When we speak of criminal justice reform, the biggest enabler of systematic problems must be addressed: plea bargaining. Roughly 97% of criminal convictions are a result of guilty pleas – the vast majority by plea bargain – which is a sharp contrast to the prevalence of jury trials depicted in TV and film that dominate our popular imagination. Instead, in pursuit of “justice,” our system funnels lawyers, judges, and defendants toward the unnecessary option of reaching life-altering deals without trial. How did we get to this point, and what repercussions does this insidious pipeline of felonry have for our society as a whole?
Civil rights lawyer and professor Dan Canon examines this punishing aspect of our system in PLEADING OUT: How Plea Bargaining Creates a Permanent Criminal Class (Basic Books; March 8, 2022) by looking at the development of plea bargaining in the United States. From its sudden rise in practice in the 1830s as a tool both to expedite the legal process and to foment competition among the laboring classes, to the present-day where it has become standard practice in courts across the country, plea bargaining has persisted in doing the most harm to poor and minority communities. He discusses these in four topical areas: policing, prosecution, criminal defense, and mass incarceration, showing how each contributes to the cycle that keeps us all complacent in the perpetuation of this caste system.
Except for those present daily in court, much of these workings are hidden to us. Thousands of lives are changed every week with dockets packed full of defendants, while we distance ourselves morally and legislatively from the growing number of convicts and rights surrendered in these deals. Canon’s solution to these problems is not further academic debate, but rather action on the part of grassroots organizers and everyday citizens. With simple, localized action focused on the impact to our communities, we can generate institutional support to forge the path forward. For decades, the inequalities of America’s incarceration rate have been scrutinized on the national and global stages, and this book takes aim at the greatest promoter of American criminality. There is hope, but we need an immediate change to our thinking.
Dan Canon is a civil rights lawyer and a law professor at the University of Louisville in Kentucky. In his practice, he has served as counsel for plaintiffs in the US Supreme Court case Obergefell v. Hodges, which brought marriage equality to all fifty states, and in a number of other high-profile cases. He lives in southern Indiana.