Incarceration Nation

Plea Bargaining is a Travesty

By Molly Shah

Like many former lawyers, I remember representing a client whose case embodied such a gross miscarriage of justice that I now use it as an example to explain the unfairness of the law to others. My client, whom I’ll call Bobby, was an elderly man with a recent traumatic brain injury that had left him disabled and unable to find stable housing. I was working with him to secure a place in assisted housing and was in contact with him on an almost daily basis. At some point, though, for about a week, he vanished—no notice, no clue regarding his whereabouts. He just disappeared.

When Bobby finally arrived back in my office, he told me that he had been arrested. He had been robbed, and during the robbery his prescription heart medication was taken. The robbers, presumably after discovering it was not a drug with street value, threw his prescription onto the street in front of him. A witness to the attack had called the police, but when they arrived the robbers were long gone. Bobby, however, was still at the scene trying to pick up his medicine from the ground. Bobby was arrested by the officers for possession of prescription medicine outside of a proper container.

Since the non-profit organization that I worked for couldn’t handle criminal cases, Bobby was assigned a public defender. He sat in jail for a few days before meeting with his lawyer, who explained that if Bobby pled guilty, he would be placed on probation for a year and the charge would be dropped at the end of that time. Bobby, who wanted to leave jail as soon as possible, agreed to this and thought that the matter was resolved.

As Bobby told me this story, I immediately began to worry about his housing situation. The assisted housing facility would not allow people who were on probation to reside there. After several calls with his public defender, I realized that there was not much that could be done. Bobby, after all, had admitted his guilt in front of a judge and had waived any rights he had to appeal. So, he had to wait a year, living in substandard housing, before he would be eligible for the assistance he desperately needed, all because he had made his guilty plea without understanding the full consequences.

“Defendants don’t know what’s what,” said Dan Canon, author of the new book Pleading Out: How Plea Bargaining Creates a Permanent Criminal Class, when discussing Bobby’s situation with me. “You take a poor or working-class person that gets swept into the criminal justice system and is accused of a felony or something like that and the defense attorney is like, ‘You need to plea…’ and they can’t weigh the strengths and weaknesses of their case—they can’t tell what’s a good deal and what’s a bad deal.”

Canon, a civil rights attorney, law professor at the University of Louisville, and one of the attorneys who represented plaintiffs in the Obergefell v. Hodges case that legalized gay marriage in the United States, has seen many cases like Bobby’s that inspired him to write about the evils of plea bargaining. “I do a lot of post-conviction work,” said Canon. “When you are doing post-conviction stuff, you see where the system has really failed people in one way or another, guilty people, or innocent people. I’ve counseled lots of people in post-conviction cases that were just sort of frog-marched into a plea bargain because that’s what they were supposed to do.”

Ninety-seven percent of criminal convictions in America are the result of a guilty plea, with the vast majority of those pleas resulting from plea bargaining. And yet, the fact that plea bargaining is the primary mechanism for processing charges in the U.S. criminal justice system has not received much discussion in ongoing public debates about criminal justice reform.

“There hasn’t been a serious public conversation about plea bargaining and what it’s doing to the criminal justice system, and that is because we have just gotten so used to it,” said Canon. After the Bordenkircher v. Hayes case in 1978, which allows prosecutors to punish a defendant for refusing to take a plea, “you’ve got the academy at that time just laying down its pens and saying, ‘That’s the way it is… let’s just adjust to this new reality.’”

The systemic overreliance on plea bargaining, Canon explains, is a uniquely American way of dispensing justice. “It seems perfectly natural to us, and yet no place else in the world that I know of tolerates the kind of discretion that we give to our prosecutors in trying to get somebody to give up their right to go to trial,” said Canon.

In the book, Canon further argues that the use of plea bargaining is essential to the repression of working-class solidarity in America, and he does so by tracing its use to the start of the industrial revolution in Boston. “You’ve got people living on top of each other in these concentrated environments for, really, the first time,” said Canon, explaining how the more trial-focused criminal justice system switched to one that ran primarily on plea bargains. “[Workers] are developing class consciousness and starting to talk to each other like, ‘Hey, this is bullshit. Why do we have to do this?’ And that became dangerous to the ruling classes.”

Business and political elites, needing to quash any sign of radicalizing worker consciousness or solidarity, started exerting their influence to turn a justice system that was primarily based on trials or guilty pleas offered with no pre-negotiation into a justice system based almost entirely on plea bargaining. Plea bargaining is a much more effective and callously efficient means of dispensing with criminal cases, and it allows for a massive increase in the number of cases that can be processed—an increase that has never stopped. This vicious vortex has sucked more and more people into an ever-expanding class of criminals.

The creation of this criminal class was an essential assault on working people and working-class solidarity in a long-running class war, Canon argues. “There is this notion in our brains of the criminal class and what criminals look like and what they do; and you don’t work with them, you don’t collaborate with them, you don’t let your kids date them,” said Canon. “There’s a stigma attached to that label, and that stigma is very effective at preventing solidarity. And it’s one thing to apply that label to a small percentage of society, but when you’ve got a full one-third of the adult population in the United States that has some sort of a criminal record… Nothing really crumbles the cookie of solidarity like a criminal conviction.”

Plea bargaining, Canon argues, is the perfect tool for ensuring that many people become part of this criminal (or criminalized) class, because all professionals in the justice system benefit from its use. Because almost every case is resolved prior to trial, Canon explains, police officers can raise their solved crime statistics by overcharging defendants, regardless of how well those charges would hold up at trial. Prosecutors can point to high rates of convictions by offering plea deals designed to ensure that defendants plead guilty, lest they face much more dire consequences at trial. Defense attorneys can present a plea to their client as a good deal that will help them avoid larger charges or more time in jail. Judges are able to have fast dockets in which their main role is merely signing off on pleas that were already agreed to.

“It is the sort of mass-produced coerced confession. We’re really outraged [when police] put a kid in a room under the hot lights and threaten to beat him up with a phone book or whatever and he says, ‘I did it, I did it, just let me go,’ and that’s outrageous,” said Canon. “But that’s exactly what the system is doing to thousands of people every day. They are just doing it in this sort of dry, procedural, legitimized fashion.”

This use of pleas does not ensure that guilty people are more likely to be punished. Canon points to the fact that 75 percent of the people on death row are there because they did not accept a plea to lesser charges. “Not only are you less likely to take a plea [if you’re innocent] but you’re more likely to get hit with the death penalty,” said Canon. “It makes sense that if you’re innocent you’re less likely to take a plea… but I think the shocking thing is: You’re more likely to get a prosecutor seeking the death penalty in your case because you don’t take the plea, because you’re innocent.”

Canon points out that this plea process also fails to serve crime victims any better than the trial-based system. “If you accept that expedience is the fundamental guiding principle for the [whole system], then the victim and the victim’s wishes just sort of become an annoyance that everyone needs to just speed through because the victim is going to slow down the process,” he said.

Canon thinks that his book lays out an argument that while plea bargaining is currently accepted as an inevitability in the American justice system, it does not need to be. We are capable, he argues, of creating a more just system. “If you look at the roots of the system, a lot has changed in America over the last 200 years and not a lot about the justice system has changed,” said Canon. “If you look from the 19th century until now, what was the big change, what made the shift from the 19th century to now that was this earth shattering egalitarian shift in the criminal justice system in the United States. I can’t find it. I don’t know what it is.”

The Real News Network, March 9, 2022