A cautionary note on race and criminal prosecution

Students of race and criminal prosecution have adopted “race-centric” approaches that the former necessarily and negatively impacts the latter. Drawing on a three-year ethnography of two courts in California, I sound a note of theoretical and methodological caution. First, “systemic” perspectives postulate the phenomenon they are supposed to document and disregard the inconsistencies in quantitative studies. In reality, guilty plea bargaining may simply pass on or even reduce the ethnoracial differentials it inherits from offending and policing. Second, studies of race in negotiated justice find small differentials and never control for class, despite overt class discrimination in the courtroom. Third, they do not reckon with the misalignment of ethnoracial categorization at the different stages of criminal processing and the fact that gradational color and not categorical race is the best predictor of racial gaps. The study of race, class and penal sanction is in dire need of reformulation that gets rid of the moralism of “disparity-talk.”