The expansion of the US carceral state has been accompanied by the emergence of what we call the 'shadow carceral state'. Operating beyond the confines of criminal law and justice institutions, the shadow carceral state expands penal power through institutional annexation and legal hybridity, including: (1) increased civil and administrative pathways to incarceration; (2) the creation of civil 'alternatives' to invalidated criminal statutes; and (3) the incorporation of criminal law into administrative legal processes in ways that enhance state carceral power. Although legal doctrine deems civil and administration sanctions to be 'not-punishment', we call for a broad understanding of penal power and the carceral state.

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In post–civil rights America, the ascendance of “law-and-order” politics and “postracial” ideology have given rise to what we call the penology of racial innocence. The penology of racial innocence is a framework for assessing the role of race in penal policies and institutions, one that begins with the presumption that criminal justice is innocent of racial power until proven otherwise. Countervailing sociolegal changes render this framework particularly problematic. On the one hand, the definition of racism has contracted in antidiscrimination law and in many social scientific studies of criminal justice, so that racism is defined narrowly as intentional and causally discrete harm. On the other hand, criminal justice institutions have expanded to affect historically unprecedented numbers of people of color, with penal policies broadening in ways that render the identification of racial intent and causation especially difficult. Analyses employing the penology of racial innocence examine the ever-expanding criminal justice system with limited definitions of racism, ultimately contributing to the erasure of racial power. Both racism and criminal justice operate in systemic and serpentine ways; our conceptual tools and methods, therefore, need to be equally systemic and capacious.

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Racial innocence is the practice of securing blamelessness for the death-dealing realities of racial capitalism. This article reviews the legal, social scientific, and reformist mechanisms that maintain the racial innocence of one particular site: the US carceral state. With its routine dehumanization, violence, and stunning levels of racial disparity, the carceral state should be a hard test case for the willful unknowing of obvious devastation. Nonetheless, the law presumes “no racism,” condones racial profiling, and interprets racial disparity in policing and imprisonment as evidence of true racial difference in criminality, not discrimination. Prominent social science research too often mimics these practices, producing research that aids in the collective erasure of racism.