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Michigan Journal of Race & Law
Article . 2022 . Peer-reviewed
Data sources: Crossref
SSRN Electronic Journal
Article . 2022 . Peer-reviewed
Data sources: Crossref
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Carceral Intent

Authors: Danielle Jefferis;

Carceral Intent

Abstract

For decades, scholars across disciplines have examined the stark injustice of American carceralism. Among that body of work are analyses of the various intent requirements embedded in the constitutional doctrine that governs the state’s power to incarcerate. These intent requirements include the “deliberate indifference” standard of the Eighth Amendment, which regulates prison conditions, and the “punitive intent” standard of due process jurisprudence, which regulates the scope of confinement. This Article coins the term “carceral intent” to refer collectively to those legal intent requirements and examines critically the role of carceral intent in shaping and maintaining the deep-rooted structural racism and sweeping harms of America’s system of confinement. This Article begins by tracing the origins of American carceralism, focusing on the modern prison’s relationship to white supremacy and the post-Emancipation period in U.S. history. The Article then turns to the constitutional doctrine of incarceration, synthesizing and categorizing the law of carceral intent. Then, drawing upon critical race scholarship that examines anti-discrimination doctrine and the concept of “white innocence,” the Article compares the law’s reliance on carceral intent with the law’s reliance on discriminatory intent in equal protection jurisprudence. Critical race theorists have long critiqued the intent-focused antidiscrimination doctrine as incapable of remedying structural racism and inequities. The same can be said of the doctrine of incarceration. The law’s preoccupation with an alleged wrongdoer’s “bad intent” in challenges to the scope and conditions of incarceration makes it ill-suited to remedying the U.S. prison system’s profoundly unjust and harmful features. A curative approach, this Article asserts, is one in which the law focuses on carceral effect rather than carceral intent, as others have argued in the context of equal protection. While such an approach will not remedy the full scope of harms of U.S. incarceration, it would be a start.

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
0
Average
Average
Average
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