The U.S. criminal justice system is horrible in so many ways: We lock up more people worldwide than any other country, our penalties are harsher, our arrest rates many times higher than other democracies, etc. Although plea bargaining is not often a top priority when we consider all the harm done by the system to society, the U.S. is a notable exception in this area. American criminal cases end in a guilty plea in more than 95 per cent of them. This is due largely to plea bargains. Our plea-deal rate is higher than any other country in the globe. My book Pleading Out: How Plea Bargaining Creates a Criminal Class, I argue that the widespread use of plea bargaining is a chief enabler of our criminal legal system’s ills.
It is easy to see. How This country was so involved in plea bargaining that it is now in a bind. Our courts, unlike our common-law cousins in England and Canada, allow prosecutors to use threats, money, or any other tactic they like to ensure a defendant forfeits their right for a trial. The question of Why?It takes more digging to see how we got to this point. The answer lies in the early 19th century efforts to weaken the labor movement.
Scholars trace the origins of American plea bargaining back to Boston in 1830s. The idea of a prosecutor negotiating with a defendant over the type of crime they would face or the sentence they would receive was unheard of before that time. The practice of plea bargaining became a common part of the legal system at an alarming rate once it was established. In Massachusetts, the percentage of criminal cases that ended in guilty pleas rose from 0 to 50 percent by the 1850s. In the 1880s, it was close to 90%. In 50 years, the jury trial — a central feature of democratic governance for millennia — had become practically extinct in New England.
What was the driving force behind plea bargains becoming commonplace in 1830s and 1840s? One thing is that the working-class population exploded following the Industrial Revolution. Boston’s population went up by 50 percent in the 1830s alone, due mostly to European immigrants and migrant laborers from other states. These workers, who lived, ate, and slept in close quarters became more class conscious. New York was the first city to form a federation of labor unions in 1834. Strikes spread across industries more frequently.
The ruling classes in New England used every available institution, including the courts to stop organized labor. Groups of workers were commonly prosecuted under conspiracy statutes for organizing, or for forming “combinations,” as they were called back then.
This tactic was not sustainable in the 1830s. Universal white male suffrage became the norm. This meant that working-class, unlanded men could serve as jurors. It was that time. juries were extraordinarily powerfulBecause they could decide on issues of fact (e.g. did these workers strike?) They could also decide issues of fact (e.g. did these workers strike?) and law (e.g. should striking be illegal?). As one might expect working-class jurors were sympathetic towards defendants who only wanted a raise or better working conditions. The powers-that’be quickly realized they could not crush workers head-on with the criminal laws. They were too many, and they were already questioning whether the existing class hierarchy was legitimate.
By the early 1840s, Boston’s upper crust shifted to subtler methods of using the courts to undermine worker solidarity. They first took away the power from juries. By the end of the 1850s, the Massachusetts legislature had eliminated the jury’s ability to decide issues of law, and the courts were developing long lists of complex rules to limit the evidence jurors could hear.
Second, courts began to look the other way when prosecutors made deals with defendants. This was the beginning of a system that is designed for speed. The speed of the system meant that cases could be resolved without lengthy and expensive trials. The community no longer has to approve or give permission for punishment; instead, informal, lawyer-driven negotiations can resolve the issue.
A little grease might be a good thing for justice. But the rise of plea bargaining meant that instead of charging groups of workers, prosecutors could charge working-class people one by one for a whole host of behaviors falling under broadly worded statutes, like those prohibiting “drunk-and-disorderly” behavior or “vagrancy.” Such prosecutions could (and did) steadily increase without provoking the ire of working-class jurors, because few juries needed to be seated at all. The jury trial was almost extinct by the time women and people with disabilities were allowed to sit on juries. Backroom maneuvering and dealing made it impossible.
The death of the jury trial allowed the public to abandon its role in criminal proceedings. Today, most of us don’t know what happens in a courthouse at all. And most of us scarcely realize that our criminal laws — some of which don’t even require criminal Intent — no longer reflect community norms and mores, but the base desires of special interest groups. This system runs on autopilot because of plea bargaining.
Worse yet, the U.S. has used its sleek, expedient system to create the largest “criminal” class in the history of the world. Nearly one-third of all adultsIn the United States, there is now an arrest record. Studies show that the psychological effects of being labeled a “criminal” are profound. People with a criminal history are less likely than others to be involved in civic life, and more likely to engage in anti-social behavior. Not only does criminalization come with stigma, but it also comes with restrictions on housing and employment, child custody, volunteering, voting, and other forms community participation. Criminal punishment breaks down the loosely bound American coexistence.
Therefore, the plea bargain should not be seen as a way to speed up criminal cases but as part of a centuries-old campaign to undermine working-class solidarity. Plea bargaining must be included in any discussion about the need to end the horrors of our criminal justice system.