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)