41 Pages Posted: 30 Jan 2014 Last revised: 13 May 2014
Date Written: February 1, 2014
The 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.
Keywords: federal sentencing, capital punishment, drug prosecutions, mass incarceration, institutional racism, implicit bias, critical race theory
Suggested Citation: Suggested Citation
Lynch, Mona, Institutionalizing Bias: The Death Penalty, Federal Drug Prosecutions, and Mechanisms of Disparate Punishment (February 1, 2014). American Journal of Criminal Law, Vol. 41, No. 1, 2014; UC Irvine School of Law Research Paper No. 2014-31. Available at SSRN: https://ssrn.com/abstract=2387145