courts, in ways never intended by the anti-racist agenda. Let’s consider, for example, the ways in which law has tried to deal with the exclusion of people of color in higher education. In Bakke, the UC Davis medical school’s decision to designate a quota of 16 spots from the 100-person class to educate doctors of color responded to several compelling interests that the Supreme Court simply ignored in favor of diversity. For me, the most important of the UC Davis medical school’s identified interests was the connection that UC Davis was making to educating people of color from underserved communities as an important strategy to redress health outcome disparities. A second was its reparatory function – one that recognized that students of color who come from poor communities could not be asked to compete for admission under the traditional metrics of merit when they had to endure the inequalities of unequal funding through their K-12 education. Dismissing these compelling interests, instead, the Court constructs this concept of diversity, which, in the end, centers the benefit still on how inclusion of historically excluded students enhances the learning experiences of the dominant class. In doing so, it commodified students of color who are being brought into these institutions to help us think differently; to consider new perspectives; to help us solve problems.
Importantly, today, we see even more cynical approaches to race-based remedies in law. For example, there is now a strong preference for colorblindness—the argument that the way we fix racism is by not focusing on race. We insist on expiration dates for race-based remedies because the ultimate goal is a post-racial society. Affirmative action, for example, has expired because we supposedly fixed the race problem by increasing diversity in schools. Meanwhile, K-12 educational disparities persist and the project of redressing health disparities lags behind. We can say the same about voting rights. The Court removed the power of the Voting Rights Act to curtail voting exclusionary practices. Meanwhile, we have insurrections and persistent lies about stolen elections.
A final problem with race-conscious legal remedies is the emphasis on a narrow legal recognition of racism as something that is explicit and individualized, rather than endemic and collective. Thus, for example, we mask many racist problems or institutions as neutral while leaving these problems without legal remedies.
Let us take borders as an example. There is no denying that border enforcement is racist. I am convinced that if Latin America were whiter, we might have had open borders in the way Europe has. Think about this: Mexico is the U.S.’s second-largest trading partner, and Latinos/as make up around 20% of the U.S. labor force. Yet, we insist on shutting our borders; and we call it sovereignty and create doctrines like plenary power to essentially deny constitutional rights to immigrants. Did you know that some immigrants linger in detention as lifers and yet have no right to counsel?
As a scholar and researcher, I have always been driven by a commitment to racial and social justice. I admit that in my writings I have straddled this world of reformist versus abolitionism, usually favoring the former. I use the term abolitionism intentionally because I think this is where we should be today. As a pragmatist and a builder, the term—just like the term radical or revolutionary— makes me uncomfortable. I honestly have asked myself—as a kid who grew up in Latin America—whether, had I stayed, I would have been capable ever of radical protest—even radical action—against despotic regimes. I do not have an answer to that; I am grateful that I don’t feel I’ve had to make that choice. I am, after all, that driver who would wait to the red light at 3 a.m. in the morning in an empty street. This explains, I guess, why I became a law professor, because I still believe in the inherent value of law and its potential.
Lately, I’ve been inspired by an abolitionist movement that isn’t only about destroying but also rebuilding, even through law. In my immigration scholarship, I am still a reformist. I am arguing for trauma-informed adjudication processes that are embedded with scientific knowledge of trauma and memory, for example. I am relying on the constitution to tame the trauma of borders. But I am increasingly interrogating whether this will be enough. When civil rights advocates won due process for criminal defendants, the criminal justice system simply shifted the system to plea bargaining or to mandatory sentencing in which defense counsel and empathic judges play a minor role. So would any of the reforms I advocate in my scholarship matter as long as borders or prisons remain? I am increasingly less sure. So I am increasingly asking how does a world without borders and a world without prisons function? This requires a reimagination that is not simply about tearing down borders or prisons. It is a reimagining of how we build society to minimize or abolish crime; it is a reconception of agency and accountability and the taking of restorative justice seriously; it is also a commitment to not be so greedy so that migrants can stay home and live dignified lives rather than die trying to permeate our violent borders.