Book Review: “Pleading Out: How Plea Bargaining Creates a Permanent Criminal Class”

By Bill Littlefield

Dan Canon provides not only the statistics but powerful stories to demonstrate the extent to which plea bargaining has bankrupted the justice system.

Pleading Out: How Plea Bargaining Creates a Permanent Criminal Class by Dan Canon. Basic Books, 324 pages.

Perhaps the most dramatic statistic in Pleading Out is that 97% of criminal cases in this country don’t go to trial. They are dealt with via plea bargains.

The United States leads the league in that regard, just as we lead the industrialized nations in charging people with crimes and locking people up in jails and prisons.

One of the most revered principles of our alleged justice system has it that people accused of a crime have a right to present a defense to a jury of their peers. But as Canon points out, that’s a happy myth. The 97% of cases are unsullied by a jury, presided over by prosecutors who are unchallenged.

The argument in favor of plea bargains is that without them, the courts would immediately become hopelessly clogged.

Canon points out that in the rare circumstances where progressive district attorneys or judges have managed to discourage or even eliminate plea-bargaining, at least for a time, the anticipated breakdown of the system has not occurred. He also demonstrates various advantages that would come with the significant reduction of plea bargains: district attorneys will stop taking on cases that are so weak they’d be unlikely to win in court; police officers are less likely to lie if they know there’s an excellent chance they’ll have to testify under oath, which they never have to do now since most of the arrests they make lead to plea bargains rather than trials; prosecutors are prevented from threatening defendants with more charges and more severe sentences if those defendants don’t take the “bargains” the prosecutors offer; many more people get the opportunity to serve as jurors, thereby gaining experience in the system and a greater sense of responsibility for making it work fairly.

What’s striking about Pleading Out is that Dan Canon doesn’t just condemn a system which, as he demonstrates, is not only dramatically tilted in favor of the state but also racist, spectacularly inconsistent, and awash in corruption. Canon also provides a clear sense of how it’s happened that plea-bargaining has become the go-to response for those charged with enforcing the law and handing out prison sentences in this country.

It’s no coincidence that the rise of organized labor, the rise of Prohibition, and the advent of plea bargaining all happened at the same time. From the 1830’s on, the justice system’s rule makers became preoccupied with turning large swaths of the working class into criminals.

When this nation began, all the control was in the hands of white landowners. Canon asserts that as more cheap labor was required and the number of people who were neither white nor landowners increased to fill the need, it became necessary in the minds of the white landowners and their progeny, more and more outnumbered, to create an underclass in order to maintain the control they assumed was their birthright, democracy be damned. “The goal is now as it ever was: prevent the masses from meddling in the affairs of state.” So those in charge passed a lot of laws and arrested a lot of poor people for breaking them. No underclass like the criminal class, right? And when that process put pressure on the courts, plea-bargaining began to take the place of trials. The advantage from the outset was that whatever those running the system did, they did it behind closed doors. No potentially pesky juries to muck things up with questions and acquittals. If anybody complained, it was the criminals. Who was going to believe them?

Like a lot of people who have written critiques of the justice system, Canon argues convincingly that the pursuit of justice is rarely the point. The police are expected to make lots of arrests. Sometimes they have quotas. The prosecutors are expected to pile up convictions. Sometimes they have quotas, and sometimes the funding of their offices is dependent on meeting those quotas. If they aren’t convicting as many people this year as they did last year, why should they get more money for attorneys, investigators, and staff?

Everybody is expected to get the criminals processed and put away as quickly as possible. Reasonably quick conviction, not justice, is the goal, and plea bargaining is a dandy tool for achieving a quick conviction. As Canon puts is, “the job is: get the case over with…the system is an entity with its own demands.” In service to those demands, prosecutors and defense attorneys often spend as little as half an hour “explaining” to folks accused of a crime that whether they did it or not, it’s in their best interest to take the plea, swallow hard, and consider themselves fortunate, since who knows what might happen if they insist on a trial, given that an angry prosecutor might pile on a couple of additional charges and pursue a harsher sentence?

Canon provides not only the statistics but powerful stories to demonstrate the extent to which plea bargaining has bankrupted the justice system and, in some cases, led people innocent of the crimes with which they’ve been charged to accept a plea bargain and incarceration because prosecutors have promised to crush them if they insist in a trial.

Dan Canon is a civil rights lawyer and law professor at the University of Louisville with considerable experience in the legal system he characterizes as “a wounded beast longing to be put out its misery, a thing to be ridiculed or pitied.” But in the final chapter of Pleading Out, he suggests a number of ways organized groups of people – unions, formerly incarcerated men and women, churches, and others might successfully bring about change in that system by educating the public about how the system operates.  Canon has little confidence that such change will come from local, state, or federal officials without pressure from below, since officials at all levels are likely to avoid reform efforts for fear of being labeled soft on crime. He’s also dubious about the willingness of attorneys to work for reform, since they’ve been operating within the system long enough to be comfortable in it or to despair that it can be changed. Still, Canon characterizes himself as “maintaining a certain degree of optimism…If I squint just a bit, I can see hope, dressed in rags, riding a decrepit white donkey over the horizon.”

Bill Littlefield, late the host of NPR’s “Only A Game,” has worked with the Emerson Prison Initiative since 2018. His most recent novel is Mercy (Black Rose Writing, 2022)

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