In response to the racial disparities that plague the American criminal justice system, the Movement for Black Lives calls for an end to policing and punishment “as we know them.” But refusing to punish violent offenses leaves unprotected those most vulnerable to crime, and outright abolition thus appears to undermine black rights and liberties. The author calls this the decarceration dilemma. After discussing Tommie Shelby and Christopher Lewis’s attempts to resolve the dilemma, the author offers his own, which employs a procedural rather than a substantive solution. He leans on the principle of expanded asymmetry (EA), which holds that it is better to underpunish than overpunish. After defending EA, the author notes that it obtains only under conditions of uncertainty. He then shows that because virtually all trials of black offenders meet the uncertainty condition, sentencing authorities are obliged to treat black offenders leniently. This chapter concludes by noting the advantages of the proceduralist approach.
