From the President: Boston, Workers, and the Trial Penalty — Expanding the Reach of Criminal Laws Without Increasing the Burdens on the Prosecution
By Martín A. Sabelli, NACDL President
March 2022 issue of The Champion
My first three columns focused on the trial penalty — aka coercive plea bargaining. The first column articulated NACDL’s commitment to eliminating the trial penalty. The second explored the painful reality that the trial penalty punishes people of color and the poor much more harshly than others given profound asymmetries of power in the “bargaining” process.¹ The third dissected the symbiotic relationship between the trial penalty and police misconduct resulting from the darkness cast over police (and prosecutor) misconduct by a system characterized by categorical waivers of rights rather than public hearings and trials.
This column focuses on the origins of modern plea bargaining to suggest that coercive plea bargaining did not arise inevitably and organically from the needs of the criminal legal system; rather, modern coercive plea bargaining arose in the 19th century from a deliberate strategy to expand the reach of criminal laws in order to contain nascent union movements and other challenges to political authority.² I have based this column on the recently published and profoundly insightful history of plea bargaining, “Pleading Out: How Plea Bargaining Creates a Permanent Criminal Class,” authored by Dan Canon of the University of Louisville. I recommend it as first-rate scholarship by a colleague who draws upon his work as a defender to explain the abuse of coercive plea bargaining across two centuries.
As Canon points out, the power of the prosecutor and the resulting eradication of most jury trials resulted from elite campaigns to marginalize and control lower classes by keeping them “uninvolved, uneducated and out of the courthouse.”³ In fact American plea bargaining emerged in Boston in the early 19th century focused on suppressing nascent union movements that had been energized by a wave of class-conscious immigrants who fled Europe willing to fight for a better life.
To control these movements, authorities expanded the reach of the criminal law to prosecute individual workers en masse for “immoral” conduct including vagrancy, public decorum offenses (for example, being “drunk and disorderly”), and other loosely defined crimes intended to reach the poor. This expansion, however, not only overburdened the 19th century criminal legal system but also exposed the reality that many working people charged with these “crimes” found sympathetic juries in New England. To counter juror sympathy for these workers, prosecutors developed a new tool — the plea bargain — which allowed for more efficient convictions by eliminating the administrative costs and constitutional checks. This new tool also removed the protection offered by sympathetic jurors who questioned the criminalization of conduct rooted in poverty. The cost of prosecution was thereby greatly reduced in the guise of a “benefit” to the accused, which resulted in many more convictions, more “criminals,” and fewer trials.
Observers of the War on Drugs will recognize this dynamic. Expand the reach of the criminal law — overcriminalize — to encompass a vulnerable group (would-be union workers and the poor in the 19th century or people of color and the poor during the “War on Drugs”) while reducing the costs of prosecutions. In the 19th century, the strategy effectively diminished workers movements by transforming noncriminals into criminals with their coerced consent; in modern America, the strategy has filled our jails and prisons and skewed electoral politics by disenfranchising many people of color, again, with their coerced consent.
How many of us are aware of this history? How many of us question the legitimacy of plea bargaining? How many of us consider alternatives to this reality that seems “natural” but was, in fact, constructed for unconstitutional purposes in the 19th century and reconstructed again for unconstitutional purposes in the War on Drugs?
Coincidentally, I am writing this column less than 12 hours before Judge Ketanji Brown Jackson will appear before the Senate Judiciary Committee and less than four days after the United States Sentencing Commission reported that 98.3 percent of federal criminal cases end with the whimper of a plea and not the bang of a trial.⁴ For the first time, a nominee offers this nation the lived experience as a former public defender who appreciates the threat posed to liberty by the disappearance of trials — a threat that alarms virtually every defender but hardly registers with many, if not most, government lawyers, prosecutors, and corporate lawyers who make up the federal judiciary. This reality brings into very sharp focus why we need meaningful diversity on the bench. President Joe Biden — a former public defender — has started down that road by being the first president in American history to nominate more public defenders (24) than prosecutors (17).
Let me close this column by underscoring the fact that today many voices have sounded⁵ the alarm and are mobilizing to untangle the complex web of laws, opinions, rules, practices, and culture that authorize coercive plea bargaining practices — perhaps little by little or, perhaps, as Alexander “undid” the Gordian knot with one stroke of his sword. NACDL has led this effort and will continue to do so for the sake of our clients, our members, and the future of our country.⁶
1. The machinery of the modern criminal legal system — aptly characterized as “assembly-line justice” by Justice Douglas in Argersinger v. Hamlin, 407 U.S. 25 (1972) — does greater harm to those exposed to systemic racism (including overcriminalization, disparate policing practices, and mass incarceration), implicit bias, underfunding of public defense, and mandatory minimum sentencing. “Bargaining” for the most vulnerable means little more than being presented with coercive ultimatums — offers “you cannot refuse,” as Vito Corleone might say.
2. For those who believe that plea bargaining is a “natural” feature of the adversarial process, consider that, as late as 1973, the National Advisory Commission on Criminal Justice Standards and Goals recommended that plea bargaining be eliminated nationwide. Five years later, however, in Bordenkircher v. Hayes, the Supreme Court gave its blessing to plea bargaining in a case whose perfect reasoning conceals the brutality of the law applied by those who have never represented a criminally accused human being. Paul Hayes, a 29-year-old, refused a five-year “deal” for passing a bad check for $88.30. In response, the prosecutor charged him under the state’s habitual offender statute, which carried a mandatory penalty of life behind bars. Hayes
was convicted and sentenced to life. In a 5–4 vote, the Supreme Court affirmed, citing the “mutuality of advantage” that plea bargaining gives both defendants and prosecutors.
3. Dan Canon, On TV every defendant gets a trial. But in real life, trials are rare. How plea bargaining undermines justice, WASH. POST, March 17, 2022, https://www.washingtonpost.com/outlook/2022/03/17/tv-every-defendant-gets-trial-real-life-trials-are-rare.
5. In addition to NACDL, ACLU, Cato Institute, Fair Trials, FAMM, Stand Together, and Right on Crime have joined a nascent coalition to fight the trial penalty. In addition, Cato Institute, Human Rights Watch, Right on Crime, Texas Public Policy Foundation, FAMM, the ACLU, the Charles Koch Institute, the Innocence Project, and Fair Trials International joined the Launch Event for NACDL’s federal trial penalty report, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, held at the National Press Club on July 10, 2018.
6. NACDL hosted a two-day summit in December 2021 that was co-sponsored by the organizations listed in note 5. The summit united these groups to prepare to launch a coalition to restore the meaningful exercise of rights by eliminating the trial penalty. NACDL has been committed to this effort for some time and, in fact, NACDL addressed this issue in its 2018 report, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. NACDL and NYSACDL published a New York state-level equivalent, The New York State Trial Penalty: The Constitutional Right to Trial Under Attack, in 2021. NACDL and CACJ have initiated a California state-level report expected to be published in August 2022. Other state affiliates have also formed task forces working with NACDL.
About the Author
Martín Sabelli represents individuals in state and federal courts in a wide range of civil and criminal matters from the simplest of cases and gang-related prosecutions to the most complex white collar investigations and death penalty prosecutions. He is a speaker at seminars and trial training programs for NACDL, the National Criminal Defense College, and other defense programs around the world.
© 2022, National Association of Criminal Defense Lawyers. All rights reserved. This article originally appeared in The Champion magazine and is reprinted with permission.