The procedural entrapment of 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.

Keywords

Abolition critical race theory critical prison studies plea bargaining prosecution

When the Negroes were freed and the whole South was convinced of the impossibility of free Negro labor, the first and almost universal device was to use the courts as a means of reenslaving the blacks. It was not then a question of crime, but rather one of color, that settled a man’s conviction on almost any charge. Thus Negroes came to look upon courts as instruments of injustice and oppression, and upon those convicted in them as martyrs and victims. (W. E. B. DuBois, The Souls of Black Folk (1903)¹)

In varying sites of struggle, sacrifice, and stigma, legal rituals give flesh to past narratives and new life to the residues of old codes and penal sanctions. (Colin Dayan, The Law is a White Dog (2011)²)

The prison system…has become a receptacle for all those human beings who bear the inheritance of the failure to create abolition democracy in the aftermath of slavery. And this inheritance is not only borne by black prisoners, but by poor Latino, Native American, Asian, and white prisoners. (Angela Y. Davis, Abolition Democracy (2005)³)

Irresponsible power in antebellum America

In his autobiographical texts, Frederick Douglass articulates how the system of southern slavery distorted and disfigured the existential possibilities of all who engineered and were caught up its socio-economic and cultural machinery. Enslavers and enslaved, in his account, were each subject, in differentially distinct but correlative ways, to the deleterious disfigurements of white supremacy as a political system.

The modality of debasement that I would like to extract from Douglass’ texts for the purposes of the present analysis pertains to the administrators of the regime of slavery. Specifically, Douglass gives an account of how otherwise virtuous and humane southern whites, once socialized by what he calls the ‘philosophy of slavery’, came to conform their conduct to the dehumanizing regulatory norms which that domination contract prescribed as necessary for slavemasters and slavemistresses to observe in ‘the management of their human chattels’.⁴

Douglass describes the transformation that he observed in Sophia Auld, the wife of his slave-master Thomas Auld. Over the course of Douglass’ narrative, Mrs Auld shifts from being a noble, kindly person who recognized and related to him in his subjectivity and assisted him in achieving the literacy that would later fuel his forceful articulation of abolitionism, to a violent administrator who treated Douglass ‘as though [he] were a brute’.⁵ That which thwarted and divested Auld of her moral disposition toward him, according to Douglass, was what he refers to as an irresponsible power – a power that Auld, in obedience to southern paternalism, came to assume and, through ‘training’, enthusiastically exercise in relation to Douglass.⁶

‘Irresponsible power’ signifies a power that is utterly unresponsive to the humanity of Black people and, by extension, abidingly irresponsible in a moral sense. But ‘irresponsible power’ also signifies an agency that is completely unaccountable, a freedom that inhabits a space of action where it is never called into question, never called upon to justify or give an account of itself and its actions vis-à-vis racialized subjects. As Douglass puts it, it is a power that ‘may, if [it] pleases, cripple or kill, without fear of consequences, except insofar as it may concern profit or loss’.⁷ Irresponsible power is arbitrary power, regulated only by subordination and expediency, which is why Douglass refers to it as a ‘fatal poison’ to moral conscience and social justice.⁸

Describing Austin Gore, an overseer on the Maryland plantation where he was enslaved as a youth, Douglass articulates one of the maxims to which the irresponsible power of antebellum white supremacy conformed its actions.

Mr. Gore acted fully up to the maxim laid down by the slaveholders: ‘It is better that a dozen slaves suffer under the lash, without fault, than that the master or the overseer should be convicted, in the presence of the slaves, of having been at fault.’ No matter how innocent a slave might be – it availed him nothing, when accused by Mr. Gore of any misdemeanor. To be accused was to be convicted, and to be convicted was to be punished; the one always following the other with immutable certainty. To escape punishment was to escape accusation; and few slaves had the fortune to do either, under the overseership of Mr. Gore.⁹

Stretching this maxim to its limit, Gore exercised his arbitrary discretion on one occasion to kill a slave named Demby who had fled from a flogging into a nearby creek. After recounting this bloody event, to which he bore witness as a youth, Douglass relates the plantation procedure of ‘accountability’ that followed.

[Gore] was asked by Colonel Lloyd [master of the plantation] why he resorted to this extraordinary expedient. His reply was…that Demby had become unmanageable. He was setting a dangerous example to the other slaves – one which, if suffered to pass without some such demonstration on his part, would finally lead to the total subversion of all rule and order upon the plantation. He argued that if one slave refused to be corrected, and escaped with his life, the other slaves would soon copy the example; the result of which would be the freedom of the slaves, and the enslavement of the whites. Mr. Gore’s defense was satisfactory…His horrid crime was not even submitted to judicial investigation. It was committed in the presence of slaves, and they of course could neither institute a suit, nor testify against him; and thus the guilty perpetrator…goes unwhipped of justice and uncensured by the community in which he lives.¹⁰

Gore justifies his murder of Demby with the accusation, commonplace in plantation law, that Demby had become ‘unmanageable’ and with a summary utilitarian argument about the preservation of plantation ‘rule and order’. Gore’s testimony, as an executive administrator of plantation law, suffices to dissolve the issue. His brutally harmful action, as Douglass decries, ‘was not even submitted to judicial investigation’, as both its victim and those who bore witness to it had no standing before the law and, thus, no recourse to equal protection of the law.

The irresponsible power of plantation executives persisted through permutations and sedimentations into the postbellum period, as did the social and civil death to which it subjected African Americans. After the old form of chattel slavery was abolished by the Thirteenth Amendment, former slaves and their descendants could be legally returned to servitude in three ways: (1) by ‘voluntarily’ signing a contract they could not read; (2) by becoming indebted to the people who owned all the land and commodities; or (3) by committing a crime, as defined by an all-white criminal justice system.¹¹

The oral autobiography of an anonymous African American laborer from Georgia, born during the Civil War, is exemplary of the persistence-through-permutation of the irresponsible power that Douglass condemned.¹² After being indentured for his first 21 years to the plantation owner who had owned his mother and uncle during slavery, he ‘voluntarily’ signed a 10-year labor contract with the plantation owner’s heir, a Georgia senator. Shortly thereafter, the senator turned the plantation into a convict-lease labor camp, constructing a stockade to ‘house’ prisoners leased to the senator by the state for $200 each per year.¹³ Remembering the stockade, the narrator recounts: ‘[T]here was a row of frames of stalls just large enough to hold a single mattress. The places for these mattresses were fixed one above the other; so that there was a double row of these stalls or pens on each side. They looked…like stalls for horses.’¹⁴

When the man sought to quit, he was informed that his labor contract included stipulations permitting the senator ‘to lock [him] up in a stockade at night or at any other time that [his] employer saw fit’; it also barred him from seeking alternative employment without the senator’s consent. ‘In other words,’ the author narrates, ‘we had sold ourselves into slavery – and what else could we do about it?’¹⁵

The liberal contractual framework scarcely conceals the relations of racial domination of this immediate postbellum period. I argue that racial domination and the irresponsible power that makes it possible have continued to persist through functionally analogous permutations into the present; they persist in and through the criminal justice system.

Prosecuting the postbellum racial contract

The US Constitution, through its philosophical separation of the legal powers of legislation, interpretation and enforcement, is conventionally celebrated for eliminating the kind of irresponsible, unaccountable power that Douglass describes. And yet, writing some 70 years after the framing of the US Constitution, Douglass identifies the operation of the unchecked power of racially structured domination and discrimination, not as a regrettable, contingent, accidental deviation from American ideals of governance, but as the norm – normative ‘not merely in the sense of de facto statistical distribution patterns but…in the sense of being formally codified’.¹⁶

To conceptualize this contradiction, which substructures both US democracy and the modern project of European liberalism, political philosopher Charles Mills argues that the modern social contract was underwritten by a racial contract. The racial contract is ‘a visible or hidden operator that restricts and modifies the scope of [the social contract’s] prescriptions’, conceptually partitioning and transforming human populations into ‘white’ persons, who enjoy the privileges and protections of full citizenship, and ‘nonwhite’ subpersons, who are excluded by a social ontology of race from enjoying those privileges and protections.¹⁷ Mills also argues that the racial contract ‘is continually being rewritten’, suggesting that even after the period of formal, de jure white supremacy, the racial contract continues to give differential powers and privileges to whites and to subordinate and disadvantage non-whites through ‘an illusory color blindness’.¹⁸ The contemporary racial contract, according to Mills, has been installed now as a subtext, ‘the invisible writing between the lines’ of the facially race-neutral discourses of mainstream moral and political philosophy, the philosophy of law, and the official contractual mechanisms of legal statute and jurisprudence.¹⁹

In passing, Mills also mentions that the racial contract requires enforcement:

The coercive arms of the state, which include the police and the penal system, need to be seen as in part the enforcers of the Racial Contract, working both to keep the peace and prevent crime among white citizens, and to maintain the racial order and detect and destroy challenges to it, so that across the white settler states nonwhites are incarcerated at differential rates and for longer terms.²⁰

I would like to take up this claim, suggested but undeveloped in Mills’ text, on the enforcement of the contemporary racial contract. I will argue that in the current era of mass incarceration, the racial contract is enforced through an arbitrary power functionally analogous and genealogically linked to the irresponsible power that Frederick Douglass denounced in the mid-19th century. This current power circulates between the prosecutorial and policing functions of the American system of penality; it is activated and embodied in the actions of individual prosecutors and police officers; and it inhabits an unchecked, virtually unaccountable discretionary space carved out, unremittingly enabled and deferentially sustained by legislative, judicial and executive branches of government. I will focus here on the prosecutorial function. I will show how the American plea bargain system is a technology of racial domination. Specifically, it is a form of procedural entrapment through which meanings and practices of racial domination from previous eras have been functionally sedimented in the contemporary criminal justice system.

Prosecutorial prerogative: Irresponsible power in contemporary America

A pipeline has been constructed in America between working communities of color and the prison industrial complex – a pipeline whose structural genealogy goes back to the postbellum Black Codes and convict lease system and more recently involves de-industrialization, the war on drugs, pervasive ‘tough on crime’ political rhetoric and policy, corporate media construction and amplification of ‘moral panics’²¹ around immigration and racialized street crime, and public disinvestment in education, housing, welfare, and drug and alcohol treatment. Along this pipeline, prosecutors operate as the main valve. They unilaterally decide which and how many of the accused are prosecuted and which and how many charges are leveled against them. They also increasingly determine, through the charges they select, how severely the convicted are sentenced, as mandatory minimum sentencing legislation, federal sentencing guidelines and the proliferation of criminal statutes in recent decades have vastly shifted adjudicatory power from judges to prosecutors.²²

Prosecutors are the most powerful officials in the American criminal justice system.²³ No government official has as much unreviewable power or discretion as the prosecutor.²⁴ As one Supreme Court justice, and former prosecutor, put it, ‘The prosecutor has more control over life, liberty, and reputation than any other person in America’.²⁵ And that was in 1940, long before the massive expansion of prosecutorial power that has unfolded in tandem with the wars on drugs and terror. Prosecutorial power affects every stage of the criminal justice process: prosecutors’ decisions significantly affect the arrest practices of the police, the volume and disposition of cases in the courts, and the number of people transferred to the penal system.²⁶

Given the stark racial disparities in America’s imprisoned population,²⁷ and given the racial differentials in sentence severity for similarly situated defendants,²⁸ the role of the prosecutorial function in the complexities of racial inequality in the criminal justice system, in the words of critical race legal theorist Angela J. Davis, is ‘inextricable and profound’.²⁹ So profound that – contrary to the morally upstanding, even saintly representations of criminal prosecutors in Hollywood televisual dramas – Abbe Smith, a criminal defense lawyer, Georgetown law professor and legal ethicist, argues that one cannot be both a good person and a good prosecutor, given the institutional and cultural pressures of prosecutor offices in the current regime of punishment. Even the most ‘progressive’ prosecutor offices are responsible for filling the nation’s jails and prisons with poor people (largely of color) who are accused of committing street crimes that are predominantly non-violent, economic and drug-related.³⁰

Criminal defense attorneys are not the only ones waging such critique. African American critical legal theorist Paul Butler is a former DC federal prosecutor who likewise argues that moral virtue and professional efficacy are, for contemporary criminal prosecutors, reciprocally incompatible goals. Regarding those prosecutors who are fair-minded, are concerned about economic and racial justice, and believe that mass incarceration is a problem, Butler claims: ‘[T]heir bodies and souls are working at cross-purposes.’³¹ ‘Becoming a prosecutor to help resolve unfairness in the criminal justice system’, he writes,

…is like enlisting in the army because you are opposed to the current war. It’s like working as an oil refiner because you want to help the environment. Yes, you get to choose the toxic chemicals. True, the boss might allow you to leave one or two pristine bays untouched. Maybe, if you do really good work as a low-level polluter, they might make you the head polluter. But rather than call yourself an ‘environmentalist,’ you should think of yourself as a polluter with a conscience.³²

One of the reasons for this is the widely overlooked or unknown fact, recently voiced by Supreme Court Justice Anthony Kennedy, that ‘criminal justice today is for the most part a system of pleas, not a system of trials’.³³ Plea bargaining is a process that entails an (often quick) conversation in a prosecutor’s office or a courthouse hallway between attorneys familiar with only the basics of a criminal case – with no witnesses present, no full investigation, testimony, or impartial fact-finding – resulting in a proposed resolution that is then ‘sold’ to both the defendant and the judge.³⁴ Justice Kennedy asserts that the plea bargaining process – which he (quite tellingly) describes, following legal scholars, as a form of ‘horse trading’ – ‘is not some adjunct to the criminal justice system; it is the criminal justice system’.³⁵ As things currently stand, more than 95 per cent of criminal convictions are the product of closed-door plea bargains that result in defendants ‘forfeiting’ their Fifth, Sixth and Fourteenth Amendment rights to due process,³⁶ including, in the majority of cases, ‘waiving’ the right to appellate and post-conviction review.³⁷ This means that currently more than 95 per cent of those convicted never see the fair trial by judge or jury that the constitution guarantees them – a state of affairs that led a federal judge recently to call trial by jury ‘an inconvenient artifact’.³⁸ The cases of more than 95 per cent of the 7.5 million people under US penal control have not been held to the high evidentiary standard required to validate a criminal conviction in court. The pre-trial evidentiary threshold for leveling charges is much less exacting, merely requiring a prosecutor to persuade a grand jury that there is probable cause to indict. It is not just out of cynicism that most lawyers repeat the famous expression of former New York Court of Appeal Judge Sol Wachtler that prosecutors can get a grand jury to indict a ‘ham sandwich’.³⁹ US attorneys prosecuted 162,000 federal cases in 2010; grand juries declined to return an indictment in 11 of those cases.⁴⁰

Prosecutors admit to routinely engaging in strategic charge-stacking and overcharging in the plea bargaining process. Since the onset of the era of mass incarceration in the 1970s, federal and state legislatures have fragmented and multiplied criminal statutes so as to produce an abundance of overlapping crimes. This proliferation of criminal codes has constructed a context in which a single unlawful incident typically violates a half-dozen or more prohibitions.⁴¹ Coupled with the parallel adoption during this same period of mandatory minimum sentencing schemes at state and federal levels, the power to adjudicate guilt and impose sentences has shifted from the courtroom to the backroom, from judges and juries to plea bargaining prosecutors and police officers.⁴² Through the practice of strategic charge-stacking and overcharging, prosecutors exercise lax double jeopardy doctrine by charging criminal defendants with an arsenal of overlapping crimes for which they technically have probable cause, but which they seriously doubt they could ever prove in court (i.e. beyond a reasonable doubt). The strategy of this practice is to leverage what legal scholars call the ‘trial penalty’ to compel people to ‘convict themselves’ by pleading guilty to the lesser charge or set of charges that prosecutors then offer as a more ‘lenient’ alternative to the excessive, tenuous and redundant stack of charges originally leveled.⁴³ Occasionally, defendants even enter ‘open pleas’ to all the charges against them, with no sentencing promises.

Lest one wonder whether this coercive strategy were an accidental by-product of the mandatory sentencing regime, consider the following statement of the US Sentencing Commission, an agency in the judicial branch of government, among whose principal purposes is ‘to advise and assist Congress and the executive branch in the development of effective and efficient crime policy’. The commission identifies ‘inducement to plea bargain’ as one of the rationales for mandatory minimum sentencing legislation. In its 1991 Special Report to Congress, it stated that ‘the value of a mandatory minimum sentence lies not in its imposition, but in its value as a bargaining chip to be given away in return for the resource-saving plea from the defendant to a more leniently sanctioned charge’.⁴⁴ Justice Kennedy affirmed this design in a recent Supreme Court ruling, claiming that ‘[defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes’.⁴⁵

A ‘bargain’ typically signifies a mutually advantageous agreement, an agreement between two parties in which a settlement is reached regarding what each party will give and take, perform and receive in the transaction.⁴⁶ What is given and what taken in these plea bargains? According to the conventional, facially neutral account of the plea bargain contract, prosecutors give leniency to the accused. Specifically, prosecutors agree to drop a select number of the charges that the criminal code permits – charges, which is to say, for which probable cause has been established. In exchange for this ‘gift’, the accused must in turn forfeit his or her Fifth, Sixth and Fourteenth Amendment rights of protection against self-incrimination, to trial by jury, to confront and cross-examine adverse witnesses, to present evidence, to compel the attendance of witnesses, and to require prosecutors to prove guilt beyond reasonable doubt. By inducing defendants to forfeit these rights, district attorneys (and public defenders) save the resources that would otherwise be required to grant the accused the trial by jury that the constitution guarantees her or him. As legal scholars Scott and Stuntz put it, employing the vocabulary of cost-benefit calculus that is the stock-in-trade of the prison industrial complex: ‘Plea bargaining provides a means by which prosecutors can obtain a larger net return from criminal convictions, holding resources constant.’⁴⁷

In their rationalizations of plea bargaining, legal scholars and practitioners at the highest levels of government falsely conceptualize it within an idealized framework of transaction between equals. The Supreme Court maintains that the plea bargain flows from ‘the mutuality of advantage’ to defendants and prosecutors.⁴⁸ Indeed, the Court infers (with neither evidence nor argumentation) that it is this alleged ‘mutuality of advantage’ that explains the fact that the vast majority of the criminal convictions in this country rest on pleas of guilty or nolo contendere [no contest] resulting from plea bargaining.⁴⁹ But the plea bargain regime appears like a market of mutually advantageous contracts, entered into freely by both parties, only when it is viewed abstractly – divorced from the structural coupling formed between mandatory minimum sentencing schemes and the pervasive prosecutorial practices of racially selective charging, charge-stacking and overcharging; disconnected from the context and genealogy of mass incarceration as a system of racial governance.⁵⁰

In actuality, the plea bargain regime is concretely constituted by structural asymmetries and relations of domination that are masked by the liberal contractual framework. The ‘self-incrimination’ that results from plea bargains is frequently the product of duress and unconscionable information deficits wherein defendants (who are often indigent) are deprived of the opportunity to deliberatively evaluate the ‘exchange’ of risks and penalties into which they enter. For instance, one formerly incarcerated person with whom I spoke at Project Rebound in San Francisco was given 10 minutes in court to decide in isolation whether to accept a plea carrying a 25-year sentence or face a potential life sentence. Such duress is not exceptional. Also, few criminal defendants (or people in general) realize that felony conviction, beyond possible prison time, entails a host of ‘collateral consequences’ or civil penalties that persist even after one has been released from prison. Judges and lawyers are not required to inform criminal defendants of some of the most important rights and entitlements that defendants are forfeiting when they plead guilty to a felony (and that they incur whether or not they spend a day in prison). These civil penalties (technically called ‘civil disabilities’, since courts have generally declined to interpret that such sanctions, for constitutional purposes, are actually ‘punishment’) include deportation, and denial of the rights to vote, serve on a jury, or be employed in certain occupations, as well as lifetime ineligibility for food stamps, cash assistance programs, public housing and student loans.⁵¹

Legislative and judicial representatives readily admit that mandatory minimum sentencing schemes are excessive and thus in violation of the retributive principle of proportional punishment – not by accident, but by design.⁵² And they readily admit that such utilitarian design is consequentially to ‘induce’ defendants to forfeit their constitutional rights. In the executive branch, prosecutors routinely and openly apply leverage and overlap these excessive sentencing schemes to compel defendants to ‘self-incriminate’ by ‘pleading out’ of the jury trial system to which they are constitutionally entitled.

And yet, the Supreme Court masks the coercion that undergirds this system. In the 1978 precedent-setting case that gave ultimate legal sanction to prosecutorial compulsion in plea bargaining, the Court acknowledged that punishing a person accused of a crime for exercising his or her right to trial by jury ‘is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is patently unconstitutional. But’, the Court continues, ‘in the “give-and-take” of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.’⁵³ This was in the context of a decision ruling it constitutionally legitimate for a prosecutor to threaten someone with life imprisonment (!) for a minor crime (i.e. forging an $88.30 check) in an effort to strong-arm him into forfeiting his right to a jury trial.⁵⁴

How many reasonable people, when faced with the ‘double bind’ alternative between a potential life sentence and a guaranteed 5-year sentence, would feel meaningfully free to ‘accept or reject the prosecution’s offer’ and risk exercising her or his constitutional right to due process?⁵⁵ Cognizant of systemic racial disparities, like the steeply higher rate of criminal conviction and disproportionate severity of criminal sentences meted out to subjects of color,⁵⁶ reasonable people of color are especially unlikely to feel the freedom of choice that would distinguish a relation of equal exchange from a relation of domination.

Seen in the light of these unconscionable information deficits and distributional inequities, the coercive and pervasive prosecutorial practice of charge-stacking and overcharging, and the sharply asymmetrical negotiating positions of the state and the accused; furthermore, considering the massive under-representation of people of color among criminal prosecutors (e.g. on average, 86 per cent of judges and prosecutors in federal districts are white),⁵⁷ and the enormous over-representation of people of color among those incarcerated (i.e. roughly 70 per cent, and nearly 50 per cent Black):⁵⁸ we ought to hear this multitude of pleas not as a chorus of guilty confessions singing in synch with the expediently fine-tuned orchestra of American criminal justice (playing the melody of the Law and Order theme song); and we surely ought not to view it as an expression of prosecutorial ‘leniency’ or procedural justice. Rather, we ought to conceptualize this throng of pleas, massively and predominantly, as the procedural entrapment of the impoverished and racially oppressed.

The procedural entrapment of mass incarceration

The conception of procedural entrapment appropriates its meaning from the concept of legal entrapment, which it resignifies beyond the legal doctrine’s narrowly individualistic frame. In the strict legal sense, entrapment refers to an affirmative defense of a criminal accusation in which a defendant claims that the government unlawfully induced him or her to commit a crime. If government misconduct is proven, the legal entrapment defense renders the defendant legally blameless for the crime charged, necessitating a verdict of not guilty. There are two theories of legal entrapment in the USA – one subjective, the other objective.⁵⁹ Both require that a defendant prove that a government agent induced her or him to commit the crime charged. However, once this burden of proof is met, the nature of the two legal entrapment standards and their underlying rationales diverge.

The subjective standard of legal entrapment, which is the approach held by the majority of Supreme Court justices, focuses on the origin of intent and the defendant’s state of mind and predisposition or willingness to commit the crime charged. If the judge or jury finds that the defendant was predisposed to commit a crime and that the government merely provided the defendant with an opportunity to do so, then the entrapment defense is unavailing. If, however, it is found that the government induced an ‘otherwise innocent’ person with no criminal predisposition to commit a crime, then the verdict must be not guilty. The purpose of the defense, on this reading, is founded on legislative intent and the concept of fairness to defendants. As the Court reasoned in Sorrels v. United States (1932), Congress could not have intended to punish ‘person[s] otherwise innocent’ for falling prey to a government-created trap.⁶⁰

There are obvious and dangerous problems with the subjective conception of legal entrapment, as have been pointed out by numerous Court justices and legal scholars: it allows a criminal conviction to be made on the basis of past acts or criminal convictions not currently under trial; it invites prejudicial evidence against the defendant to establish ‘criminal predisposition’; and it arguably undermines the constitutional due process principle of equal standing before the law. Justice Roberts, the original proponent of the objective entrapment standard in Sorrels, identified this latter danger of the subjective standard, as did Justice Frankfurter, who in Sherman v. United States (1958) wrote:

A test that looks to the character and predisposition of the defendant rather than the conduct of the police loses sight of the underlying reason for the defense of entrapment. Permissible police activity does not vary according to the particular defendant concerned. A contrary view runs afoul of fundamental principles of equality under law, and would espouse the notion that when dealing with the criminal classes [sic] anything goes. Past crimes do not forever outlaw the criminal and open him to [overzealous] police practices…from which the ordinary citizen is protected.⁶¹

The objective legal entrapment standard – affirmed by a minority of the Supreme Court justices along with 13 states and the American Law Institute, which incorporated the objective standard into its Model Penal Code – rejects the consideration of the degree of the defendant’s subjective predisposition and instead shifts the focus to the quality of the government’s conduct.⁶² It aims to ascertain the probable effect of governmental conduct on someone who is not ready or willing to commit the crime in question regardless of the specific defendant’s subjective predisposition, character, or criminal background.⁶³ As the Model Penal Code formulates the objective standard:

A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by…employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.⁶⁴

In essence, the objective standard makes the legitimacy of the entrapment defense turn not upon the supposed predisposition of the specific defendant, but on whether the methods of the government create a substantial risk that persons otherwise disinclined to commit the offense would have been induced to unlawful activity given the government’s (mis)conduct. The purpose of the defense in this objective, utilitarian formulation is to deter government misconduct (specifically police misconduct) and to uphold the integrity of the judicial process.⁶⁵

The concept of procedural entrapment appropriates some of its meaning from (and thus partly resembles) the concept of legal entrapment, but it also departs from and reframes the strict legal conception. Perhaps the most immediate and obvious difference is that the concept of procedural entrapment shifts the arena of investigation of entrapment from the role and nature of police inducement in a criminal defendant’s commission of crime to the role and nature of prosecutorial inducement, within the systemic practice of the plea bargain regime, in the mass forfeiture of due process rights by criminal defendants. The conception of procedural entrapment that I am proposing thus has more in common with the objective standard of legal entrapment than with the latter’s subjective counterpart insofar as the conception of procedural entrapment aims to identify, prohibit and eradicate oppressive governmental practices – to refuse to uphold the conviction of an entrapped defendant because, following Justice Frankfurter’s articulation of the objective entrapment standard, ‘even if his guilt be admitted, the methods employed on behalf of the Government to bring about conviction cannot be countenanced’.⁶⁶ The subjective entrapment standard aims only or primarily to deflect coercive law enforcement practices away from ‘industrious, law-abiding citizen[s]’ or ‘otherwise innocent’ persons whom legal executors and adjudicators implicitly conceive to be worthy of equal protection. In other words, the subjective standard functions to consecrate and concentrate such coercive governmental practices on those who are (arguably, always) already criminalized. It thus contributes to the construction of a caste of subpersons who are abandoned by the government to a state of nature with no legal recourse against state coercion and violence.⁶⁷

One could imagine an appellate legal strategy to counteract procedural entrapment that employed the objective standard of existing legal entrapment doctrine.⁶⁸ Such a strategy would work to invalidate the criminal convictions of the entrapped through legal defense aimed at proving serious procedural misconduct, which would necessitate the award not of retrial, but of the right to trial which had effectively been denied in the first place.⁶⁹ The question of procedural entrapment would then turn not on whether any given defendant who was induced to forfeit her or his right to trial by pleading guilty had been subjectively predisposed to plead guilty prior to being induced by a prosecutor, as a subjective conception would entail. A procedural entrapment defense, in parallel with the objective standard of existing entrapment doctrine, would turn on whether the prosecution employed methods of persuasion or inducement in the charging and plea bargaining process that created a substantial risk that a defendant who was unready and unwilling to plead guilty and forfeit his or her constitutional due process rights would do so under the duress.

However, while potentially a viable legal strategy for some of the procedurally entrapped, litigation is woefully inadequate as an exclusive or even primary strategy of redress of procedural entrapment. In Compelled to Crime, a study from the late 1990s of women incarcerated at Rikers Island Correctional Facility in New York, African American sociologist Beth Richie extends and adapts the legal notion of entrapment in her concept of gender entrapment.⁷⁰ The concept of gender entrapment articulates the ‘no-win situation’⁷¹ of battered Black women by resignifying entrapment beyond the legal doctrine’s narrowly individualistic frame (which focuses on either the individual criminal defendant, in the case of the subjective standard, or the individual law enforcement agent(s), in the case of the objective standard) so as to analytically encompass a wider network of governmental policies and practices and socio-economic and cultural forces that, through their cumulative intersection, constitute a structural – and specifically intersectional – form of entrapment.⁷²

Specifically, gender entrapment refers to the intersecting social processes whereby African American women who are vulnerable to men’s violence in their intimate relationships are symbolically confined by a constellation of forces that compel them to participate in illegal activities as strategies of survival – activities for which they are subsequently penalized and incarcerated by the state. For instance, prior to their arrests, the women in Richie’s study vehemently (and often quite reasonably) avoided criminal justice and social service intervention as a source of relief from their abusers, because they were operating on the basis of personal and communal knowledge of systematic mistreatment by law enforcement and social service officials, biased criminal justice practices, and the disproportionate rates of arrest, prosecution, conviction, sentencing and incarceration of men and women of color. In other words, the women were situated within (socio-economically marginalized) epistemic communities that believe police and social service intervention in their communities produces harm that is either greater than or commensurate with the interpersonal harms that actually transpire within their communities.⁷³

Operating on the basis of such knowledge and belief and aware of the fact that a domestic abuser is more likely to kill a woman he is battering if she tries to leave, the women in Richie’s study, as a strategy of survival, remained in abusive relationships in which they were compelled to participate in illegal activities rather than seek safety and security through criminal justice or social service system intervention. Richie offers the concept of gender entrapment to capture the injustice of the oppressive conditions of battered Black women whose everyday efforts to survive entail enduring dilemmatic situations in which every choice available to them carries undesirable consequences.

The concept of procedural entrapment that I am proposing here works in the spirit of Richie’s notion of gender entrapment insofar as it expands the legal notion of entrapment to encompass a broader array of structural social processes that, through their cumulative intersection, subject socially marginalized criminal defendants, prior to their conviction or incarceration, to ‘a more fundamental sense of confinement’ that is ‘strikingly similar’ to the coercive conditions of imprisonment.⁷⁴ While Richie’s book focuses on the intersectional gender entrapment on account of which battered Black women are compelled, prior to their arrest, to engage in illegal activity, the present article focuses on the procedural entrapment on account of which socially marginalized criminal defendants are compelled, after their arrest, to surrender their constitutional rights to due process.

The systematic practice of plea bargaining, I submit, functions massively and predominantly as a form of procedural entrapment. Poor criminal defendants of color are often caught in an oppressively dilemmatic, ‘no-win’ situation. Faced with a stack of selectively applied charges carrying excessively harsh, often deliberately disproportional mandatory sentences, under-resourced public legal defense, and a trial process that they are reasonably mistrustful will produce a racially unbiased verdict, they are compelled to self-incriminate. Indeed, they are arguably (if not literally) already confined, even before they are convicted, sentenced, or imprisoned.⁷⁵

Contemporary procedural entrapment is functionally analogous to a scene described by the anonymous African American laborer from postbellum Georgia referenced earlier. When the man sought release from his plantation confinement at the end of his binding 10-year contract – which he signed amid unconscionable information deficits – the senator who had ‘employed’ him said that he and other similarly situated laborers must first sign a ‘written acknowledgement of their debts’ for the excessively priced commissary supplies they were compelled to purchase during their peonage. As he recounts,

…no one of us would have dared to dispute a white man’s word…Besides, we fellows didn’t care anything about the amounts – we were after getting away; and we had been told that we might go, if we signed the acknowledgements. We would have signed anything, just to get away…That same night…we were locked up, every one of us, in one of the Senator’s stockades. The next morning it was explained to us…that, in the papers we had signed the day before, we had not only acknowledged our indebtedness, but that we also agreed to work for the Senator until the debts were paid by hard labor. And from that day forward we were treated just like convicts. Really we had made ourselves lifetime slaves, or peons, as the laws called us.⁷⁶

While current penalties may be distinct from those of the antebellum and immediate postbellum periods, they are functionally analogous, as is the sedimented logic of racial domination.

To clarify, I do not maintain that each and every one of the plea bargain convictions that occurs every two seconds during a typical workday is an instance of entrapment functionally analogous to the above transaction.⁷⁷ Some plea bargains, no doubt, do not involve charge-stacking and overcharging, and may very well deliver the intended utilitarian benefits of expediency and economy in a manner that is mutually agreeable to all parties and does not conflict with ideals of procedural justice. My argument is a structural one comprising two claims. The procedural entrapment thesis pertains to plea bargaining as a systematic practice; the sedimentation thesis concerns the function of the prosecutor within that system.

First, the procedural entrapment thesis is that the American plea bargain system (as an apparatus of population management wherein the USA maintains 5 per cent of the global population but 25 per cent of the world’s imprisoned population, and as an institution that coerces the forfeiture of due process rights to accelerate criminal conviction and confinement of those charged), is massively and predominantly, though not accidentally or exclusively, a technology of racial domination. As a system of procedural entrapment, the plea bargain regime is a necessary condition of and a leading contributor to mass incarceration, which is fundamentally immoral and racially unjust.

Without the widespread ‘forfeiture’ of rights that the plea bargain regime manufactures, the American criminal justice system simply could not process – i.e. arrest, detain, prosecute, imprison, and supervise – the vast numbers of people (predominantly of color) that it currently does. The Supreme Court recognized this in 1971: ‘If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.’⁷⁸ (And this was just 5 months after President Richard Nixon declared the war on drugs, which inaugurated the era of mass incarceration that has since led to the upsurge of the imprisoned population by over 500 per cent. If criminal justice procedural capacity would have had to multiply many times over to accommodate every criminal defendant’s constitutional right to trial in 1971, the equivalent capacity requirements today would be paralysing to state and federal budgets.) The Court then concluded that plea bargaining is ‘an essential component of the administration of justice’.⁷⁹ ‘The truth is’, writes Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute, ‘government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used. And plea bargaining is the primary technique used by the government to bypass the institutional safeguards in trials.’⁸⁰

Second, the sedimentation thesis is directed toward the irresponsible prosecutorial prerogative that undergirds the system of procedural entrapment. As an institutional agency in the entrapment, confinement and social death of millions of Black, Latino/Latina and Native American people, the power of the prosecutorial function is a functional analogue, a postbellum sedimentation, of the irresponsible power of the administrators of plantation law (i.e. the southern slaveholding class). Both function massively and predominantly to enforce and reinscribe the terms of the racial contract of their day. The discretionary power of Frederick Douglass’ overseer was not subject to judicial investigation and was shielded from the censure of the public; and the Black subjects who may have sought refuge from the overseer’s arbitrary executions were extended no legal standing and thus had no recourse to equal protection of the law.⁸¹ Though the Reconstruction Amendments to the US Constitution ostensibly abolished such racial exclusions from the American social contract, present-day prosecutorial discretion, which sometimes makes life-and-death decisions, is analogously unaccountable and unreviewable, is almost always exercised behind closed doors, is answerable only to other prosecutors, and functions analogously to subordinate, entrap and confine people of color.⁸²

The genealogical linkage of contemporary prosecutorial prerogative and the irresponsible power of the antebellum overseer

The irresponsible power of the contemporary American prosecutor is not only functionally analogous to the irresponsible power of antebellum overseers. The two are also directly genealogically linked through the impunity they each enjoy(ed). American prosecutors enjoy capacious immunity in the exercise of their adversarial functions. Official legal immunities exempt or immunize governmental officials from penalties or burdens that the law places upon other citizens. The liability from which the Supreme Court exempts American prosecutors is one that was established by the major federal civil rights statute (42 U.S.C. § 1983) originally enacted as part of the Civil Rights Act of 1871, also known as the ‘Ku Klux Klan Act’. The catalyst for the Act was the ‘campaign of violence and deception in the South, fomented by the Ku Klux Klan, which was denying citizens their civil and political rights’.⁸³ Enacted in response to these outbreaks of terrorism directed against recently emancipated African Americans – acts of terror that were often perpetrated with the support or oversight of state and local officials – Section 1983 rendered state and local governmental officials liable to criminal or civil litigation for depriving subjects of their civil rights. The law stipulates that:

Every person who under color of [state or local law] subjects…any citizen…to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws [of the United States], shall be liable to the party injured [in criminal or civil court] or other proper proceeding for redress.⁸⁴

The following quote from Representative Lowe of the 42nd Congress illustrates the historical context from which the law arose:

While murder is stalking abroad in disguise, while whippings and lynchings and banishing have been visited upon unoffending American citizens, the local administrators have been found inadequate or unwilling to apply the proper corrective. Combinations, darker than the night that hides them, conspiracies, wicked as the worst of felons could devise, have gone unwhipped of justice. Immunity is given to crime and the records of public tribunals are searched in vain for any evidence of effective redress.⁸⁵

It is worthy of note that the language that Congressman Lowe employs to censure southern law enforcement officials and the racist, terrorist violence that they supported mirrors the language that Douglass used 25 years earlier to criticize the irresponsible power of the overseer on the Maryland plantation where he had been enslaved. In both instances – one prior and one subsequent to formal abolition – grave violations of Black personhood go unchecked on account of an absence of effective legal protection and redress. Like Austin Gore, overseer of enslaved Black labor and executive administrator of plantation law, southern law enforcement officials in the wake of Emancipation functioned as overseers of Black violation and dehumanization, whether by directly conspiring in, actively supervising, or selectively overlooking anti-Black violence.

One of the primary purposes of Section 1983 of the Civil Rights Act of 1871 was to provide a civil remedy against the racist abuses that were being committed in the southern states. While the postbellum law protected all citizens in theory, its protection in practice was unavailable to many Blacks and other people of color, because legal officials were unable or unwilling to enforce those protections.⁸⁶ After its enactment, this statute lay effectively dormant for 100 years until the Supreme Court reanimated it during the era of the Second Reconstruction (1945–68),⁸⁷ in the case of Monroe v. Pape (1961).

The plaintiffs, the Monroe family (6 African American children and their parents), sued the City of Chicago when 13 police officers broke into their home. The officers roused the parents from their bed and made them stand naked in the living room while other officers ransacked every room of the house, emptying drawers and ripping mattress covers. Mr Monroe was then taken to the police station and interrogated concerning a two-day-old murder case. He was not allowed to make any telephone calls or to contact a lawyer during his interrogation. He was not charged and was finally released. The police had no search or arrest warrants when making the raid. The Monroe family sued the officers and the City of Chicago for violating their civil rights under Section 1983. The City of Chicago moved to dismiss the complaint on the grounds that officers were immune from liability for acts committed in the performance of their governmental functions. After the District Court dismissed the complaint, and the Court of Appeals affirmed the dismissal, the Supreme Court reversed the lower court decisions, ruling that Section 1983 did apply when police officers violated a person’s civil rights through the abuse of their official office. ⁸⁸ To this day, the statute remains perhaps the most important tool of legal redress for civil rights violations by state and local officials.⁸⁹

And yet, it is precisely from this liability – designed by the Reconstruction-era Congress and reactivated by the Supreme Court during the Second Reconstruction in order to check government officials and serve as a corrective to state-enacted racial terror, violence and injustice – that prosecutors have been shielded by absolute immunity. In Imbler v. Pachtman (1976), a man was convicted of felony murder and sentenced to death following a trial in which the prosecutor knowingly used false evidence and suppressed exculpatory evidence. Freed by a writ of habeas corpus after serving 9 years in prison, the man sued the prosecutor for monetary damages under Section 1983. The Court held that the prosecutor was absolutely immune from suit.⁹⁰ The immunity that American prosecutors enjoy is quite remarkable. They not only have qualified immunity, which protects an individual from liability strictly for acts or omissions undertaken in ‘good faith’. They also possess absolute immunity, which protects an individual from liability regardless of his or her state of mind at the time he or she commits an alleged constitutional violation. This means that a prosecutor can act maliciously and dishonestly, knowingly violating someone’s constitutional rights, and still be invulnerable to meaningful sanction and censure.

The court’s reasoning for granting absolute immunity, which it acknowledged ‘leave[s] the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty’, is that the alternative of even qualifying a prosecutor’s immunity ‘would prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system’.⁹¹ Placing the competing interests of prosecutors and those harmed by prosecutorial malice and dereliction on a utilitarian scale, the court wrote:

[I]t has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those [prosecutors] who try to do their duty to the constant dread of retaliation.⁹²

Colin Dayan argues that ‘In varying sites of struggle, sacrifice, and stigma, legal rituals give flesh to past narratives and new life to the residues of old codes and penal sanctions’.⁹³ The ‘balance’ (re)fashioned in the Imbler ruling, which absolutely absolves the prosecutorial function of accountability, reanimates the residues of the slavemasters’ maxim that Frederick Douglass denounced over a century earlier. That maxim, practically maintained by slaveholders, was:

It is better that a dozen slaves suffer under the lash, without fault, than that the master or the overseer should be convicted, in the presence of the slaves, of having been at fault.⁹⁴

Both maxims employ a utilitarian logic that favors the construction of irremediable violation for racialized or otherwise dishonored subjects rather than perforate the impunity of the prosecutor of (first) plantation and (then) criminal law. Analogous to the space of unreviewable and unaccountable discretion legislatively and jurisprudentially carved out for the American prosecutor, plantation law, as Douglass observed, ‘afforded scope for the full exercise of all of [the overseer’s] powers’.⁹⁵ The overseer ‘did nothing reluctantly, no matter how disagreeable’.⁹⁶ And when complaint was raised against the deleterious impact of his conduct, he exploited ‘that very convenient covert for all manner of cruelty and outrage – that cowardly alarm-cry, that the slaves would “take the place” [of the overseers and slavemasters]’ in the absence of the vigorous and fearless performance of his adversarial duties.⁹⁷ The legal rituals of American mass incarceration similarly barricade the prosecutorial function against claims of egregious action with the convenient covert that criminal defendants must not be allowed to ‘take the place’ of prosecutors by coming back in turn to prosecute prosecutors themselves for the constitutional harms the latter inflict. Granting claimants legal standing and recourse, the court maintains, would imprudently imperil prosecutors under ‘the constant dread of retaliation’, and have a chilling effect on ‘the vigorous and fearless performance of [their] duty’. ⁹⁸ In response to the Court’s repeated claims that to subject prosecutorial prerogative to any kind of meaningful scrutiny would ‘threaten to chill law enforcement’, critical race legal theorist Angela J. Davis argues, ‘To the extent that law enforcement tactics or prosecutorial policies discriminate based on race, they should not merely be chilled – they should be entirely eliminated and replaced with tactics that enforce the law fairly and impartially.’ Outside scrutiny, she writes, ‘should cause prosecutors to be more careful and meticulous in making decisions. They should motivate prosecutors to assure that similarly situated defendants are treated equitably.’⁹⁹

The everyday exercise of discretion in deciding whether or not to prosecute at all and, if so, which charges to level, has of course much more far-reaching effects on racial disparity in rates of incarceration than do more flagrant procedural injustices like knowingly using false evidence and suppressing exculpatory evidence, which are less common. In fact, prosecutors’ charging decisions, as analysis of recent sentencing data suggests, ‘appear to be the dominant procedural sources of [racial] disparity [in sentencing]’.¹⁰⁰ Here, too, prosecutorial discretionary power has been insulated from accountability for its harmful, racially disparate impact. ‘[T]he prevailing assumption’, writes Kenneth Davis in his landmark study of discretionary justice, ‘[is] that decisions to prosecute or not to prosecute never call for reasoned opinions.’¹⁰¹ As legal scholar David Cole has observed, ‘The Court has imposed nearly insurmountable barriers to persons challenging race discrimination at all stages of the criminal justice system’,¹⁰² which, according to Michelle Alexander, has effectively ‘close[d] the courthouse doors to all claims by defendants and private litigants that the criminal justice system operates in racially discriminatory fashion’.¹⁰³ In fact, no race-based claim of unconstitutional selective prosecution has succeeded since 1886.¹⁰⁴

But how has the Supreme Court effectively sealed prosecutorial power in a black box, virtually impervious to judicial review or public accountability?

Sealing the black box of prosecutorial power

In Armstrong v. United States (1996), 5 Black defendants in Los Angeles were charged in federal court with conspiring to distribute more than 50 grams of crack cocaine.¹⁰⁵ The federal public defenders assigned to the case noticed that of the 53 crack cases their office had handled in the previous three years, 48 of the defendants were Black, 5 were Latino, and not a single one was white. Suspecting that federal prosecutors were diverting whites to state courts, where the penalties for crack trafficking are much less harsh, Armstrong’s lawyers filed a motion to dismiss the indictment for selective prosecution based on race. They filed a discovery motion (i.e. to order the prosecution to produce informational materials that could support the defense’s claim), requesting federal prosecutors’ criteria for deciding whether to bring charges in federal as opposed to state court and the number and racial identity of all defendants charged with crack offenses in both federal court and state court. The district and appellate courts each granted the motion, maintaining that a ‘colorable basis’ for selective prosecution entitled a defendant to discovery, but the federal prosecutor’s office refused to release any records and appealed all the way to the Supreme Court.

The Supreme Court reversed the lower two courts and denied the defense’s request that federal prosecutors provide a race-neutral account of the disparity. The court ruled that in order to establish entitlement to discovery in selective prosecution cases based on race, a defendant must produce credible evidence that similarly situated defendants of other races could have been prosecuted, but were not.¹⁰⁶ As Alexander puts it in her review of this decision, the court demanded, ‘with no trace of irony’, that Armstrong’s defense ‘produce in advance the very thing [they] sought in discovery’, namely, information regarding white defendants that federal prosecutors selected not to charge in federal court – evidence which was solely in the prosecution’s possession.¹⁰⁷ The virtually insurmountable evidentiary hurdle that this jurisprudential precedent erected has created what Stephanos Bibas calls ‘a chicken-and-egg problem’: ‘Claimants cannot get discovery unless they already have “some evidence,” but usually discovery is the only possible source of evidence.’¹⁰⁸

But the Supreme Court illogic continues. The court majority activates a racialized conception of crime and a vicious epistemic closure to categorically recognizing, let alone actually considering, countervailing evidence to that conception. In Armstrong, the court was notably critical of the claim, made by a lower appellate court, that

…[one] must start with the presumption that people of all races commit all types of crimes – not with the premise that any type of crime is the exclusive province of any particular racial or ethnic group…[A]bsent some compelling contrary evidence, we must assume that crime knows no exclusive race or creed.¹⁰⁹

The Court purported to contest this claim by citing recent statistics of the US Sentencing Commission showing that ‘[m]ore than 90% of the persons sentenced in 1994 for crack cocaine trafficking were Black…while 93% of convicted LSD dealers were white’.¹¹⁰ Writing with suspiciously symptomatic bellicosity, the Court majority arrogated that ‘[p]resumptions at war with presumably reliable statistics have no proper place in the analysis of this issue’.¹¹¹ And yet, the Court majority bases its racialized assumptions about who commits what crimes on data about who is sentenced for what crimes. This is in a case where precisely what is at issue is whether there are racial disparities in enforcement, conviction and sentencing. The Court fails to recognize that conviction and sentencing statistics are not identical to crime commission rates and so do not prove who commits crimes. The very reason for bringing a selective prosecution claim is to show that there are people being arrested for the crimes who are not being prosecuted, convicted and sentenced.¹¹² Beyond the prosecutorial filter that selects among the pool of those arrested, there is another level of discretion that distinguishes and separates crime conviction rates from crime commission rates: namely, policing practice. Given the discrepancy between the number of crimes committed and the number of people arrested, police enforcement is necessarily selective; and the social scientific record suggests that police enforcement is racially selective.¹¹³

A US Sentencing Commission special report to Congress published the year before the Court’s decision in Armstrong admitted that, ‘[a]lthough there is a reasonably clear idea [among law enforcement] of who sells cocaine in the street and in crack and shooting houses, there is less awareness of how cocaine is sold in the suburbs, in upper-class neighborhoods, and to business people’.¹¹⁴ The same agency that the Court cites to substantiate its view of the Blackness of cocaine-related criminality indicates that the racial differentials in drug sentencing and conviction root back not to disproportionate Black criminality, but to race- and class-selective prosecution and policing practices. The only reason why law enforcement has a ‘clear idea’ about the specificities of unlawful activity in poor, racialized neighborhoods and ‘foggier’ knowledge of such activity among upper-class, suburban (white) folks is because most, if not all, of the $100 billion spent on policing each year in this country is used to target poor people of color.¹¹⁵

Note also the way that the Sentencing Commission’s report attenuates even the faint suggestion that ‘[white] business people’ participate in the business of the drug trade. In contrast to the ease with which the text attributes criminal agency to poor, racialized subjects – ‘there is a reasonably clear idea [among law enforcement] of who sells cocaine in the street’ – the text elides (white) upper-class agency in criminal activity by using the passive voice – ‘how cocaine is sold…in upper-class neighborhoods’. And the report positions (white) upper-class participation in the drug trade (about which ‘there is less awareness’) only as consumers, rather than manufacturers or traffickers – as ‘how cocaine is sold…to business people’. Both the majority opinion in Armstrong, and the Sentencing Commission report upon which it rests its claims, symptomatically manifest a racialized conception of criminality that is empirically and normatively unjustified. This conception underwrites the judicial immunization of prosecutors from claims of racial bias and informs the judiciary’s failure to impose any meaningful check on the exercise of prosecutorial discretion in charging, plea bargaining, transferring cases, and sentencing.

How is one to explain the Supreme Court’s faulty reasoning – its failure to demonstrate a basic conceptual understanding that conviction and sentencing statistics do not accurately reflect crime commission rates? Assuming that the Court’s majority, in its lifelong study of American criminal justice, was never exposed to the distinction between crime commission patterns in civil society and criminal conviction and sentencing patterns in the criminal justice process, the dissenting opinion of Justice Stevens explicitly pointed out the logical flaw in the majority’s ruling:

The presumption that some whites are prosecuted in state court is not ‘contradicted’ by the statistics the majority cites, which show only that high percentages of blacks are convicted of certain federal crimes, while high percentages of whites are convicted of other federal crimes…Those figures are entirely consistent with the allegation of selective prosecution. The relevant comparison, rather, would be with the percentages of blacks and whites who commit those crimes.¹¹⁶

A dissenting minority of the court thus presents the majority with sufficient epistemic friction to elicit critical reflection and rational revision on its part. So it seems clear that the court’s illogic is not a lapse in reason, but that it explicitly ignores this epistemic friction and the logical distinction that produces it.

It could be that the Court’s decision reflects a conscious refusal or unwillingness to question the prosecutorial decisions of the executive branch, despite evidence of harmful racial discrimination in those decisions. In McCleskey, the court majority maintained that prosecutorial discretion is a ‘necessity’ in the execution of criminal justice and that ‘unwarranted’ racial disparities in sentencing were ‘an inevitable part of our criminal justice system’. ‘Where the discretion that is fundamental to our criminal process is involved,’ the Court wrote, ‘we decline to assume that what is unexplained is invidious.’¹¹⁷ As the foregoing critical analysis of case law evidences, not only does the Court ‘decline to assume that what is unexplained [in prosecutorial discretionary practice] is invidious’, the court declines even to ask, let alone require, that prosecutors provide any explanation at all.

The Court’s willful refusal to entertain evidence that conflicts with its racialized conception of criminality illustrates a point made by Charles Mills in his contribution to the epistemology of ignorance in The Racial Contract:

[T]he Racial Contract prescribes for its signatories an inverted epistemology, an epistemology of ignorance, a particular pattern of localized and global cognitive dysfunctions (which are psychologically and socially functional), producing the ironic outcome that whites will in general be unable to understand the world they themselves have made. Part of what it means to be constructed as ‘white’ [i.e. as a political construct, not simply an ethnic category]…is a cognitive model that precludes self-transparency and genuine understanding of social realities [related to race].¹¹⁸

These localized and global cognitive dysfunctions construct ‘a racial fantasyland, a consensual hallucination’ that is ‘in no way accidental, but prescribed by the terms of the Racial Contract, which requires a certain schedule of structured blindnesses and opacities in order to establish and maintain the white polity’ – a white polity that continues to sustain itself through a systematically racist practice of mass incarceration.¹¹⁹

Conclusion: ‘Go To Trial: Crash the Justice System’

[L]aw and order exist for the purpose of establishing justice, [but] when they fail to do this they become the dangerously structured dams that block the flow of social progress. (Martin Luther King, Jr, ‘Letter From a Birmingham Jail’ (1963), p. 10)

Functionally analogous and genealogically linked to the unimpeachable immunity and irresponsible power enjoyed by Frederick Douglass’ overseer, the actions of contemporary American prosecutors, who operate inside the black box of prosecutorial discretion, are not subject to judicial review. And the subjects of color who have recently sought (and might presently seek) to raise claims of racially discriminatory prosecution are barred from legal standing by judicially (though not judiciously) imposed evidentiary standards that are virtually impossible to meet in the absence of active cooperation from prosecutors in their own prosecution. The functional discretionary space carved out for American prosecutors constitutes an irresponsible power – a space of power in which conscious and unconscious biases are allowed to flourish, at the direct expense of the flourishing of struggling communities of color across the country.¹²⁰ But like the past regimes of racial democracy to which it is genealogically linked, the contemporary system of mass incarceration is disrupted and resisted by agents of abolition whose power and ingenuity are akin to those of Frederick Douglass and Harriet Tubman.

One such abolitionist is Susan Burton, ¹²¹ whose insightful conversation with civil rights lawyer and author of The New Jim Crow, Michelle Alexander, inspired this article in the first place.¹²² Burton knows a lot about being processed through the criminal justice system. She began a downward spiral when a Los Angeles police cruiser tragically ran over and killed her 5-year-old son. Consumed with grief, without receiving as much as an apology from law enforcement, and without access to the therapy or anti-depressant medications to which someone with greater medical resources might turn for support, Burton sought comfort through illicit drugs and became addicted to crack cocaine. Living in an impoverished Black community under siege in the ‘war on drugs’, she was arrested and offered the first of many plea deals that put her behind bars for a series of non-violent, drug-related offenses. Every time she was released, she found herself trapped in an under-caste, subject to legal discrimination in employment and housing.

After 15 years of revolving in and out of prison, Burton was finally admitted to a private drug treatment facility and secured a job. When she got sober, she dedicated her life to making sure no other woman would suffer what she had been through. Burton now runs 5 safe homes for formerly incarcerated women in Los Angeles. Her organization, A New Way of Life Re-entry Project,¹²³ supplies a lifeline for women released from prison. It is also building a movement with groups like All of Us or None, organizing formerly incarcerated people and encouraging them to demand restoration of their basic civil and human rights. Burton explicitly links her organization’s efforts to abolitionist struggles akin to those of Harriet Tubman, referring to A New Way of Life as ‘an underground railroad [that] starts at the prison gates and arches over all barriers to freedom’.¹²⁴

Burton is painfully aware that the norm of pleading guilty enhances prosecutors’ capacity to process an ever-increasing number of cases, widening the net of mass incarceration. She also knows that the system of mass incarceration relies upon the widespread ‘forfeiture’ of rights that the plea bargain regime manufactures. With this in mind, Burton posed the following question to Alexander: ‘What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?’

Initially stunned, Alexander ‘launched, predictably, into a lecture about what prosecutors would do to people if they actually tried to stand up for their rights’, reminding Burton of the risks involved in facing down the arsenal of excessive and overlapping sentencing schemes that prosecutors were equipped with. She may also have reminded Burton of the severity of the so-called ‘trial penalty’ that, according to recent data analysis, makes the sentence following a jury trial conviction on average 3.5 years more severe than the sentence imposed after a guilty plea.¹²⁵

Painfully and personally aware of such risks, Burton replied, ‘Believe me, I know. I’m asking what we can do. Can we crash the system just by exercising our rights?’ To which Alexander responded:

The answer is yes. The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised [their] constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, ‘if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.’

Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial ‘emergency’ fiat). Either action would create a crisis and the system would crash – it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid.

Burton, who shares Alexander’s assessment of the risk and potentiality of mass plea refusal, claimed:

I’m not saying we should do it. I’m saying we ought to know that it’s an option. People should understand that simply exercising their rights would shake the foundations of our justice system which works only so long as we accept its terms. As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives. It would be nice if reasoned argument would do, but as we’ve seen that’s just not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives.

It would be difficult to overstate the strategic advantages and potentially transformative political repercussions of the mass conscientious plea refusal that Burton incisively proposes. In the tradition of the civil rights movement practice of non-violent direct action – which, in Martin Luther King, Jr,’s famous formulation, sought to ‘create a crisis’ in the racist structures of society by establishing a ‘creative, constructive tension’ that forces society to confront and correct racial injustices that it has constantly refused to address – the mass assertion of constitutional due process rights would rapidly and efficiently overwhelm the prosecutorial regime, throw the system of mass incarceration into crisis, and force the government to take immediate and substantive action to remedy its racial injustice.¹²⁶

In the short term, state and federal prosecutors could use their discretion to desist from prosecuting the hundreds of thousands of rights-demanding people who are annually charged with the multitude of economic, drug, immigration and other non-violent offenses currently criminalized in existing penal codes. To give a sense of the number of defendants in question, the federal system convicted 90,000 people in 2010, nearly 97 per cent of which cases were the product of plea bargains.¹²⁷ Fewer than 6,000 (6%) of these convictions were for violent and sex crimes; 54,000 (60%) involved immigration or drug offenses as the most serious conviction offense.¹²⁸ State courts made 1.1 million felony convictions in 2006, 94 per cent of which were the product of plea bargains. Only 205,000 (18%) of these convictions were for violent and sex crimes. Of those remaining, 320,000 (30%) were for property crimes and 375,000 (34%) involved a drug offense as the most serious conviction offense.¹²⁹ Taking these two annual snapshots as relatively representative, it is reasonable to claim that across state and federal jurisdictions some 750,000 people – 60 per cent of all those convicted – plead guilty or no contest each year to non-violent offenses related to immigration, drugs and property. That is equivalent in size to the entire population of Birmingham, Alabama.

However, even if prosecutors were willing en masse to shoulder the responsibility themselves of declining to litigate some significant portion of these cases, it is doubtful that the political system would allow this decidedly de-carceral deployment of prosecutorial discretion to remain in the black box (i.e. free from governmental and public scrutiny) that the widespread carceral use of discretion currently enjoys. A more likely scenario of systemic prosecutorial desistence in the face of the mass assertion of constitutional due process rights would involve prosecutors turning higher up the executive chain of command to pressure the state and US Attorneys General and Departments of Justice, and then state Governors and the US President to sanction a generalized plan for desistence. However, since the prosecutorial function is only a valve (albeit the main valve) in the pipeline of the prison industrial complex, even a generalized and federally sanctioned policy of prosecutorial desistence would not quell the tsunami of litigation produced by a systematically organized mass movement of conscientious plea refusal unless the influx of criminal cases were also curtailed at the source – that is, unless prosecutorial desistence were combined with a parallel desistence throughout law enforcement, which would necessitate seismic shifts and reductions in policing priorities, practices, expenditures and departmental organizations.

Executive desistence in the face of the systemic crisis generated by the mass assertion of due process rights would likely prove unsustainable, however, as it would presumably raise widespread doubts about the rationality, legitimacy and procedural justice of maintaining an arsenal of criminal statutes that routinely go unenforced. Selective enforcement is, of course, the stock-in-trade of the prosecutorial and policing professions, which, while financially flush in the era of mass incarceration, are executors of a distended body of criminal law that, as Harvard Law Professor William Stuntz claims, ‘covers far more conduct than any jurisdiction could possibly punish’.¹³⁰ However, programmatic desistence of the magnitude that would be required to restrict criminal justice processing to the levels that could be maintained while still accommodating the constitutional trial rights demanded by a mass movement of conscientious plea objectors would arguably erode the perceived legitimacy of the criminal law (at least with respect to the lower-spectrum of the penal code). Such potentialities would likely force the question of state and federal legislative reform in the direction of de-criminalization, or even legalization (e.g. in the case of certain classes of drugs).¹³¹ Recent state direct-democracy initiatives suggest that there may be fairly substantive popular support for attenuating criminal codes through selective statutory mitigation, decriminalization and legalization. For example, Colorado (2012), Washington State (2012), Oregon (2014), Alaska (2014) and Washington, DC (2014) have all passed measures to legalize, regulate and tax the production and sale of marijuana for recreational use. Californians also overwhelmingly passed the Three Strikes Reform Act of 2012 (Proposition 36), which shortens sentences of those subjected to life prison terms for ‘non-serious’, ‘non-violent’ offenses, and Proposition 47 (2014), which de-felonizes all drug use, downgrades a multiplicity of non-violent economic and drug offenses from felonies to misdemeanors, and reinvests the estimated $150 million in annual state savings toward school truancy and drop-out prevention, victim services, mental health and drug abuse treatment, and other programs designed to expand alternatives to incarceration. Such measures demonstrate popular support for advancing a public safety strategy beyond incarceration to include treatment and prevention.

Mass plea refusal could intensify such efforts by striking a major blow to the prison industrial complex, which, as Angela Y. Davis points out, ‘devours the social wealth needed to address the very problems [related to employment, education, housing, addiction, mental disorder, etc.] that have led to spiraling numbers of prisoners’.¹³² Not even accounting for the multibillion dollar corporate industry that weaves in and out of the public and private prison systems,¹³³ US criminal justice expenditures grew by over 600 per cent between 1980 and 2006, from $35 billion to $215 billion. Criminal justice system employment (including police, and corrections, judicial and legal, at federal, state and local levels) doubled during that same period, rising from 1.2 million to 2.5 million people.¹³⁴ Widespread sentencing mitigation at all or most levels of existing criminal codes and de-criminalization in the lower-spectrum of existing penal codes would disemploy and disencumber a significant portion of these people and resources for more socially generative employment and investment.

As an exercise in imaginative possibility, consider the following scenario. If we cut public financing of mass incarceration by, for example, returning criminal justice spending to the inflation-adjusted levels spent in 1980 – prior to the escalations of the wars on drugs and illegal immigration, which have since fueled the 500 per cent increase in the incarcerated population – over $125 billion of public wealth would be freed up each year for investment in socially reparative and generative enterprises like education, childcare, mental and physical health care and drug treatment, public housing, job training, food assistance, parks and recreation, etc. Such enterprises could easily absorb and constructively employ the millions of people that America’s carceral system currently employs and confines. As Davis maintains, ‘The creation of new institutions that lay claim to the space now occupied by the prison [industrial complex] can eventually start to crowd out the prison so that it would inhabit increasingly smaller areas of our social and psychic landscape’.¹³⁵

Of course, rather than a complex of executive desistence, legislative mitigation and de-criminalization, and public reinvestment that tilts toward a less carceral and punitive society, it is also possible that government could respond to the crisis generated by mass conscientious plea refusal by pursuing a still more punitive agenda to enlarge and shore up the procedural pipelines of mass incarceration. State legislatures could procure emergency funding to expand the procedural capacity of their respective criminal justice systems. Federal legislators could seek to bolster such expansion efforts by enacting an emergency financial bail-out of the criminal justice system akin to the 2008 bail-out of the US financial system, ramping up national criminal justice spending exponentially over and above the already historically unprecedented heights.

However, this course of action seems politically unlikely. State and municipal budgets have not only been shrinking due to regressive tax reforms and the economic crises produced by American finance capitalism and corporate outsourcing, the portions of those budgets devoted to corrections and law enforcement have already exponentially swelled, due largely to current (and in some cases unconstitutional) overcrowding in many state prison systems. The electorate’s appetite for bankrolling the prison industrial complex is waning amid steeply declining and non-existent state financing of other social priorities like education, childcare, recreation and infrastructure. Criminal procedural expansion would also be logistically fraught, straining political support, as it would entail appointing an army of judges, many of whom are elected, which would in turn require special elections, etc., as well as enlisting a multitude of eligible citizens for jury duty service, and hiring the necessary personnel to coordinate them.

In effect, on the side of utility, increasing swaths of the populace have begun to identify that public investment in mass incarceration is depleting valuable social resources while producing disproportionately little social benefit in the short term and over the long term exacerbating the very social problems related to intergenerational poverty (e.g. unemployment, substance addiction, educational disparity and mental disorder) that lead to increased incarceration. On the side of justice, increasing numbers of people are beginning to recognize that the US carceral state is falling short of the threshold of social justice requisite to render state punishment morally legitimate.¹³⁶ ‘If a society is to have the moral right to punish, its laws must be just’, writes Igor Primoratz in his book Justifying Legal Punishment.

But that is not all; society must be doing something [constructive] about those social conditions that breed crime…If it does little or nothing about those social problems that generate law-breaking, and then goes on to punish the law-breakers, it will be rightly seen as both callous and hypocritical, and thus as lacking the moral standing requisite for punishing offenders in good faith.¹³⁷

In addition to (and in virtue of) producing a structural crisis in the procedural system of state punishment, the widespread assertion of constitutional due process rights among those protesting procedural entrapment would openly expose the moral illegitimacy of the institutional agencies of mass incarceration, which require the compelled forfeiture of constitutional rights of nearly all their targets in order for the system to function.

In elaborating the critical and transformative moral, political and socio-economic work that the strategy of mass plea refusal would and could do, one must also squarely confront its acute risks and disadvantages. By calling upon masses of individual defendants, as Susan Burton put it, ‘to refuse to play the game, to refuse to plea out’, such a movement against mass incarceration would effectively be asking those individuals to risk the severe existential burdens meted out by the unconscionably exorbitant ‘trial penalty’ that has been fashioned by the system’s deliberately disproportional sentencing schemes. It would, as an anonymous reviewer of this article noted, ‘dilute the existential situatedness of many criminal defendants who may have good reasons for pleading guilty’. In real human terms, a mass assertion of constitutional due process rights would call upon conscientious objectors to potentially spend years, even lifetimes, in cages cut off from their communities, for the cause of social and racial justice.

Michelle Alexander gave voice to the very legitimate reluctance such severe existential risks would prompt among even those, such as herself, most committed to ending mass incarceration:

As a mother myself, I don’t think there’s anything I wouldn’t plead guilty to if a prosecutor told me that accepting a plea was the only way to get home to my children…I truly can’t imagine risking life imprisonment, so how can I urge others to take that risk – even if it would send shock waves through a fundamentally immoral and unjust system?¹³⁸

As a parent myself, I strongly identify with Alexander’s hesitancy, which reflects the significant human risks and costs of this grassroots strategy of challenging mass incarceration and its system of procedural entrapment. Nevertheless, when we read (and likely identify with) her words – ‘I don’t think there’s anything I wouldn’t plead guilty to if a prosecutor told me that accepting a plea was the only way to get home to my children’ – I think we also ought to hear the echoes of the words spoken a century ago by the anonymous African American laborer from postbellum Georgia mentioned earlier. When faced with the plea bargain of his day, he claimed, ‘We would have signed anything, just to get away.’ We should also recall the consequence of the coerced consent that he and his contemporaries gave to that executive order of the postbellum racial contract: ‘Really we had made ourselves lifetime slaves, or peons, as the laws called us.’ By continuing to individually consent (on, however, an instrumentally rational basis) to the coercive contract of the plea bargain regime, by continuing to collectively consent to the procedural entrapment of the system of mass incarceration, we are greasing the wheels of the carceral machine that labels those whom it targets as lifetime felons and imposes upon them permanent status-based forms of civil death and disability comparable with those experienced by antebellum slaves and postbellum debt peons and leased convict laborers.¹³⁹

Inspired by Susan Burton, this article conceptualizes procedural entrapment as a contemporary mechanism of racial domination, begins to think through organized mass plea refusal as a viable strategy of resistance, and articulates the connections between these forms of domination and resistance and those of the antebellum and postbellum periods. In tracing these connections, I, like Burton, seek to foster a historical and imaginative way of thinking about contemporary anti-racist struggle against mass incarceration that enables us to see ourselves as acting in concert with the legacy of struggle left to us by Frederick Douglass, Harriet Tubman, Ida B. Wells and Martin Luther King, Jr. They, along with a multitude of other abolitionists and civil rights activists of the past, also faced inestimable odds, severe existential risks and the inevitability of racialized legal violence, and yet they persevered in fashioning radically reconstructive collective projects of racial and social justice.

Galvanized by our connection to this legacy, we ought to allow ourselves to be emboldened by Burton’s incisive observation that, by simply demanding and exercising their constitutional rights to due process, those who are systematically targeted by our carceral state can swiftly throw it into crisis through organized, concerted action. Such action on the part of the procedurally entrapped, who shoulder the most existential risk, would in turn have to be sustained by solidarity efforts outside of prison walls and court halls, by an abolitionist movement that collectively struggled and sacrificed to counterbalance the social, economic and existential costs incurred by those refusing to forfeit their constitutional rights, especially those punitively sentenced on account of their refusal.¹⁴⁰

Creatively reinventing the organized efforts of the civil rights movement to support political prisoners and civil disobedients who acted heroically and at great sacrifice to themselves to advance the cause of racial justice, the movement to abolish the prison industrial complex would have to extend the arc of Burton’s underground railroad from prison gates to courthouses and police precincts. The movement would have to commit to pool and develop resources and raise funds to support the legal defense of those engaged in conscientious plea refusal. It would have to help defendants overcome the unconscionable information deficits they face by supplying them with resources to assist them in understanding the collateral consequences of criminal conviction where the courts fail to do this.¹⁴¹ It would have to commit to materially and socially support the families of those protesting entrapment, and create childcare collectives to refuse to allow protesters’ children to be claimed by the injurious arms of the foster care system.¹⁴² Those eligible would have to up-end trends of diminished adherence to the civic duty of jury service and revive the 19th-century abolitionist understanding of the jury as ‘the People’s last check against oppressive government and arbitrary official power’.¹⁴³ Like abolitionists of the 19th century who used the jury box to resist and nullify immoral and unjust fugitive slave laws, contemporary abolitionists should seriously consider the proposal of Paul Butler, critical race legal scholar and former Washington, DC, federal prosecutor, who argues that jurors should resist the systematic racial injustice of mass incarceration and ‘dismantle the master’s house with the master’s tools’ by exercising their power of jury nullification in the trials of oppressed people charged with non-egregious offenses.¹⁴⁴

People would have to protest in the streets, jails and prisons and coordinate multifarious media and petition campaigns to publicize and publicly support the actions of those engaged in conscientious plea refusal (e.g. by informing citizens of their right to jury nullification), to articulate the political analysis that animates the movement and the goals toward which it strives. Mass political pressure would have to be applied to the legislative and executive branches of government to address the crisis through law enforcement desistence and de-carceral reforms rather than further carceral fortification. The movement could support, pressure and embolden public defenders (e.g., through the American Bar Association’s Standing Committees on Ethics and Professional Responsibility and on Legal Aid and Indigent Defendants) to refuse cases, and demand that the American Bar Association’s Standards of Public Defense Related to Excessive Workloads be upheld to materially enable public defenders to furnish the competent and diligent counsel that the rules of ethical professional conduct require.¹⁴⁵ To diminish the risks of conscientious plea refusal, the mass assertion of constitutional due process rights could also be specifically taken up and organized in a targeted manner among those facing charges in the lower-spectrum of the criminal code and who thus face less severe risks of penalization for exercising their constitutional right to trial.¹⁴⁶

This is only a sampling of the ways that the movement to abolish the prison industrial complex might coordinate the strategy of conscientious plea refusal with other solidarity efforts and modes of resistance to counterbalance, if not completely offset, the asymmetrical existential risks that would be shouldered by those directly resisting procedural entrapment through the assertion of their constitutional rights. Such reflections make clear the extensive and profound genealogical linkages and functional parallels between American slavery and contemporary mass incarceration. They also make clear Burton’s claim that while it would be nice if reasoned argument would suffice to overturn mass incarceration’s brutal system of racial and social control, we have seen that that is just not the case. As Martin Luther King, Jr, argued from a jail cell in 1963, ‘We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.’¹⁴⁷ If the epistemic resistance displayed by the highest courts of the land in the face of reasoned arguments in favor of responsibly restricting present-day prosecutorial powers and their racially unjust outcomes is any indication, Burton is right that civil rights litigation is insufficient to end the procedural entrapment of mass incarceration. As was the case with abolitionist struggles of prior eras, larger risks will have to be taken. Like Burton in 2012 and Martin Luther King, Jr, in 1963, Frederick Douglass famously argued in 1857 that:

The whole history of the progress of human liberty shows that all concessions yet made to her august claims have been born of earnest struggle…Those who profess to favor freedom and yet deprecate agitation are men [sic] who want crops without plowing up the ground…This struggle may be a moral one, or it may be a physical one, and it may be both moral and physical, but it must be a struggle. Power concedes nothing without a demand. It never did and it never will.¹⁴⁸

Those who are currently the targets of mass incarceration and its system of procedural entrapment should not wage this struggle and shoulder these risks alone.

The procedural entrapment of mass incarceration

Abstract

Keywords

Irresponsible power in antebellum America

Prosecuting the postbellum racial contract

Prosecutorial prerogative: Irresponsible power in contemporary America

The procedural entrapment of mass incarceration

The genealogical linkage of contemporary prosecutorial prerogative and the irresponsible power of the antebellum overseer

Sealing the black box of prosecutorial power

Conclusion: ‘Go To Trial: Crash the Justice System’

Footnotes

Notes