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In post-civil rights America, the ascendance of "law-and-order" politics and "postracial" ideology have given rise to what we call the penology of racial innocence. The penology of racial innocence is a framework for assessing the role of race in penal policies and institutions, one that begins with the presumption that criminal justice is innocent of racial power until proven otherwise. Countervailing sociolegal changes render this framework particularly problematic. On the one hand, the definition of racism has contracted in antidiscrimination law and in many social scientific studies of criminal justice, so that racism is defined narrowly as intentional and causally discrete harm. On the other hand, criminal justice institutions have expanded to affect historically unprecedented numbers of people of color, with penal policies broadening in ways that render the identification of racial intent and causation especially difficult. Analyses employing the penology of racial innocence examine the ever-expanding criminal justice system with limited definitions of racism, ultimately contributing to the erasure of racial power. Both racism and criminal justice operate in systemic and serpentine ways; our conceptual tools and methods, therefore, need to be equally systemic and capacious.
In the last third of the twentieth century, the definition of racism and the reach of the criminal justice system moved in opposite directions. On the one hand, the definition of legally actionable racism contracted as antidiscrimination law came to narrowly redress only racial inequality produced by intentional harms with discrete and identifiable causes (Crenshaw 1988; Crenshaw & Peller 1993; Freeman 1978; Haney López 2000; Selmi 1997). This contraction of antidiscrimination law is part of a larger shift in American politics in which the victories of the civil rights movement in the 1960s gave way to widespread belief in a "postracial" and "color-blind" America (Bobo et al. 1997; Bonilla- Silva 2001, 2006; Brown et al. 2003). Over the same time period, however, the scope of criminal justice expanded rapidly, as the rise of "law-and-order" politics produced broader police powers, more mandatory minimum sentences, the reinstatement of the death penalty, and, ultimately, the highest incarceration rate in the world.
These divergent trends produce an alarming paradox. In antidiscrimination law and the conventional wisdom of many whites, racism is waning, aberrant, and located in the bad intentions of individual...