Race-Based Defenses--The Insights of Traditional Analysis

Abstract

The determination of whether racialized defenses should be permitted depends upon a number of factors. Professor Alfieri is right to emphasize race-consciousness as an important variable, but wrong to give it dispositive impact. Considerations relating to the substantive law, empirical reality, and fact-finder preconceptions must also be taken into account. This essay attempts to explicate the application of these factors in racialized cases, using language familiar to judges and lawyers. In doing so, it may also increase the likelihood that Alfieri's insights will have real impact on clients, defense attorneys, judges, juries, and the administration of criminal justice as a whole.