Book Review: Pleading Out

I was only a few pages in when Pleading Out: How Plea Bargaining Creates a Permanent Criminal Class made me angry. It wasn’t because of how Dan Canon wrote. It was because of what he wrote. In Bordenkircher v. Hayes, the Supreme Court held that prosecutors could, in effect, punish a defendant for asserting their right to a trial. Potter Stewart wrote that this was part of “any legitimate system which tolerates and encourages the negotiation of pleas.”

While legal systems in the United States do tolerate and encourage plea deals, a reasonable person can question the legitimacy of the system. That Paul Hayes received a life sentence for forging a $88.30 check calls the legitimacy of the system into question.

Canon spends the rest of the book making the case that the plea bargain system as practiced in the United States is not legitimate. It does not serve the interests of justice, but of power. “The American legal system,” he writes, “was designed by people in power as a tool to keep them in power whatever the cost.”

American exceptionalism

Plea bargains are rare in other countries. In the United States, 97% of convictions come from guilty pleas. Most of those are bargained. Why is that? Prior to the 1830s, plea bargains were rare in America. Attitudes started shifting when labor solidarity developed in the early industrial factories. Plea bargaining hid prosecution from the public eye, preventing scrutiny and revolt.

The expansion of federal crimes after Prohibition led to a need to process cases more efficiently. “What we have inherited is an amoral system of criminal proceedings; it cannot be called criminal justice. Expediency, not fairness, is the principal concern.”

It’s no coincidence that the United States has the highest incarceration rate and also the highest plea bargain rate. As Michelle Alexander explores in greater depth in The New Jim Crow, the legal system creates a permanent criminal underclass that has long-lasting effects.

Liberty and justice for some

The high volume of cases means that lawyers can’t keep up. Prosecutors can’t screen cases to drop the obviously bad ones. Worse, defense attorneys can’t mount vigorous defenses. Canon notes that in 15% of exonerations, the defendant gave a false confession. Thousands of innocent people are sitting in jail today because the police or prosecutors railroaded them into confessing to a crime they didn’t commit.

Because plea bargains are secretive, there’s no accountability. Wealthy defendants can work themselves into a sweet deal. Poor and middle-class defendants have to take what the prosecution offers. If they dare insist on a trial, they face persecution, not prosecution. Ask Paul Hayes. This does not benefit society.

So what do we do?

It doesn’t have to be this way. Canon writes about the decade when Alaska eliminated plea bargaining. The system adjusted. Prosecutors dropped cases they couldn’t—or shouldn’t—prove. Police got more careful with their investigations, knowing they’d actually be accountable. It wasn’t perfect, but it was an improvement.

Our current system doesn’t have to be our system forever. But it won’t change on it’s own. The first step is an informed populace. That’s why I’d recommend Pleading Out to anyone who cares about justice.

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