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Behind Closed Doors: Plea Bargains and Mass Incarceration

The American criminal justice system is steeped in power imbalances and racial inequalities, both of which contribute to the United States’ mass incarceration problem. Highly utilised and normalised, plea bargaining is a seemingly innocuous component of this system. However, it serves to fuel the incarceration epidemic.

Plea bargaining is the process through which a defendant pleads guilty to a crime and forfeits their right to a trial, often in exchange for a lesser sentence. In theory, plea bargaining benefits all involved: the defendant receives a lesser sentence, the prosecution and defence do not need to prepare for a trial, and ultimately, the “criminals” are punished for their crimes in some way. However, these theoretical “positives” are exactly what make plea bargaining detrimental in practice; it becomes “a tool used to sustain mass incarceration through a prioritisation of efficiency that strips defendants of legal protection”.

The Sixth Amendment guarantees a defendant’s right to public and speedy trial. However, despite taking place behind closed doors with little legal procedure or regulation, plea bargains were ruled constitutional by the Supreme Court in Brady v. The United States. After this 1970 ruling, plea deals increased dramatically, and incarceration rates followed. Now, 97 percent of criminal cases in federal courts and 94 percent of cases in state courts are resolved by plea deals. This means that defendants in only three to six percent of all 1.4 million criminal cases in the United States benefit from their Sixth Amendment rights.

Due to the closed-door nature of plea bargaining, there are few studies that illustrate the processes through which a defendant forfeits their right to trial. It is widely understood, however, that plea bargaining is rarely a fair process, primarily because of the power disparities and incentives for the prosecution to secure convictions. Many of these incentives are related to job security instead of the pursuit of justice.

The prosecution is one of the most powerful bodies in the criminal justice system because of its close relationship with police and judges. With plea bargaining, in particular, this power gives the prosecution significant leverage over the defendant. As the prosecution charges defendants with crimes, they are able to “charge-stack” if they so choose.

Charge-stacking occurs when additional charges are levied against the defendant. This is made possible in part due to the specificity and abundance of crimes defined by the US, many of which overlap and can, therefore, be easily added to the original charge. A stack of charges and their corresponding sentences makes the unpredictability of trial, also referred to as the “trial penalty”, intimidating for the defendant, even if they are innocent. Facing this amassed entanglement of charges, defendants are more likely to make a deal.

Threatening high, unaffordable bail is another way the prosecution can take advantage of its power and relationship with judges to convince defendants to make a deal. High bail indicates the defendant cannot afford to leave jail while awaiting trial, a reality which primarily affects poorer defendants who are also disproportionately people of colour. Therefore, high bails can further reinforce racial inequalities inherent in the criminal justice system

A poor defendant, a single mother, for example, cannot spend several months in jail awaiting trial and is therefore forced to take the deal. The deal includes a lowered sentence that may take into consideration her role as a primary caregiver but also leaves her with a criminal conviction and the life-altering effects associated with such a label.

Plea bargains that utilise coercive tactics such as charge-stacking and the threat of high bail are therefore means by which America labels groups of people as criminals, while simultaneously perpetuating dangerous prejudices about who the criminals commonly are in society.

Furthermore, the prosecution is not the only party liable for high plea deal rates. Public defenders also play a significant role in this mass conviction factory. On average, they carry five times the workload of a full-time attorney. which, paired with conviction incentives, makes the speed and ease of plea bargaining desirable, despite the lack of justice in the process. Defendants of colour are most likely to receive a public defender who cannot spend adequate time and resources on their case, let alone go to trial. In this all too prevalent scenario, odds are, the defendant will plead guilty.

Like nearly every facet of the American criminal justice system, plea bargaining is biased and prejudiced against people of colour, particularly black men and women. A study on the relationship between plea deals and race found that:

“White defendants were 25 percent more likely than Black defendants to have their most serious initial charge dropped or reduced to a less severe charge”


“Black defendants were more likely than whites to be convicted of their highest initial charge.”

Alongside other links such as stops and searches and voter disenfranchisement, plea deals are one formidable link in the long, racially-biased chain that undermines the American criminal justice system and subverts its theoretical intentions.

Mass incarceration is a devastating consequence of this dysfunctional system, yet is made possible by plea bargaining. The ease and cost-effectiveness of plea bargaining generates an efficient flow of people into prisons. If every criminal case had to go to trial, the pipeline would clog; there would never be enough time, money, or resources to maintain the flow, ultimately resulting in fewer arrests, fewer convictions, and fewer people, namely people of colour, in prison.

In a country that reveres its cornerstone of justice - “innocent until proven guilty” - it is ironic that plea bargaining and its focus on conviction, has become the backbone of the American criminal justice system.


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