The Procedural Entrapment of Mass Incarceration

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

From Philosophy & Social Criticism

More than 95 per cent of criminal convictions in the USA never go to trial, as the vast majority of defendants forfeit their constitutional rights to due process in the pervasive practice of plea bargaining. This article analyses the relationship between American mass incarceration and this mass forfeiture of procedural justice. When the whole South was convinced of the impossibility of free black labor, the first and almost universal device was to use the courts as a means of reenslaving black people. It was not then a question of crime, but rather one of color, that settled a man’s conviction on almost any charge. This article concludes by exploring the tactic of mass conscientious plea refusal through the collectively organized assertion of constitutional due process rights as a strategy of resisting mass incarceration.

 

Abstract

More than 95 per cent of criminal convictions in the USA never go to trial, as the vast majority of defendants forfeit their constitutional rights to due process in the pervasive practice of plea bargaining. This article analyses the relationship between American mass incarceration and this mass forfeiture of procedural justice by situating the practice of plea bargaining in the normative framework drawn by recent Supreme Court rulings and the proliferation of criminal statutes, including mandatory minimum sentencing legislation. 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 rights ought to be conceptualized as the product of an entrenched system of procedural entrapment. Such entrapment, I argue, ought to be abolished not only on grounds of procedural injustice, but because the practice refashions rather than redresses forms of racial domination derived from prior eras. The article concludes by exploring the tactic of mass conscientious plea refusal through the collectively organized assertion of constitutional due process rights as a strategy of resisting mass incarceration.

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Article details
Brady Heiner
The Procedural Entrapment of Mass Incarceration: Prosecution, Race, and the Unfinished Project of American Abolition Philosophy & Social Criticism 0191453715575768, first published on April 10, 2015 doi:10.1177/0191453715575768

 

 

 

 

     
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