The Penology of Racial Innocence: The Erasure of Racism in the Study and Practice of Punishment

Abstract

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.

Crack as Proxy: Aggressive Federal Drug Prosecutions and the Production of Black–White Racial Inequality

“…In contrast, institutional theories of racism highlight how discriminatory action in organizational settings is generally produced by an amalgam of forces, often at the group level, rather than simply by singular, unconstrained actors who consciously or unconsciously discriminate against individuals of color (Haney López ). The institutional processes themselves can both produce and inculcate larger patterns of biased action, by reinforcing racialized ideologies about criminality and naturalizing racially harmful responses as appropriate interventions (Bonilla‐Silva ; Gomez ; Haney López ; Murakawa and Beckett ; Van Cleve ). As such, racial inequality is both systemic and systematized (or patterned) within organizations, rather than the sporadic, individualized action of single actors.…”

“…As a consequence, criminal law itself can and does function as a racial stratification tool and forceful weapon of racialized social control (Haney López ; Muhammad, ; Murakawa and Beckett ). In this conceptualization, the criminal justice system relies upon formally race‐neutral laws, policies, and procedures, but their deployment is racially targeted to subjugate minority populations (Van Cleve ; Van Cleve and Mayes ).…”

Looking for Race in All the Wrong Places

“…These articles also have been important because they have been some of the most relentless law and society studies to seek to influence policymakers. But, as Murakawa and Beckett have recently noted, they have also helped obscure how “the [contemporary] policies and practices of criminal justice expand in ever‐more race‐laden ways” even as such policies and their implementation are facially race neutral (: 696).…”

“…Looking at these studies as a group (my criticism is not directed at particular studies, but at the broader subfield), they have had several unintended consequences. For one thing, by measuring race as a dichotomous variable (Black or White; White or non‐White), usually based on either bureaucratic assignment (racial assignment by someone collecting government data, such as a prison intake clerk) or self‐identification from a limited list of options, these studies have contributed to the idea, accreted over time, that race is fixed (Murakawa & Beckett : 698). For example, scholarship on health disparities often fails to operationalize race in a complex way, such that researchers tend to reflexively use race as a proxy “for some unspecified combination of environmental, behavioral, and genetic factors,” which has the negative effects of both obscuring the actual cause of health outcomes and promoting the falsehood that racial differences are genetic and innate (Gravlee & Sweet : 49).…”

Discourse from #TheRealUW: What Tweets Say about Racial Concerns at a Predominately White Institution

“…Today, this historical legacy has been improved upon substantially, but inequalities persist (Brunson 2007). The criminal justice system today is set up in a way that systemically oppresses individuals of color (Murakawa and Beckett 2010). Police officers themselves and individuals carrying the right to physical legal authority have been found to tend to be biased against individuals of color, particularly black people (Johnson 2004).…”