Racial inequality in jail isn't just about over-policing—it’s driven just as much by judges giving white people 'selective mercy.'
SSRN · March 17, 2026 · 6428379
The Takeaway
Most reform focuses on who gets arrested, but this reveals a hidden 'racial asset' where white people are systematically granted informal warnings and second chances before the legal process even begins. It suggests that the system doesn't just over-punish one group; it actively hides the crimes of another.
From the abstract
<div> Legal scholarship on race and criminal law has focused heavily on the overpolicing of targeted communities, specifically the disproportionate surveillance, arrest, and prosecution of Black and Brown people. This Article introduces an equally powerful but underexamined phenomenon that perpetuates racial inequity in the criminal legal system: selective mercy. Drawing on Critical Race Theory, it argues that in the context of misdemeanor law enforcement, whiteness not only shields certain indi