The U.S. criminal legal system is terrible by so many metrics: We lock up more people than anywhere else in the world, our penalties tend to be harsher, our arrest rates are many times higher than other democracies, and so on. Plea bargaining is not often at the top of the list when we think of all harm done by the system, but the U.S. is an outlier in this area as well. More than 95 percent of all American criminal cases end in a guilty plea, mostly due to bargained agreements, making our plea-deal rate much higher than that of any other country in the world. In 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 relatively easy to see how this country became so mired in plea bargaining: Unlike our common-law cousins in England, Canada or Australia, our courts give prosecutors free rein to use threats, bribes, or any other tactics they might like to ensure that a defendant gives up their right to a trial. The question of why we got to this point requires more digging. The answer lies in the efforts to undermine the labor movement in the early 19th century.
Scholars trace the origin of American plea bargaining to Boston in the 1830s. Before that time, the idea of a prosecutor haggling with a defendant over what crime they would be charged with, or what kind of sentence they would receive, was unheard of. But once the practice of plea bargaining started, it pervaded the legal system at an astonishing rate. By the 1850s, the percentage of criminal cases ending in guilty pleas had jumped from 0 percent to 50 percent in Massachusetts. By the 1880s, the number was close to 90 percent. In 50 years, the jury trial — a central feature of democratic governance for millennia — had become practically extinct in New England.
What happened in the 1830s and 1840s that drove the plea bargain from taboo to typical? For one thing, the working-class population exploded after 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, were becoming more and more class-conscious. The first federation of labor unions was formed in New York in 1834, and strikes became ever more frequent across industries.
At that time, the ruling classes in New England were openly using every available institution, including the courts, to break the back of 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 became unsustainable during the 1830s. Universal white male suffrage became the norm, which meant that unlanded, working-class men could serve on juries. At that time, juries were extraordinarily powerful because they could decide not only issues of fact (e.g., did these workers participate in a strike?) but issues of law as well (e.g., should participating in a strike be illegal in the first place?). As one might expect, working-class jurors were sympathetic to defendants who just wanted a pay raise or humane working conditions. The powers-that-be quickly realized that they could no longer crush groups of workers over the head with the criminal law. There were too many of them, and they were already questioning the legitimacy of the existing class hierarchy.
By the early 1840s, Boston’s upper crust shifted to subtler methods of using the courts to undermine worker solidarity. First, they took power away 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 started looking the other way when prosecutors cut deals with defendants. This development cleared the way for a system built for speed. Cases could be disposed of without the need for lengthy, expensive trials. Issues of crime and punishment no longer required community approval, or even the input of a judge; they could be resolved with informal, lawyer-driven negotiation.
A little lubrication on the wheels of justice might not sound so bad. 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. By the time women and people of color were allowed to sit on juries, the jury trial was practically extinct, chased into obsolescence by backroom wheeling and dealing.
The death of the jury trial has allowed the public to abdicate its role in the criminal process. 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. Plea bargaining allows this whole system to run on autopilot.
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 adults in the U.S. now have an arrest record. Studies show that the psychological effects of being labeled a “criminal” are profound. Those with a criminal record are less likely to participate in civic life and more likely to adopt anti-social behaviors. Criminalization comes with stigma but also, often, with restrictions on housing, employment, child custody, volunteer activities, voting, and other forms of community participation. Nothing crumbles the loosely bound cake of American coexistence like criminal punishment.
The plea bargain, then, should be seen not just as a means of speeding up criminal cases, but as one of many methods in a centuries-old campaign designed to undermine working-class solidarity. When we talk about the need to dismantle the horrors of our criminal legal system, plea bargaining must be part of that conversation.