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I argue that while our criminal justice system is explicitly based on the premise and promise of equality before the law, the administration of criminal law—whether by the officer on the beat, the legislature, or the Supreme Court—is in fact predicated on the exploitation of inequality. My claim is not simply that we have ignored inequality’s effects within the criminal justice system, nor that we have tried but failed to achieve equality there. Rather, I contend that our criminal justice system affirmatively depends on inequality. Absent race and class disparities, the privileged among us could not enjoy as much constitutional protection of our liberties as we do; and without those disparities, we could not afford the policy of mass incarceration that we have pursued over the past two decades.

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1 Conn. Pub. Int. L.J. 19-33 (2001)

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Criminal Law Commons