Criminal Justice Through “Colorblind” Lenses: A Call to Examine the Mutual Constitution of Race and Criminal Justice

Abstract

A central paradox defines the scholarship of criminal justice and race: while racial disparities manifest throughout the criminal justice system, it is often portrayed as race‐neutral. We identify two central paradigm shifts: one in penology (that focuses on risk) and one in racial ideology (that focuses on colorblindness) that create a perfect storm; criminal justice apparatuses produce an illusion of racial neutrality while exacerbating racial disproportionality. We join an expanding list of scholars encouraging discourse that engages critical race theory on an empirical level and import this approach to the consideration of race within the criminal justice system. We identify issues with the conceptualization and operationalization of race as a variable within criminal justice research and recommend that scholars consider the mutual constitution of race and criminal justice. That is, scholarship must examine and empirically measure how race and criminal justice institutions actively form and inform each other.

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

“…The first line of scholarship has expressed deep concern for the dramatic and obvious racially disproportionate impact of crack laws and policies, which seem to be deployed as tools of racial control and subjugation (see, e.g., Alexander ; Butler ; Provine ; Tonry ). The second line of research has, with some notable exceptions, treated the on‐the‐books sentencing laws as race‐neutral, and has looked only for bias in that gap between their intended application and their actual application (for discussion, see Murakawa and Beckett ; Van Cleve and Mayes ). In recent years, critical efforts to complicate that narrow empirical approach have begun to emerge.…”

“…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 ). Therefore, racial bias cannot not be cleanly disaggregated from legal practices, and distinguishing “legal” from “extra‐legal” causal forces, like race, as is done in most empirical examinations of federal sentencing, misses where and how racially unequal outcomes are produced (Murakawa and Beckett ).…”

Risk and punishment: The recent history and uncertain future of actuarial, algorithmic, and “evidence‐based” penal techniques

“…Further, critics contend that risk tools reinscribe-and possibly amplify-existing structural inequalities, including class, race, and gender ones (Angwin et al, 2016;Goddard & Myers, 2016;Gonzalez van Cleve & Mayes, 2015;Harcourt, 2007Harcourt, , 2010O'Neil, 2016;Mayson, 2019). In particular, risk assessments hold the potential of reproducing disparities that occur in other locations in criminal justice practices (Ferguson, 2017;Harcourt, 2007Harcourt, , 2010O'Neil, 2016), including the overrepresentation of poor and minority individuals in communities targeted for aggressive policing, in criminal prosecutions, and in imprisonment (Alexander, 2008;Gonzalez van Cleve, 2016;Wacquant, 2009;Wakefield & Uggen, 2010).…”

“…Proponents see risk technologies as a data-driven or "evidence-based" way to improve criminal justice: to make it more effective, diminish biases and inconsistencies, and reduce or even end mass incarceration and mass supervision (e.g., Bonta & Andrews, 2007b;Harris, 2006;Milgram, 2014). Skeptics and critics however contend that risk techniques have helped drive and legitimize mass incarceration (Feeley & Simon, 1992;Garland, 2001;Hannah-Moffat, 2013;Harcourt, 2007;Werth, 2018) and that they reproduce-and maybe amplify-existing social inequalities but under a guise of objectivity and science (e.g., Angwin, Larson, Mattu, & Kirchner, 2016;Goddard & Myers, 2016;Gonzalez van Cleve & Mayes, 2015;Harcourt, 2010;Starr, 2015;Mayson, 2019). Within these discussions and debates, this article offers another intervention in risk scholarship: It calls for greater attention to the performative effects of risk technologies.…”

Stop-gaps, lip service, and the perceived futility of body-worn police officer cameras in Baltimore City

“…Critical race theory (CRT) establishes the fundamental role that the law and legal institutions play in the maintenance of constructed racial hierarchies (Delgado & Stefancic, 2017). Despite the promise of neutrality and the installation of allegedly color-blind agendas, the criminal legal system has proven particularly debilitating for Black, Latinx, and indigenous lives and the communities from which they originate (Armenta, 2017;Martín & Danner, 2017;Van Cleve & Mayes, 2015). CRT scholarship suggests that the contemporary "Get Tough on Crime" agenda, and all of the legislation upon which it is bolstered, is sustainable only because of the social construction of race and racism.…”