Editor’s Note: The following is an excerpt from Dan Canon’s new book,”Pleading Out: How Plea Bargaining Creates a Permanent Criminal Class.” which is out on March 8. There are also three events for the book: an online event on at 8 p.m. Tuesday, March 8 via Left Bank Books; an in-person event at the main location of the Louisville Free Public Library at 7 p.m. on Thursday, March 10; and in-person events at Pints & Union at 2 p.m. on Saturday, March 12.
If you’ve spent time in the seedier parts of the internet, you might have heard of “Rule 34.” Rule 34 is shorthand for the idea that if you can imagine something, someone has created pornography that features that thing, be it an object, a historical figure, an abstract concept, rabies, houseplants, the Indy 500: anything. There ought to be a similar rule for the American criminal justice system. In writing this book, I discovered that anything bad I could think of, no matter how frightening or outlandish, is something that has already happened. “Let’s see,” I thought one night after my third cup of coffee, “I wonder if anyone has ever been arrested for a law that doesn’t exist.” Yep. “Wild! Wonder if anyone has agreed to be physically castrated as part of a plea deal.” Sure enough. “Holy cats! Well, I wonder if a cop ever framed all the Black people in an entire town. . . .”
In a system like ours, such horror stories are easy to come by. They are generated everywhere, all the time. As an American lawyer, I have a backstage pass to the blood, guts and gore of it all. I’ve seen cops lock people up for years without trial, just to get them to plead guilty to something. I’ve seen innocent people pressed into pleading guilty by overworked defense attorneys. I’ve seen defendants describe details of things they couldn’t possibly have done to judges who knew they were lying but let them go to prison for it anyway. I’ve seen good people get thrown in cages for the most minor mistakes imaginable, cages that they never really get out of, even after they serve their time.
If you don’t have a law license, you probably don’t get to see the inner workings of the bizarre contraption that doles out what we loosely refer to as “justice.” Paradoxically, if you are in the courthouse every day, you probably don’t think much about the injustices you see because you see so many of them. Shortly after law school, most lawyers learn to accept the haphazard tinkering we do with the rights and liberties of our fellow citizens. And once we learn to accept those realities — even those that would repulse most nonlawyers — it isn’t that hard to normalize them or even to believe that justice couldn’t possibly be dispensed in any other way. In other words, the horror stories don’t look horrible to us. They look quite ordinary.
Among these everyday monstrosities is the practice of plea bargaining. It’s a quotidian injustice that most of the public doesn’t know or care much about. Legal professionals, on the other hand, are steeped in it. For as long as any of us can remember, we have been taught that plea bargaining is the way to manage crime, so we don’t question it. Some judges and lawyers, unable to imagine any reality other than our current one, believe that this is the only way our system has ever functioned. The common refrain heard from legal professionals is that a reduction in plea bargaining would “crash the system”—that is, any change would create a vast swamp of cases from which the criminal courts might never escape. As someone who has had the honor of representing defendants at just about every stage of criminal proceedings, I myself long believed that plea bargaining was a natural, necessary, and beneficial part of our justice system. But time, research, and years of speaking for people trying to undo the guilty pleas they entered have all changed my mind.
This book will argue that despite its nearly universal acceptance in the United States, the practice of plea bargaining is not natural, necessary, or beneficial. In fact, no other country on Earth relies on plea bargaining to the extent that the United States does, and it’s no coincidence that so many legal systems function much better than ours. Some U.S. jurisdictions have also experimented with ending plea bargaining, with surprising results. This book will look at those examples to expose plea bargaining for what it really is: a means to perpetuate centuries-old class conflict, a tool for satisfying the insatiable appetite of the prison-industrial complex, and a chief enabler of the ills that plague our criminal justice system today.
Dan Canon is a civil rights lawyer and law professor. His book “Pleading Out: How Plea Bargaining Creates a Permanent Criminal Class” is available for preorder wherever you get your books.