The U.S. criminal legal system is racist. By now, this proposition is so well established that it’s hard to believe anyone disagrees with it. Mass incarceration shifted the prison demographic from more than 70 percent white to nearly 70 percent Black and Latinx by 1989. In certain areas of the South, people of color are nearly four times more likely to be arrested for marijuana than whites. According to some studies, Black people nationwide are three times more likely than whites to have been charged with a felony and five times more likely to get locked up. As of 2022, Despite being just over 13 percent of the overall population, Black people make up 38 percent of the country’s incarcerated population — and that number appears to have increased over the last decade.
Despite such stark statistics, there is no shortage of commentators who steadfastly refuse to see what’s right in front of them. As populations of people of color surged in U.S. prisons, scholars rushed to assure the public that there was “No Racism in the Justice System.” Even as Breonna Taylor was shot and killed in her own home based on a bogus search warrant, and George Floyd was murdered in full view of the public, conservative pundits furiously penned op-eds about “The Myth of Systemic Police Racism.” Visit any comment thread on a local news article to see what the general public thinks, and it’s always some version of the same old trope: Be a good citizen, do whatever the nice officer says and you’ll be fine.
But individual choices and behaviors cannot override a bad system, no matter how “good” the citizen. What’s wrong with the system itself? The simplest answer to this question is: volume. Take arrest rates as but one example. In 2019, British law enforcement arrested about 1,200 out of every 100,000 people. In Australia, it was about 1,600. In the United States, the number was more than 3,000. By nearly any criminal justice metric — be it arrest, conviction or incarceration rates — the U.S. is bigger (and worse) than any other civilization in the history of the world.
The only true explanation for this anomaly is that the mechanisms of the U.S. state have artificially created an abundance of so-called criminals. In my book, Pleading Out: How Plea Bargaining Creates a Permanent Criminal Class, I argue that the state’s chief criminal-creating mechanism is the plea bargain. The U.S. is unique in that more than 95 percent of all criminal cases end in a plea bargain. No other country comes anywhere close. Our uniqueness in plea bargaining has led us to uniquely bad outcomes. We couldn’t have gotten these astronomical numbers of system-involved people without a method of getting lots of convictions quickly, and that’s what the plea bargain is.
Shameka Parrish-Wright, a bail reform activist and the director of VOCAL-KY, an organization that provides support to low-income people in the criminal legal system, explained: “While doing bail reform work … I ran into so many people right before they were about to decide on taking a plea deal…. I remember working with public defenders and other defense attorneys to pay bails and get people out before accepting terrible plea deals. Plea deals build prisons and keep people incarcerated. Plea deals also feed the probation and parole system, which needs a complete overhaul.”
But why should plea bargaining lead to racist outcomes? This answer requires a little more parsing. Because of the prevalence of plea bargaining, police know that virtually any arrest they make will end in a conviction. This alone can lead to racially unequal outcomes if you’ve got a racist cop who is only interested in arresting people of color. Since nearly every arrest is justified by its inevitable conclusion, i.e. a plea bargain and conviction, an officer’s motives are almost never meaningfully questioned in court or anywhere else.
The problem is more complicated than that, though. Because their performance is often measured in number of arrests, there is little incentive for any officer to exercise much on-the-job caution. If a cop is told to arrest as many people as possible every day, they will likely start looking in the poorest part of town. That’s not to say that poor people commit more crime than their suburban counterparts — they don’t. But the arrestees harvested from the poorest communities are the easiest prey for officers who need to meet quotas because once they are sucked into the system, they often must plead guilty to something or face even worse consequences than the conviction itself. Think of it this way: A cop would more likely arrest someone who is likely to take a deal and get convicted quickly, rather than someone with the means to post bail, prolong the process and hire private lawyers to put the officer’s behavior under a microscope.
Many of the poorer communities in the U.S., especially in urban centers, are populated by people of color. This is thanks in large part to “redlining” practices which relegated Black people and other people of color into the places that white people didn’t want to live. “Often, people of color who reside in under-resourced communities do not have the means to hire a private attorney that will fight for a better outcome,” explained Melba Pearson, a former prosecutor and civil rights attorney who specializes in policy. “Often, private attorneys have more investigators at their disposal, will provide broader mitigation for a judge to consider and can provide a more robust defense than a public defender who has 2 – 3 times the number of cases…. A public defender may encourage their client to plea for fear of a harsher sentence at trial, or a lack of resources to be able to investigate the case with a fine-tooth comb despite the possibility of an acquittal.”
Thus, while anyone of any race can be arrested at any time for anything (or for nothing at all), the target on your back becomes bigger if you’re poor, and bigger still if you’re poor and Black. An officer need not be a member of the Aryan Brotherhood to arrest a disproportionate number of people of color; they need only follow a simple order to maximize the number of arrests they make.
CalvinJohn Smiley, professor of sociology at Hunter College-City University of New York, explained how plea bargaining racializes crime in plain sight, immediately affecting incarcerated youth. “The expectation is that many of these young men who are racialized as Black and Latinx will eventually succumb to a plea agreement, which typically occurs after spending a year, if not more, within the juvenile facility. During that time, they are exposed to various forms of violence and if/when they turn 18 and ‘catch a case’ in the facility, often, will be transferred to [an adult jail], which in turn places them at higher risk for exposure to violence.”
Here’s where the serpent swallows its tail: After generations of unequal arrests of Black people for everything under the sun, with most of those arrests ending in quick convictions, many of the players in the criminal legal system — including cops, judges, prosecutors and even defense attorneys — have come to equate “Blackness” with “criminality.” Legal scholar Carlos Berdejó described the practice of “using a defendant’s race [an observable attribute] as a proxy for the defendant’s inherent criminality [an unobservable attribute].” In other words, the law has gotten so used to rapidly affixing the label of “criminal” to Black people that it assumes the Venn diagram between “Black” and “criminal” is a perfect circle.
There’s no easy way to disrupt this process, but I believe it can be disrupted. The first step is to recognize the mechanism that enables the harm. For decades, the U.S. has been without a serious dialogue about basing an entire criminal legal system on backroom “deals” that are sure to end in convictions. It’s time we started one.