Dan Canon. Pleading Out: How Plea Bargaining Creates a Permanent Criminal Class. Basic Books. 2022. 324 pages.
“America’s story, indeed the story of the law itself, is not one of a great quest for quality and fairness. To the contrary, it can be read as one of a few people at the top trying to figure out new, inventive ways to split up the great mass of people down at the bottom before they all get together with torches and pitch-forks, Jacobin-style.”
“The end goal of the system is to disorganize the lower strata.”
“The thing is, when you trace the reasons for the very existence of that system in the first place, you invariably end up at slavery, white supremacy, and naked class warfare. Preserving as much of you can of a system like that, even against a tide of social and cultural changes, is a problematic goal.”
“Nothing crumbles the loosely bound cake of American coexistence like criminal punishment.”
Could it be any clearer where this is going?
Back in 2020, in the summer of racial justice, the cry arose for abolition of police, based on the awful history of policing and the abuses inherent within. That’s still a good goal.
But perhaps a concomitant goal — and more easily attainable — is to remove or dramatically reduce plea-bargaining, thus removing an enormous share of the abusive power of policing, and not incidentally shifting the role of prosecutors and judges. And perhaps bringing back juries, which have, despite common perception, fallen out of favor.
Canon is a civil right lawyer and law professor and knows of what he speaks.
The book begins with history — a review of the British roots of American jurisprudence — and then moves into a maddening survey of the state of things: the horrid things accused folks endure, the high stakes for the accused in plea bargaining, and the retaliation from the “system” for insisting on a jury trial or refusing to make a deal. Nearly 100 percent of charges brought against people are “pleaded out” to satisfy a) a beast of a court system that believes it couldn’t possibly deal with the backlog should folks all want jury trials; b) the need of police and prosecutors to meet quotas, by which they are judged for promotions, budget increases or reelections; c) the individuals in the system who are seduced by the lust for power over other individuals in the system.
And be clear, Canon advises: we are, all of us, guilty. Our criminal code has metastasized into something completely disproportionate to the needs of the populace. Whether or not we are penalized for this constant law-breaking depends on the moods, ego and quota sheets of police, first, and prosecutors second, as well as our race and relative wealth.
Beginning with Ronald Reagan, US presidents began to appoint judges who look at everything through the lens of economic theory.
Plea-bargaining is indisputably efficient. But it has created a permanent criminal class in the country, which also serves the purposes of control. Once someone is in the system, they are never out. Ever.
If you’ve had a feeling for a while that something is wrong, but you aren’t sure what…
If you’ve known someone, or yourself been sucked into the system, and wonder if you really deserved it…
If you’ve heard stories and thought “that must be an exception” or “that can’t be right…”
let Professor Canon teach you.
A strength of this book is the hope it offers in the stories of prosecutors who did it differently, and the realization that there is a new crop of prosecutors who see the deficiencies and are making changes. Canon offers options for organizing and agitating that may be able to turn the tide. He also discusses the difference in “justice” for wealthy and working class, the minimal effectiveness of “innocence projects,” and the dire shortages of public defenders. As a bonus, he makes a wonderful case for jury duty as a civics lesson.
I found a shortcoming in his lack of discussion of the ways that mass incarceration feeds the capitalist beast. Though he mentions early that plea-bargaining is “a tool for satisfying the appetite of the prison-industrial complex” he doesn’t address this in his call for reform — specifically prisons as the foundation of the economy in small towns or rural areas, usually built as political favors; services provided to prison populations at exponentially inflated profits; free or cheap labor for corporations we love (ATT, Target, and so very many others), plus private prisons with whom the US or individual states have contracts based on population quotas which must be met. There is also a political reality that prison populations displace and disrupt whole communities, transforming eligible voters from urban poor or black/brown communities to ineligible voters artificially boosting the population of overwhelmingly white communities and changing the voting patterns and representation.
When I mentioned all this, my wife said: “Can you imagine how much longer this book would have been, though?” Fair enough.
Part of the overwhelming task, then, is to imagine ways and find the political will to separate jurisprudence from capitalism. And let’s be honest: separating anything from capitalism is anathema to the American way.
“Our justice system is not good at producing justice. That’s not what it was built for. However, it is good at producing criminals.”
If you’ve read anything at all on American mass incarceration, this is a good next thing to broaden your understanding and move you to action. If you’ve read nothing at all, it’s a good place to start — a place to light a fire under the unfairness of it all.