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

By Katherine Biber - posted Thursday, 13 October 2005

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.

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Article edited by Natalie Rose.
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This is an edited version of a paper presented by Dr Biber at Macquarie University in September 2005 as part of the 'Customs in Common' seminar series.

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About the Author

Dr Katherine Biber is a legal scholar and historian who lectures in the Division of Law, Macquarie University.

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