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Excerpted From: Mona Lynch, Institutionalizing Bias: the Death Penalty, Federal Drug Prosecutions, and Mechanisms of Disparate Punishment, 41 American Journal of Criminal Law 91 (Winter 2013) (247 Footnotes) (Full Document)


MonaLynchThe empirical study of capital punishment in the “modern” era has been largely decoupled from scholarship addressing the corollary late 20th century noncapital punitive developments, such as the rise of mass incarceration. Consequently, research that has examined the problem of racial disparities in the administration of the death penalty and research on the proportional growth of minorities in American correctional populations have advanced on parallel tracks, rarely intersecting. In light of this symposium's effort to strengthen the linkages between the death penalty and mass incarceration, this article examines two seemingly distinct cases of racially disparate criminal justice practices--the trial courts' processing of contemporary capital cases and federal drug trafficking cases--to illustrate the institutionalized mechanisms that produce racial inequalities in both mass incarceration and capital punishment. I advance a meso-level, social-psychological theory on the production of institutional racism that also aims to integrate contested lines of thought about the mechanisms of bias and discrimination. To accomplish these ends, I specifically focus on three problem areas in the structure and operation of contemporary American criminal justice: 1) the codification of inequality in how crimes and criminal culpability are defined and how sentencing rules are structured; 2) the distribution, by both stage and actor, of discretionary decision-making power; and 3) the mechanisms for relief from the harshest potential punishments.

While federal drug trafficking cases comprise only a small proportion of the overall number of felony drug cases in the U.S., they represent the “iconic case” of the American war on drugs by virtue of the strikingly long sentences meted out and the vast resources spent by the federal government on seeking such convictions. Similarly, while the death penalty is sought and imposed in only a small fraction of all eligible homicide cases, the uniquely severe nature of this punishment, coupled with the complex jurisprudence that governs its implementation, makes capital punishment a qualitatively important object of study. My selection of these two relatively specialized cases, however, should not be taken to mean that these are the biggest challenges to humane and racially-equitable systems of punishment. The problematic processes that I highlight here are at least as serious, if not more so, in the more mundane kinds of criminal cases whose punitive outcomes have cumulatively resulted in contemporary mass incarceration.

Part II of this article will provide a short overview of the two sites of inquiry: the contemporary federal criminal justice system since the implementation of the Federal Sentencing Guidelines in 1987 (and the particularities of drug cases within that system); and the modern, post-Furman American death-penalty system.

Part III will briefly lay out the dominant strands of contemporary social-scientific and legal theory of racial bias and its manifestation in institutional settings.

Part IV will put forth a model of institutional racism that integrates sociological, psychological, and legal approaches in an attempt to reconcile the divide between the individual-level, typically cognitively-based understandings of racial bias, and the social-structural understandings derived from sociology. This integrated theory will also aim to expand existing understandings by identifying key places within the criminal justice system that contribute to racial bias.

In Part V, I use examples from the worlds of capital punishment and the federal criminal courts to illustrate the three mechanisms that have especially contributed to racially-problematic outcomes.

I conclude by discussing the implications of this model for remediation.

. . .

The captivation with “implicit bias” as a framework for explaining discriminatory outcomes in social and legal settings harkens and revives classic debates in psychology. As the sub-discipline of social psychology began to powerfully demonstrate through a number of ingenious experiments in the mid-20th century, social context is often a better predictor of behavior than individual trait and attitude differences. An early icon of this empirical insight is Stanley Milgram. After conducting twenty-one versions of his obedience study, with a number of different configurations and types of subjects, Milgram concluded the following:

The disposition a person brings to the experiment is probably less important a cause of his behavior than most assume. The social psychology of this century reveals a major lesson: often it is not so much the kind of person a man is as the kind of situation in which he finds himself that determines how he will act.

Similarly, the Stanford Prison Experiment researchers concluded that the highly aberrant behavior that emerged among the subjects in their study was “not the product of an environment created by combining a collection of deviant personalities, but rather the result of an intrinsically pathological situation which could distort and rechannel the behaviour [sic] of essentially normal individuals.” The researchers further explained that “[t]he abnormality . . . resided in the psychological nature of the situation and not in those who passed through it.” By acknowledging the power of contexts in conceptualizations of problematic behavior--like racial discrimination--we not only assent to a more empirically supportable understanding, we also open up the possibilities for remediation in expansive and potentially impactful ways.

The model I have attempted to delineate here takes as a given that different actors within institutions possess varying levels of a range of individual traits, attitudes, and cognitive predispositions, including implicit biases. But that is only the starting point. As both a moral and legal matter, to end there would leave us with little to do besides wring our hands about the evils of human nature. Indeed, it is hard to imagine a remediation scheme that authorizes measuring the implicit cognitions of criminal justice actors for the purposes of reducing biased outcomes, much less one that authorizes screening of those measures for hiring, selecting juries, assigning tasks, or dismissing from duties. Even if such practices passed legal muster, their utility would be quite limited in scope. On the other hand, it is easy to imagine all kinds of remediation strategies that reform decision-making parameters and contexts once we develop a clear understanding of where and how biased actions are produced. The above discussion only begins that task, and only for two relatively specialized areas of criminal justice. There remains much more to be done, particularly to combat the vast expanse of injustices that are produced in run-of-the mill, mundane criminal matters in state courts across the country.

Unfortunately, though, many of the potential remedies that would most directly address the problems I have identified here have little precedential support in existing case law, making the jurisprudential road to combatting systemic discrimination in criminal systems a difficult one. McCleskey still casts a long, ominous shadow impeding racial justice in the criminal context, its reach shutting down inquiries into the most egregious example of discriminatory practices in the 20th century--federal crack prosecutions. To be sure, there have been some promising developments aimed at tempering the American punitive binge of the late 20th century emerging from the courts, state and federal law-makers, and executive branch actors that at least indirectly have the potential to relieve some racial injustice in our criminal and capital systems, even if only indirectly. But there remains considerable reticence in the courts, legislatures, and the public arena to confront, head-on, the continuing racial harms produced in our criminal and capital systems of justice. As Ian Haney López has forcefully argued, the first step to overcome this reticence is to re-center racism, especially its structural manifestation, as a problem in the public, political, and legal sphere:

In the decades to come we will look back on McCleskey as a stain on the reputation of the Supreme Court, and on racialized mass incarceration at the turn of the twenty-first century as a national shame. But we will only get there if, today, we recognize and protest against structural racism.

Professor of Criminology, Law & Society, University of California, Irvine.