The relationship between criminal justice and race is fraught. The revival of calls for prison abolition emerging from the Black Lives Matter movement raise a set of difficult questions scholars of law and society will need to attend to.
One of these questions is: How can we understand this fraught relationship between law and race? While Critical Legal Studies convincingly show that race is foundational to legal, liberal orders (see especially Whiteness as Property by Cheryl I. Harris, and The Racial Contract by Charles W. Mills), and while statistical accounts show that criminal justice reproduces wider racial and ethnic inequalities, race also plays a more hidden role in criminal justice.
On the one hand, race may be evaded, as it was among the judges in the Dutch jurisdiction I studied. However, these judges do draw on implicitly racialized notions of culture, the social milieu, and the phenotype in making sense of individual defendants. In mobilizing these registers, they articulate (versions of) race, excavating from the past not simply biological, but humoral and phenotypical modes of ordering human bodies and lives. Analyzing what these appeals to ‘culture, ‘the social milieu’, and the phenotype do – and not do – in actual judicial practices, the piece concludes that:
Even though biological race may not be the first or primary register in which judges conceive of individual defendants, shades of its biological dimensions persist in their use of the milieu concept, which so readily includes notes on geographic isolation or a cultural–religious emphasis on endogamy and their genetic consequences. But race escapes these narrow, biological confines: it is variously articulated as ‘culture’, and certain styles and forms of dress coproduce certain defendants as, for instance, ‘Turkish-looking’. Precisely in this shape-shifting capacity, race persists. (p. 805-806)
But that does not mean that race is a stable and uncontested presence in these practices. Judges and other actors in Court may also aim to confront or destabilize these registers, for instance in an appeal to the ‘individual behind the culture’, or the arbitrary and problematic status of witness descriptions that use ethnic markers of appearance. As such, I argue that in these practices, race can be understood as both a suspect presence and an (only) ambiguous absence.
On the other hand, race also plays a dubious role in forensic technologies of investigation and identification. DNA testing, for instance, relies on databases that are themselves not racially neutral. And recent advances in DNA phenotyping – using DNA found on crime scenes to reconstruct the ‘face’ of an individual defendant – mobilize socio-cultural stereotypes and discredited, 19th century conceptions of race.
In What About Race?, published in the Routledge Companion to Actor Network Theory, Amade Mcharek and I wonder how we can draw on the tools developed in actor network-theory to make sense of race in such practices – and what actor network scholars may in turn learn from thinking with race. We emphasize that scholars need to take multiple histories into account – especially when these histories may be glossed over in appeals to the ‘progress of science’ or a presumably post-racial present:
The study of human difference is similarly a field in which narratives of scientific progress can be encountered. However, it is also a field that can at times come across as being haunted by histories of eugenics and colonialism. A narrative of historical discontinuity is one way to make race absent: insisting that at stake in genetics is not ‘race’ but population, for instance, is a way to enact a break between the scientific now and the pseudo-scientific, racist past. In a way, these narratives resonate with appeals to a post-racial present, in which we have moved beyond race… However, these times continue to haunt (Derrida 1993) what goes on in the present.
This image, we suggest, evokes not only every more granular and probabilistic data that – as it suggests – are present ‘in the DNA’. It also mobilizes social and cultural registers of race in its portrayal of the nose or hair texture of the unknown suspect. These social and cultural registers cannot meaningfully be thought without taking 19th century, raciological knowledges – drawn e.g. from physical anthropology and anthropometry – into account. Hence, the image folds within itself multiple histories. With that, race also challenges a largely implicit form of presentism that still affects certain versions of actor network-theory:
As such, thinking with the object of race also asks us to (re)consider other sites, networks and objects within these nonpresentist terms. Can we have eye for different and multiple temporalities as these are folded within ostensibly black-boxed, ‘ready-to-hand’ objects? Can we allow ourselves to trace not simply what is made present in networks, but have eye for those objects that contribute to the making of networks in more ambiguous ways?
Good sources to think about such DNA phenotyping technologies and their ethical and political implications is this position paper by a variety of science and technology scholars. This empirical piece by Roos Hopman offers a good discussion of the practical logics in play in DNA phenotyping, while this article, co-authored with Amade M’charek, delves into the oscillation between individuals and collectives in DNA phenotyping. .