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.