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† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice, is contributing editor of CI. Criminal Injustice is published every Wednesday at 6 pm.

‘Whiteness’, Criminality, and the Double-Standards of Deviance/Social Control
by nancy a heitzeg

“All domination is, in the last instance, maintained through social control strategies” ~ Eduardo Bonilla-Silva 2001

Authors Note: The following is an excerpt from a piece recently published in Contemporary Justice Review: Issues in Criminal, Social, and Restorative Justice. The full article can be downloaded here.

The wholesale criminalization of Blackness is juxtaposed with the medical mitigation of white deviance, furthered by media coverage and, in a country driven by raw capitalism, buttressed by profligate profiteering, even from social control. The prison industrial complex and the treatment industrial complex serve as increasingly intertwined alternatives for defining and controlling, not just deviance, but race, in the era of “color-blindness”.

So as Black communities in Baltimore/Everywhere remain under siege, James Holmes pleads not guilty by reason of insanity to 166 counts of murder, attempted murder and more.

And the Band Played On.

Abstract

Mitigation of White Criminality

Whites are responsible for the majority of all crime committed in the United States; this true for all categories of crime – violent property, victimless, white-collar and corporate (BJS, 2012; Simon, 2007). Whites also comprise the bulk of some of our most feared criminals; they represent the over-whelming majority of serial killers and mass murders spree killers (Follman, Arensen & Pan, 2013). Yet the image of the criminal is hardly one that evokes Whiteness.

Certainly one of the prime benefits of white privilege is the right to represent yourself and to do so without fear that your actions will be used to condemn all who look like you or vice versa. In a discussion of the Aurora shooting, DeVaga (2012) notes this about James Holmes:

When viewed through the white racial frame, there is nothing in his deeds on last Friday night that reflects upon the behavior of white people, generally, or white men in particular…..

The freedom to kill, maim, commit wanton acts of violence, and to be anti-social (as well as pathological) without having your actions reflect on your own racial group, is one of the ultimate, if not in fact most potent, examples of White Privilege in post-Civil Rights era America. Instead of a national conversation where we reflect on what has gone wrong with young white men in our society–a group which apparently possesses a high propensity for committing acts of mass violence–James Holmes will be framed as an outlier.

But the power of white privilege extends far beyond individual versus collective accountability and representation. The white racial frame also shapes the labels we attach to aberrant white behavior and the systems called upon to control the related deviance.

When confronted with white criminality, several options exist to divorce suspects/offenders from normative whiteness. Media coverage plays a crucial role in managing perceptions (Entman & Gross 2008; Entman & Rojecki, 2000; Rhymes, 2009). Race is never discussed as a key signifier when crimes are committed by whites. Whiteness is largely absent, as Rhymes (2009) notes:

Let’s think about it, when the tragedy at Columbine occurred there were literally hundreds of news stories asking the question: “Why are our kids becoming so violent?” Not, “Why are white kids becoming so violent, but “our” kids. Now let’s contrast that with what happens when a black child is killed in a predominantly black community. The newspaper accounts more often than not refer to “the problem of black-on-black crime” or “violence amongst black youth.”

There are two scenarios unfolding here: 1) De-emphasizing or minimizing ethnicity. When the crime is perpetrated by whites, color is not the issue; the issue is “our” children and violence. 2) Emphatic emphasizing and alienation when blacks are deemed the culprits. It is no longer “our” kids; it is “black” kids or youth. There’s a big difference.

In addition to de-emphasizing race in white crime, there are efforts to exceptionalize the crime/criminal as detached from normative whiteness, Often the systemic nature of corporate crime is attributed to a few ‘bad apples’, while the larger systems that crate and support the climate of corporate criminality go ignored (Reiman & Leighton, 2012; Simon 2007). In cases of individual white criminals, media accounts often are sure to present the suspect in everyday photos -as opposed to mug shots- replete with neighbors or family “witnesses: who express shock, disbelief and attest to the character of the alleged perpetrator or the neighborhood from whence they came. This is often the case in the plethora of “reality” prison shows too; white inmates have a ‘story’ that in some ways explains their incarceration, humanizes them and evokes sympathy in viewers (Entman & Gross 2008; Welch, 2007). In highly publicized cases of extreme white violence such as mass shootings, there are often immediate appeals to the medical model to explain the deviance as “sickness”.

Although the most serious of white criminals do indeed face serious criminal charges, it is the medical model that is called on to “understand” them. They are not totally ‘bad’ — they are ‘sick’. Someone should have or could have helped them before it was too late. Of course, one of the key features of the medical model involves mitigating deviant behavior by attributing it to “sickness rather than badness” (Conrad, 2005; Conrad & Schneider, 1998) with a particular focus on the condition rather than the behavior and treatment as opposed to punishment.

The white racial frame increasingly sees white deviants as sick — and maybe some are — but contrast this with the framing of both offenders and victims of color. They are irredeemably “evil”. No questions are asked, guilt is assumed, and punishment — in draconian legal systems not posh private treatment centers — is the corresponding response. The taint of criminalization is so strong that the actually innocent may be easily swept up, wild racial hoaxes furthered without sufficient doubt, and victims, such as Trayvon Martin, reframed via white “logic” as dangerous hoodie-wearing thugs who ultimately got just what they deserved (Heitzeg, 2013; Russell-Brown 2009).

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The Medical Industrial Complex

Once laden with stigma and images of the publicly funded insane asylum, the treatment of mental illness is now a multi-billion dollar industry, privatized and driven by the wide-spread use of pharmaceuticals to treat nearly every major affliction. Let’s just call it the Medical Industrial Complex. Access to this model requires insurance or sufficient wealth to accommodate psychiatrists, $30,000 stays at private treatment facilities, and psychotropic medications. The expansion of the model was initially sparked by the addiction treatment industry for Substance Use Disorders, and now extends far beyond (APA 2000; Conrad & Schneider 1998; Substance Abuse & Mental Health Services Administration, 2012).

The medical model overlaps significantly with the legal system with regard to both Substance Use and Disruptive Behavior Disorders, the two issues most immediately connected to the War on Drugs and the school to prison pipeline. The medical model focuses on conditions/illnesses rather than intentional actions, and as such, may offer an alternative to incarceration and/or suspension and expulsion by diverting offenders away from criminal systems/labels and towards treatment (Conrad 2005). In other words, offenders may be treated for their addictions or attention deficit disorders or punished for their legal violations or disruptive behavior at school. A growing body of research indicates that race and race as it interacts with class plays a significant role in medicalization versus criminalization of both drug use and school misbehavior (Currie 2005; Huddleston & Marlowe, 2011; Safer & Malever 2000)

Racial disparities in drug war incarceration may be partly explained by the availability of diversionary treatment options for whites. This has long been the case with private treatment options that require cash payment or insurance coverage; the option to seek treatment in order to avoid legal consequences has disproportionately been available to middle and upper-class whites (Substance Abuse & Mental Health Services Administration, 2012). Increasingly substance treatment is mandated the criminal justice system as a condition of probation or parole. As a result, it is often difficult to disentangle the use of treatment as part of punishment versus treatment as a diversionary option within criminal justice. Research does indicate that race places a role in whether or not court-ordered treatment is used as diversion from criminal justice or as a condition of completing a criminal sentence.

More than 2 million are enrolled substance treatment annually; over 70% of all referrals come from criminal justice (Substance Abuse & Mental Health Services Administration, 2012). Racial disparities in access to treatment disappear when criminal records and socio-economic status are introduced (Le Cook & Alegría 2011). In other words, Blacks are most likely to be involved in treatment programs that are court-ordered as a condition of probation and parole. Unlike their white counter-parts for whom medicalization is an alternative to criminalization, the participation of Blacks in substance use treatment programs is most often not an alternative to criminal penalties but as part of a legal sentence.

The growing use of drug court is one area that provides some insight into the racial dynamics of diversion towards the medical model. The primary purpose of drug court is to use a court’s authority to reduce crime by changing defendants’ substance abuse behavior. In exchange for the possibility of dismissed charges or reduced sentences, eligible defendants who agree to participate are diverted to drug court. These programs are typically offered to defendants as an alternative to probation or short-term incarceration (Gebelein 2000). Research indicates that nearly two-thirds of all drug court cases involve white defendants, indicating that even within the context of the criminal justice system; there are efforts to divert white defendants towards treatment. Conversely, African Americans are under- represented in Drug Court, relative to their over-representation in drug arrests. As Huddleston and Marlowe (2011, p 29) report:

“Importantly, representation of African-Americans in jails and prisons was nearly twice that of both Drug Courts and probation, and was also substantially higher among all arrestees for drug-related offenses…systemic differences in plea-bargaining, charging or sentencing practices might be having the practical effect of denying Drug Court and other community-based dispositions to otherwise needy and eligible minority citizens. Further research is needed to determine whether racial or ethnic minority citizens are being denied the opportunity for Drug Court for reasons that may be unrelated to their legitimate clinical needs or legal eligibility.”

The medical model of Substance Use then does offer an alternative to incarceration that plays a role in diverting whites from the prison industrial complex and towards treatment. Similarly, the medical model plays an even clearer role in diverting white youth from the school to prison pipeline.

One of the growth sectors of psychiatry is the diagnosis and treatment of Disorders of Infancy, Childhood and Adolescence (DICA), particularly the Disruptive Behavior Disorders of Attention-Deficit Hyperactivity Disorder (ADHD), Oppositional Defiant Disorder and Conduct Disorder (APA 2000; Centers for Disease Control, 2013; Diller, 1998, Males,1996). These psychiatric labels perfectly overlap with potential educational and legal labels, and thus offer an alternative mechanism for parents, school officials and law enforcement to deal with disciplinary infractions. ADHD in particular has become the diagnosis of choice for addressing issues at school. Nearly one in five high school age boys in the United States and 15 percent of school-age children over all have received a medical diagnosis of attention deficit hyperactivity disorder (Centers for Disease Control, 2013; Schwartz & Cohen, 2013; Schwartz, 2013).

A growing body of research indicates that race/ethnicity, class, and insurance coverage are key indicators of who receives an ADHD diagnosis and medication (Morgan, Staff, Hillemeier, Farkas & Maczugia 2013; Safer & Malever 2000). These factors play a significant role in the labeling of youth in particular; study after study shows racial disparities in the diagnosis and treatment of ADHD as well as other Disruptive Behavior Disorders, with the indication that teachers were most likely to expect and define ADHD as an issue for white boys (Currie 2005; Safer& Malever 2000). Since research has found no indication that African youth violate rules at higher rates than other groups (Skiba 2002), the persistence of stereotypes of young male males and ‘cultural miscommunication’ between students and teachers is oft cited as one key factor. 83 percent of the nation’s teaching ranks are filled by whites, mostly women, and stereotypes can shape the decision to suspend or expel. The highest rates of racially disproportionate discipline are found in states that have low minority populations, indicating that boys of color are potentially threatening to white teachers, even in small numbers (Witt 2007).

As with Substance Use Disorders, ADHD becomes a vehicle for the medicalization of disruptive white students. While there is growing concern about over-diagnosis of ADHD, over0medication, and a growing black market for ADHD medications, a medical label is arguably preferable to suspension/expulsion for comparable disruptive behaviors (Graf et.al. 2013; Morgan, Staff, Hillemeier, Farkas & Maczugia 2013; Schwartz & Cohen, 2013).. This diagnosis serves as a barrier to the de facto criminalization experienced by students of color at school, who are suspended, expelled, and /or arrested at school at rates more than 3 times that of their white classmates (US Department of Education, 2012).

The expansion of the medical model creates new opportunities for the diversion of white and middle-class children and adults from the juvenile and criminal justice systems. Their substance use, their disruptive behavior, their deviance may now be defined as an addiction and a disease, not as a disciplinary infraction or a crime. (See Figure 2). White deviance is mitigated as “disease”. And as a bonus, the medical industrial complex makes billions pushing prescription drugs to children and their parents and offering them expensive treatment once they are addicted to the same.

The existence of a therapeutic medical alternative also makes the rise of the punitive state of juvenile and adult criminal justice possible. It allows for the harsh mandatory prison terms associated with the War on Drugs, a central feature in the construction of The New Jim Crow, as there is now a safety value for diverting the white, the well- to -do, the celebrity into treatment. It allows for the increasing punitive penalties associated with both educational systems and juvenile justice; it makes the school to prison pipeline possible with little fear of ensnaring white middle class youth. It allows for the mass incarceration of millions of people of color without the concomitant risk of targeting privileged race and class groups. The rise of the medical model creates the context for the escalating risks for youth and adults of color by insuring that their white counter-parts may not be caught in the same legal net. And it allows some to say, even in the face of the horrible crimes of Aurora and elsewhere, that a white mass murder’s actions must be mitigated – not only by the individualistic perks of white privilege – by appeals to mental illness and diminished responsibility.

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