'The Innocents' - judgment in art, law and deviancy

A strange series of photographs has prompted me to re-evaluate criminology. Taken by the American photographer, Taryn Simon, The Innocents, shows the men (they are mostly men) who have been acquitted of crimes through the work of the Innocence Project. Although founded at Cardozo Law School in New York, innocence projects now exist across the United States, and in other countries including Australia. Innocence projects seek to achieve acquittals for people who were wrongly convicted of crimes by introducing evidence that was unavailable or not admitted during their trial. For the most part, the new evidence is derived from DNA technologies that are regarded as definitive due to overwhelming scientific acceptance of their accuracy.

The people photographed by Simon are primarily African-American and Latin-American men who were mostly convicted of sexual offences against white women and children. Most were misidentified by rape victims from photographs or police line-ups and their identification evidence, through the work of the Innocence Project, was overturned by DNA evidence which proved conclusively that they were not the perpetrators of these sexual crimes.

Simon has taken the acquitted men to scenes that acquired special significance during the criminal process: the crime scene, the place of arrest, the alibi location, and the court room. She has also interviewed them about the experience of having been made innocent after initially being found guilty. The photographs are formally composed, painstakingly constructed, and visually compelling. Some of them are hauntingly beautiful, or hauntingly creepy, or both.

When I look at these photographs, I wonder what on earth they are telling us about law, race, gender and crime. Since the 18th century, criminologists have sought to explain crime and its perpetrators on the grounds that there was some social urge to understand why certain people commit certain crimes at particular times. Perhaps, as many criminologists have recognised, this is because there is a deeply-felt social fear of crime. But as Sydney University anthropologist Ghassan Hage noted in his book Against Paranoid Nationalism, our society fears crime as well as the social explanations for crime. If he is correct, people are no longer as interested in why other people commit crimes; they just want them to stop doing it. If he is correct, then the work of criminologists could become redundant and all we will need is more and better policing.

In the late 19th century, criminology was dominated by biological determinists, including Cesare Lombroso, who said that bad behaviour could be detected by examining the jaws, cheekbones, palms, eyes and ears of perpetrators. He also kept a lookout for “extremely acute sight, tattooing, excessive idleness, love of orgies, and the irresponsible craving of evil for its own sake”.

Francis Galton, the English founder of eugenics, believed that heredity could account for a lack of conscience or self-control and with careful breeding these characteristics could be socially eliminated.

Biological determinism shifted to a form of social determinism, where mass society and urban culture became the subjects of criminological inquiry. Robert Ezra Park argued that slums were criminogenic; Edwin Sutherland thought that criminals were produced by the people they associated with, leading to a study of gangs. During the trial of Chicago thrill-killers Leopold and Loeb, the defence lawyers argued that individual pathology - the “psychopath” - was to blame, introducing into criminology the work of psychoanalysis.

Determinist theories may have been illuminating and persuasive in different social contexts, but when looking at the photographs of The Innocents, theories of determinism seem to unravel, because these men have not committed the crime. Yet each of them, when placed in a criminally significant scene, looks as if he belongs there: a black man loitering in front of a supermarket, a heavily-muscled white man in a singlet standing in a lumber mill, a black man hiding in long grass in a remote park, a black man hiding beneath a mattress in a flea-pit motel. The images are plausible, coherent and complete, yet they do not explain anything about crime and its perpetrators. All they can tell us is that, sometimes, the criminal justice system makes dreadful mistakes.

The mendacious consequence of determinism is the misapplication of the criminal label. The Innocents collects a group of men who look enough like the rapists of white women that the corresponding label has been attached to them. As it was famously articulated by the labelling theorist Howard Becker, “The deviant is one to whom that label has successfully been applied”.

When there is the additional factor of race, the deviant label recognises the cultural conflation of the terms “black” and “criminal”.

This was recognised in the testimony of one of The Innocents, Larry Mayes, who spent 18 years in prison serving an 80-year sentence for rape, robbery and unlawful deviate conduct, before his previously-lost biological evidence was found, which exonerated him. He said of this process:

Why? Because I’m young, gifted and black. It’s always been that way. Even before you was born. I was there. I know. What it really is, is genocide: getting rid of all the young black men so we can’t produce.

What is illustrated in the photographs of The Innocents is the phenomenon that, when the deviant label comes unstuck, social attempts to control crime continue to function just as ever, even though the social explanations for crime that rely upon the label begin to fall apart.

Ronald Jones, another photographed subject, identifies poverty as a precondition for wearing the criminal label. He served eight years of a death sentence for rape and murder, confessing to the crimes after police brutality, and was eventually pardoned after DNA evidence was examined. He said:

You’re not gonna see no rich people on death row, very few of them even go to jail. I have not - to date - seen a rich man go to death row … It’s two types of justice: there’s a poor man’s justice and a rich man’s justice … I was poor and still is. I’ll never be able to feel free. Because as long as I’m poor, the same thing that they did to me in 1985, they can do it to me again.

Each of the photographed subjects cannot be separated from crime and deviancy. Their identity and their life experiences have irrevocably been altered by their having worn the criminal label. For each of these men, their failure to perform the crucial criminal act has no bearing on their social role, or indeed their personal view of themselves. Earl Washington served 17 years of a death sentence, confessing to four sex crimes and murders, even though he could neither identify the race of the victims nor the locations of the crimes. Despite this, his confessions were found to be reliable. Following his acquittal, he said:

I hate myself for going to prison knowing I was an innocent man. At one time I thought it was my fault for agreeing with what the cops said.

Neil Miller is also utterly changed by having worn the criminal label:

Life is better in prison. Because I wouldn’t have the worries that I have now. Sad to say, but it’s true. There are days that I sometimes feel, I really wish, that I was still in jail … It’s good to have freedom, but it’s just too much freedom. I’m not used to this much freedom.

Wearing the criminal label, even falsely, nevertheless turns the labelled person into a docile and self-managing subject, which has become one of the aims of the criminal justice system. Influenced by the work of Michel Foucault, this school of criminology explains how the processes of control become internalised by the individual. Even though these men have not committed the crimes, they have become obedient and self-governing because of the punitive sanctions they have experienced.

Anthony Robinson, who served 10 years of a 27-year sentence for rape, talked about how he now practices self-government:

I keep records and tabs on where I was, what I was doing, how long I was there. It’s a small price to pay for my freedom. I keep general notations, little scraps of paper … My fear is if I stop, it might happen again.

Contemporary fear of crime, and fear of the social explanations of crime, has produced new theories drawing upon now-entrenched obsessions with risk and its management. Actuarial criminology doesn’t seek to discover the causes of crime. It is interested in avoidance and dispersal. New techniques of crime prevention, monitoring and analysis have developed, focussing on security and surveillance. One of The Innocents, Tim Durham, believes that the technologies of surveillance used by the criminal justice system could equally be used by non-criminal citizens to monitor themselves. Durham served three-and-a-half years of a 3,220 year sentence for the rape and robbery of an 11-year-old girl, before being acquitted through DNA evidence.

“When I was released from prison I had considered developing a device that could be worn just like a pager that could be used to track my movements,” he said.

Surveillance captures incremental moments in the lives of everyone. While under surveillance, everyone is a potential criminal. The surveillance machine waits to catch us in the act. And while it waits, it captures us anyway. Criminology has not yet explained what these new machines actually produce, or what they prove, or detailed the value of their evidence. But I wonder if the photographs in The Innocents series initiate a new kind of criminology: one that helps us to understand the citizen who has not committed a crime.