Pleading Out: How Plea Bargaining Creates a Permanent Criminal Class
Plea bargaining is a well-known, but poorly understood, feature of the U.S. criminal legal system. Scholars have written scathing critiques of plea bargaining for decades and plea bargaining features in news stories, movies, and TV shows. Despite plea bargaining seeming to be common knowledge, and despite decades of scholarly work on the subject, most lay people, and many lawyers, actually know little about how plea bargaining works. The average non-lawyer does not understand how troubled a process plea bargaining can be, much less that over 90% of criminal convictions are due to plea bargaining. Pleading Out is a book that intends to correct that by reaching the non-scholar audience and explaining what is wrong with the process. The author, Dan Canon, makes it clear that he hopes his book will be a call to action for meaningful change. Canon successfully explains what is wrong with plea bargaining in an accessible way for non-lawyers, but falls short when discussing how to fix this troubled process.
The book is divided into four parts. The first part is an overview of the history of plea bargaining in the United States, focusing on class divisions and how plea bargaining exacerbated and, according to Canon, created a class division all its own (the criminal class). Canon returns time and again to this class-infused view of why plea bargaining developed as it did. Canon discusses how plea bargaining contributed to the criminalization of the early labor movements. In this view, plea bargaining goes beyond efficient court administration and has become a “tool for social control…designed to curtail the rise of the working class by making as many of them into criminals as possible” (p. 35–36). Canon connects the rise of plea bargaining to increasing criminalization. The combination of plea bargaining and new criminal laws “created a permanent criminal class—the largest of its kind in human history” (p. 61). As Canon does throughout the book, these chapters recount stories of individuals who have plead guilty and the circumstances of their cases.
The second and third parts describe the problems with plea bargaining, with a series of heart wrenching and infuriating stories. Many of the stories are familiar, some are new. Not surprisingly, Canon has no shortage of outrageous, enraging, and appalling stories that highlight plea bargaining’s problems. For the reader who is unfamiliar with plea bargaining, these stories do a good job of putting the problems into a human context and encourage the reader to feel the urgency of changing this troubled process.
There are a number of themes in the book. First, as stated above, Canon views plea bargaining through a class lens; he sees it as “a means to perpetuate centuries-old class conflict, a tool for satisfying the appetite of the prison-industrial complex, and a chief enabler of the ills that plague our criminal justice system today” (p. 6). Second, Canon repeatedly criticizes the lack of scrutiny the players in the system, including lawyers and judges, give to plea bargaining. Canon views professionals in the system as largely accepting the excesses of plea bargaining as both normal and necessary for the criminal legal system to function. Canon also wants to start a conversation around plea bargaining that will bring in the general public to help cut through what he sees as the general complacency regarding plea bargaining. Canon says, “[V]irtually no one questions this state of affairs outside of a few esoteric scholarly circles, for nearly fifty years no one has seriously discussed whether plea bargaining is a good idea” (p. 11 ).
Canon correctly points out the concerns around plea bargaining, but as the quote above indicates, he sometimes writes with hyperbolic statements that may help to enrage a lay audience to action but are too sweeping to be accurate. For example, there have been a number of popular culture critiques of plea bargaining, including fairly recently on the John Oliver HBO show, Last Week Tonight. The Podcase Serial also did a deeper dive into how our criminal legal system works during Season Two, which placed plea bargaining front and center. Granted, plea bargaining isn’t featured frequently in popular culture, and crime dramas still leave the impression that most criminal cases go to jury trials. But the excesses of plea bargaining are not going unnoticed or unquestioned. In addition to the programs stated above, plea bargaining has also gotten some mention in progressive prosecutor campaigns (although not as much as I suspect both Canon and I would like). Critiques of plea bargaining have been published in the New York Times and magazines such as The Atlantic. Clearly, more could be done, but, equally clearly, it is not only “esoteric scholarly circles” that criticize plea bargaining.
Canon’s occasional side trips into comparative law are also too limited for a nuanced discussion and deviate from his main points. For example, Canon discusses the use of plea bargaining in other countries, but only other common law countries. One of his broad statements is that “virtually no other country has such a thing as a “trial penalty,” at least not that exists out in the open” (p. 227). There are a number of countries that are not common law legal systems, including Russia, that give standardized reductions in sentences if defendants plead guilty, essentially writing into their criminal procedure codes a trial penalty. But whether other countries do or do not have a trial penalty does not take away from Canon’s central idea that the trial penalty is part of the problem with the U.S. practice of plea bargaining.
Finally, in part four, Canon lays out his views of what can be done to reform plea bargaining. Spoiler alert: Canon’s basic recommendation is to do less plea bargaining, but to couple it with allowing defendants to plead guilty, just without the benefit of a negotiation in advance about what they will receive. Canon discusses the experiences of jurisdictions, such as Alaska, El Paso, and the Bronx, that have banned plea bargaining. He highlights examples of when prosecutors have done better case screening, such as in New Orleans. Better case screening can result in prosecutors filing fewer criminal charges and can also result in fewer overcharged cases (cases that have multiple counts, when one will do, or more serious charges, when a less serious charge is more appropriate given the facts). Canon is clear that bans on plea bargaining have not been smooth and have not previously worked well to make lasting changes.
One challenge, which Canon readily acknowledges, is that plea bargaining is embedded in the culture of criminal legal practice. But he overlooks the fact that virtually every professional practicing law in the United States today has only experienced a system of mass incarceration. Extreme prison terms are a norm. Prison terms for first time offenders are standard. Prison is seen as a natural punishment for crime and rehabilitation is seen, at best, as something that is a goal for the select few who might qualify for a problem-solving court or probation. This culture of mass incarceration is another part of the culture surrounding plea bargaining practices, not to mention sentencing practices of judges. Canon is not critical enough about the kind of sentences judges may give if there is not a plea deal, and he does not comment on what to do if prosecutors continue to overcharge. In these circumstances, if prosecutors are not agreeing to dismiss charges due to a plea deal, defendants would be forced to ‘plead to the sheet’ and many will not want to go to trial, so they may end up in a worse situation than if their lawyers could have negotiated on their behalf.
Canon recognizes that prosecutors hold the power to do better but does not hold them as responsible as he could. Canon completely dismisses a legislative approach to reign in the excesses of plea bargaining and/or to dial back the increased criminalization and the increased penalties we have seen added to criminal codes in previous decades. Canon questions whether there could be bipartisan agreement to make legislative changes. Canon also questions whether legislative top-down solutions would work the way they are intended because of the embedded culture of plea bargaining. Canon is also skeptical of judges, defense lawyers, and prosecutors, with the possible exception of progressive prosecutors, making more meaningful and long-lasting changes. Canon recognizes the problem of inadequate resources for criminal defense and how too many defendants do not get even adequate, much less good, legal assistance. But it is unclear how his proposal to reduce plea bargaining will help to fix that structural problem.
Canon advocates for reducing plea bargaining by 25% and seems to think this would create meaningful overall change and force the players in the system (judges and prosecutors) to do better and give more reasonable sentences and dismiss cases that should be dismissed. But Canon is less clear about how this change would happen and how it would better protect defendants from excessive penalties and some of the same injustices he recounts in his plea bargaining stories. Canon’s analysis does not focus on the fact that most cases going through the criminal legal system are misdemeanors and how these cases are all too often an entry point to the criminal legal system. It is unclear how Canon’s proposal will help with these less serious cases.
Canon gives examples of some changes to the criminal legal system that have resulted from grass roots organizing, and he advocates for grass roots organizing to “cut back” on plea bargaining (p. 272). It is unclear how this recommendation would bring meaningful change on its own. The criminal legal system is complex. Changing one thing can have unintended consequences because there are so many factors at play and it is hard to predict how various players will react to changes. Canon recognizes this complexity and that this one idea would not be a “panacea”; he focuses on this “’bottom-up’ collective action…not because it is a perfect solution, or even because it’s objectively likely to happen, but because it’s the best chance we’ve got” (p. 277).
In the end, Canon wants his book to contribute to the realization that “plea bargaining is not that great” and that “it’s not necessary for a functioning criminal justice system” (p. 281). The first three parts of this book make a compelling argument on both fronts. However, Canon’s admittedly simple solution may fall short of the clarion call for action that he intends.
Cynthia Alkon is a Professor of Law and Director of the Criminal Law, Justice, & Policy Program at Texas A&M University School of Law.