Vagueness, Double Consciousness, and the Criminal Law: A Cognitive History

Abstract

This Article identifies and historically situates “vague conduct prohibitions,” a type of criminal law that requires racialized or otherwise marginalized individuals to anticipate the inferences that a stranger or law enforcement officer would draw about their intentions. All of us—especially those of us who live in dense cities and encounter hundreds of strangers every day—need to expend some cognitive labor on routine mindreading to anticipate others’ movements, accommodate others’ needs, avoid potentially dangerous situations, and coordinate small-scale social interactions. From the Black Codes to vagrancy laws to contemporary stop-and-frisk police practices, white Americans have used vague conduct prohibitions to defray the cognitive costs of everyday mindreading by raising the stakes for any mind misreading by Black Americans. In other words, by threatening criminal consequences for Black citizens if their actions are misunderstood by whites, vague conduct prohibitions shift the mindreading burden in routine social interactions.