The Procedural Entrapment of Mass Incarceration: Prosecution, Race, and the Unfinished Project of American Abolition

• In Event: Back to the Future: The Construction of Time and Prisoner Reentry

Abstract

At every stage of the U.S. criminal justice process, there is ample evidence that minorities, especially African Americans, are subject to unequal treatment. The depth of racial disparity in rates of arrest, prosecution, sentencing, and incarceration has led critics of racial injustice to refer to the system of mass incarceration as the “vestige” (Angela Y. Davis) or “functional analogue” of slavery (Loïc Wacquant), and “the new Jim Crow” (Michelle Alexander). This presentation will explore the institution of prosecutorial discretion, one of the major causes of racial inequality in the criminal justice system. More than 95 percent of criminal cases are never tried before a jury, as the vast majority of those charged with crimes forfeit their Sixth and Fourteenth Amendment rights to due process in the now pervasive prosecutorial practice of plea bargaining. Looking at systemic racial disparities in sentence severity and incarceration rates for otherwise similarly situated defendants, I argue that, rather than a voluntary waiver of constitutional rights, this mass forfeiture of due process ought to be conceptualized as the product of an entrenched system of procedural entrapment. Such entrapment, I argue, ought to be abolished not only as a form of procedural and discretionary injustice, but as a practice that reinscribes rather than redresses racial and other forms of social injustice.

Author

• Brad Heiner, California State University, Fullerton