How Race Haunts Criminal Justice: In/Visible Histories, Contemporary Concerns

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.

A ‘DNA snapshot’, produced by commercial company Parabon Nanolab.

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. .

Law, Time – and Folded Objects

Contemporary approaches in science and technology studies are increasingly pointing to the role of time and temporality in shaping scientific knowledge production. Can we draw on this same sensibility to make sense of legal practices of case-making?

Within legal practices, time is of the essence. Procedure introduces the necessity to take stock of precise dates and times, while judges draw on the case file to make a decision in the here-and-now about the there-and-then of the offence. The case file is crucial to these efforts: as a folder of documents, it is also a folder of these multiple temporalities.

Austen’s Axiom 40″ x 40″, Jeanne Vadeboncoeur (2018)

On the one hand, the case file carefully traces its own procedural path through times and space, while on the other it transforms facts in such a way that they can be used in the future – that is, in Court. It mobilizes temporalities of different kinds: the historical events in question, narrated and accounted for in witness descriptions, police reports, victim and suspect statements; and the time of procedure, which is carefully traced by means of stamps, signatures, and other authorizing techniques. These temporalities are rendered explicit in the case file. Yet there is also the history of the case file’s production, consisting of situated interactions between police officers and witnesses, victims and suspects. These histories are only visible in small traces, in oblique references. Yet they may become crucial to the case, for instance when these traces seem to suggest that the prosecutor did not ensure that due diligence was taken, or if they suggest that police officers have ‘massaged’ their transcripts of the interaction with the suspect.

In highlighting these temporalities and the role they may play in Court, I conceptualize the case file as a folded object. In Chapter 6 of The Law Multiple, I write that:

objects are not simply used “in time,” but that they both enact and render invisible different times themselves. Drawing on this notion, I am interested, first, in how the legal case file folds within it multiple histories in its effort to render history (the offence in question) available; and second, how the case file may itself become the object of un- and refolding practices in the making and remaking of that same historical event. (p. 147)

I unpack how these temporalities and histories of different sorts come to play a role in truth-finding efforts in Court, and how actors, most notably the defence, may mobilize certain of the case file’s hidden, invisible histories in what I have called moments of temporal interference:

In emphasizing the making of multiple temporalities this chapter has paid specific attention to phenomena we can now start to recognize as moments of temporal interference: that is, the moments in which the time of procedure, the time of the file’s production, and chronological time cannot be neatly kept apart but rather interfere with each other to produce barriers to truth making. In each of the cases drawn on in this chapter, the time of procedure, the time of the production of the file, and the time of the offense are evoked and “brought to life” simultaneously, producing a situation both propitious (for the defendant and lawyer) and challenging (to the prosecutor). These moments of temporal interference demonstrate that, while great care is taken to set the procedural stage for truth making, such efforts do not necessarily succeed. Procedure, as well as the times and places of the case file’s production, can be evoked to bar access to the truth. (p. 162)

As an additional recourse to think about the practical making and mobilization of time in legal practice, check this wonderful collection of chapters edited by Sian Beynon Jones and Emily Grabham! Their introductory chapter is available as an open access pdf.

Seeing like a Judge: Beyond Statistical Understandings of Judicial Practice

Sentencing disparities research is an important source of insight in the reproduction of inequalities in the criminal justice system. However, they offer a highly limited understanding of what it is like to see the world like a judge.

What do statistics do? A strange question perhaps, but one that is at the heart of Chapter 3 of The Law Multiple. There, I draw on science and technology studies to trace the ways statistical accounts of judicial decision-making perform a very specific understanding of judicial practices into being.

For instance, statistical models often end up ‘black-boxing’ judicial decision-making. Instead of decision-making as a social, material, and temporal process, it is operationalized as a simple informational input and output system. Information, translated into distinct and autonomous variables, enter the black box – and out come decisions.

An example of cases as a collection of autonomous variables (taken from M. Crow, Florida’s Evolving Sentencing Policy: An Analysis of the Impact of Sentencing Guidelines Transformations)

These statistical models also tend to introduce the assumption that cases can be meaningfully translated into distinct and autonomous ‘case factors’, such as the gravity of the offense, the presence of a criminal record, or the defendants’ age, gender, and ethnicity or race.. But judges do not see defendants as ‘bundles of factors’!

In The Law Multiple, Chapters 3 and 4, I unpack these performativities of statistical modelling judicial decision-making in more detail – after which I contrast these with judges own approach to cases. The differences are pretty stark:

For judges, the case is first and foremost a narrative thing: involving times, places, events, and characters inextricably linked both to the offense in question and to their biographies, their previous actions, and the narratives they in turn provide the judge with. In sociology’s cross-sectional world, cases are bundles of factors that refer back to population groups. Questions asked about these cases are different, too. In these legal practices, the question with regards to the case is: what’s its story? In the second, the question with regard to the case is the quintessentially sociological question, what lies behind it? (p. 114)

This specific judicial approach to cases also demands a different kind of affective orientation to the case, I argue:

Both kinds of cases – narrative or statistical – also demand different kinds of observers. Judges’ familiarity with different whole-case narratives comes as a result of professional intimacy, prior knowledge, and practice: trained, but not necessarily pre-discursive intuitions and narrative capacities that help to distinguish between the relevant and the irrelevant, the remorseful and the remorseless, the typical and the atypical. In these practices, objectivity demands not the cancellation of the individual observer in an appeal to mechanical objectivity (Daston and Gallison 1992), but precisely the mobilization of his or her prior knowledge, expertise, and prudence. (p. 114)

My thinking here has been shaped in particular by Cyrus Tata‘s work on the limitations of certain binary understandings of judicial craftwork. There, he points out that the statistical imagination cannot do justice to the way the facts of the case are interpretatively and holistically established to begin with – for instance, through narrative:

Cognitive-analytical work has tended simply to equate ‘factors’ with case ‘facts’. So not only does factorial explanation ignore how ‘facts’ are identified or not, it also ignores their contingent, fluid, synergistic and constructed nature. Yet criminological and socio-legal research into the criminal process has now provided ample demonstration of the social construction of case facts. The meaning of facts is contingent on the ever-evolving nature of the case. However, the factorial approach must necessarily suppose that the sentencing meaning of factors remains immutable and constant from one case to the next and indeed during each case. Far from being discrete, immutable and irreducible elements, in the routine decision process ‘factors’ are inextricable and inseparable from the meaning of the constructed and reconstructed typified whole-case narrative. (Tata 2007: 435)

His more recent Sentencing: A Social Process is an especially important source to think through the complexities of sentencing and judicial decision-making. Like The Law Multiple, it takes stock of dominant understandings of sentencing in order to develop a conception of sentencing that attends to its complex, situated, and holistic character. A fantastic read!

Authentic apologies – or feeling bad you got caught?

For judges, the question whether a defendant demonstrates authentic remorse is of paramount importance. But how do they interpret and weigh these demonstrations of remorse?

Remorse – a crucial emotion in Western understandings our obligations to others – is an essential ingredient of sentencing practices.

The Repentance of St. Peter, Guido Reni (1635)

Authentic remorse, to judges, is more than just an apology. They also actively look for signs that a defendant is ‘taking responsibility’. Indications that the defendant is bettering his or her life – by finding a meaningful way to pass the day (employment or education) or by seeking help for medical or mental health issues – can be interpreted as signs of remorse.

But the priority judges attach to such demonstrations of remorse, it turns out, really depends on the type of case. Indeed, judges tend to work with a set of ‘typical cases’ that involve typified understandings of the kind of defendant, kind of circumstances, and kind of offence. Depending on this whole-case scenario, they either value, or devalue, defendants’ demonstrations of remorse.

An example? In cases involving petty theft by drug-addicted defendants – a rather common kind of case in the lower Courts – judges tend to sideline defendants’ demonstrations of remorse. After all, ‘the addiction will be stronger than their resolve’. The ethical and political implications of such an understanding of crime, moral responsibility, and addiction are far-reaching indeed!

For more on ‘whole case narratives’, see this piece by Cyrus Tata (foundational for my thinking about judicial practices as ‘craft-work’). For a more in-depth discussion of the relationship between whole-case narratives and the interpretation and weighing of remorse, see this article in Social and Legal Studies, or Chapter 3 in The Law Multiple. There, I make the case that remorse is a contextual and mediated achievement:

Remorse, then, is mediated narratively: first, judges face a narrating subject in court, whose “story” has the capacity to inform not only their impression of the defendants’ remorsefulness, but also their sentencing decisions. The narratives proffered by the defendant face dual and sometimes conflicting demands: a narrative offering temporal-causal intelligibility, as is the case in those defendants seeking to argue a case of self-defense, for instance, may detract from the successful narration of moral and personal responsibility. Second, defendants’ remorsefulness is weighed and evaluated in and through several typical whole-case narratives: recurring and typified “cases” characterized by different modes of emplotment (Ricoeur 1992), including different conceptions of what drives people to do what they do (anger, addiction, a bad relationship), different modes of evaluating the degree to which they are responsible, and different modes of retaining or rejecting the normative expectation that they should take responsibility. (p. 109)

A great read is also this piece by Kate Rossmanith, Steven Tudor, and Michael Proeve on the question, How do Judges Know? An important source to think remorse in criminal justice settings is Richard Weisman’s Showing Remorse: Law and the Social Control of Emotion.

Decentering the Judge: On Clerks and Case Files

One of the most fascinating dimensions of researching legal practices – to me – is the way a close look at backstage proceedings reorients one’s attention to the social and material distribution of ‘judging’.

The field of socio-legal studies, because of its close association with legal scholarship, tends to think of judging as an activity that is located squarely, and only, in the judge. Literatures on discretion and the ‘social’ or ‘psychological’ influences on judicial decision-making tend to reiterate this conception of the judge as the sole (but not ‘un-influenced’) decision-maker. Of course, in a purely legal sense, this is true – or rather, must be taken as if it were true. The judge is indeed responsible and accountable for the verdict!

Yet a closer look at judicial practices suggests that this conception of judging, while legally necessary, is in fact a poor approximation of actual work practices. In my ethnography, I highlight the distributed and mediated character of judicial decision-making.

A stack of case files, ready to be ‘prepared’ by an assisting clerk

I emphasize the ‘agentic’ role of case files, which shape and delineate the case in questions, and highlight the important work done by assisting clerks in summarizing and shaping the case as it appears on judges desks. Taking this social and material mediation of judicial case-construction seriously, I suggest, is also a way to attend to legal ways of finding out ‘what really happened’. In The Law Multiple (2020), I suggest that

[W]here legal practices promise some kind of access to “what really happened” these instances are helpfully addressed using a distributed, mediated, and practical conception of observation. Particularly the case file, allowing the transportation of evidentiary materials and the translation of an event into a punishable offense, is a salient ingredient of these epistemic practices: without it, there is no “case” to be made. (p. 59-60)

The Law Multiple – Now Published

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The Law Multiple – my monograph on social scientific and legal ways of case-making – has rjust been published!

Having spent the majority of my last year teaching, I am glad to see it finally in print. It is published by Cambridge University Press, and will be available as a hard copy (both hard back and paper back) and in digital form.

An ethnography of legal and social-scientific truth claims – how they are made, what human and non-human actors they mobilize and engage, and how they end up shaping our worlds – The Law Multiple represents an attempt to stay with the practical, occasionally messy, and never not concrete practice of judges and social scientists alike. Click here for a brief summary of the text and the praise it received. Or else, take a look at the publisher’s website!

If you are an editor seeking a review copy for a journal, a fellow researcher, or a student seeking to use it in your studies, please do not hesitate to get in touch!

Like Cases Alike?

One of law’s most fundamental promises is to treat like cases alike. But what does it mean to treat like cases alike? How do judges see – or not see – differences between defendants? And what do they do with these differences – cultural, environmental, or phenotypical – in everyday sentencing practice?

Quantitative studies of sentencing disparities often demonstrate that ethnic minorities generally receive harsher punishment, while Critical Legal Studies has convincingly shown how foundational legal conceptions of individual subjects and agency are implicitly raced. However, in this piece in Social and Legal Studies, I wanted to find out how judges themselves order defendants as ‘similar’ or ‘different’. While explicitly racial modes of differentiating between defendants are rare, judges do employ three registers of difference: that of the culture, the social milieu, and of the phenotype. In Culture, Milieu, Phenotype: Articulating Race in Judicial Sensemaking Practices, I show how we can understand these three registers as articulations of race, and demonstrate how these registers each serve specific goals for judges – and have their own specific limitations.

From the piece:

How, in other words, to judge with difference is, for judges, an acute and pragmatic question. On a practical level, the law’s promise of equal treatment continually poses and fails to answer the question: when is different different enough to merit different treatment? What differences are allowed to matter? While these concerns may not always rise to the level of explicit attention, race nevertheless haunts these practices as a question, a calling, and perhaps an indictment. (p. 807)

The Curious Case of Milica van Doorn: Familial DNA searching and the Dutch-Turkish Community

What role do identification technologies in criminal justice play in zooming on individual suspects? And how do advances in familial DNA searching contribute to such identifications?

In a forthcoming publication (co-authored with A. M’charek) Un/Doing Race: On Technology, Individuals, and Collectives in Forensic Practice, we unpack this question, drawing specifically on the recently adjudicated and high-profile Milica van Doorn case. This case is only the second Dutch case in which familial DNA searching was used (the first case was the highly incendiary Marianne Vaatstra case, see for more here).

The police was struggling to find clues in the early of the 25-year long investigation.

We show how different investigatory techniques and technologies, particularly so the witness report pointing to a ‘singing Turkish man on a bicycle’, DNA biogeographic ancestry searching, and familial DNA searching, introduces different, and not necessarily commensurable suspect collectives:

Defining and delineating collectives involves various kinds of knowledges and technologies (criminological, cultural, forensic), takes multiple technologies (of writing, of memory, of seeing bodies, of isolating DNA and analysing it in relation to existing, every-evolving databases), and takes a lot of work.

Emphasizing the performativity of investigatory and forensic technologies, our contribution draws specifically on science and technology studies and the anthropology of technology. In that capacity, it also resonates strongly with my performative approach to legal case files, which – much like the technologies discussed here – actively shape and delineate the world in (legal) question.

From: Van Oorschot and A. M’charek. (2021) “Un/Doing Race: On Technology, Individuals and Collectives in Forensic Practice.” In The Handbook for the Anthropology of Technology, eds. M. Hojer Bruun and C Hasse, Palgrave. Pre-print can be found here.