The Corner

Disparate Impact and Criminal Justice

The Obama administration’s efforts to apply “disparate impact” theory to the criminal justice system continue.  In a “Dear Colleague” letter to state and local courts today, the administration warned, “In court systems receiving federal funds, these practices [i.e., the enforcement of fines and fees] may also violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, when they unnecessarily impose disparate harm on the basis of race or national origin.”  The trouble is that the enforcement of just about any criminal law is going to have a disproportionate impact on some racial or ethnic group — unless, perversely, law enforcement officials engage in race-based decisionmaking in their enforcement of those laws.  But, of course, politically correct race-based decisionmaking by government officials is precisely what this administration likes and wants. 

Not incidentally, the administration is quite wrong to say that Title VI incorporates a “disparate impact” standard; the Supreme Court has ruled repeatedly that it does not.  But unfortunately that has not stopped the Obama administration from aggressively using its Title VI regulations and rules in this way.

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