Melissa Harris-Perry: Hi, you all. I'm Melissa Harris-Perry, and this is The Takeaway. Did you know in Salt Lake City you can go to jail for failing to return library books? In Tennessee, you can earn six years in prison and lose your voting rights for illegal camping. Until 2015, Alabama considered it a felony to teach a bear to wrestle. Come on, man, what are you all doing? You're teaching bears to wrestle? Listen, these are just some of the seemingly outrageous criminal penalties on the books in American cities and states. When so much is against the law, well, anyone could find themselves suddenly facing charges.

This is part of what civil rights attorney, Dan Canon argues in his new book, Pleading Out: How Plea Bargaining Creates A Permanent Criminal Class. Now, Canon details how the speed and volume of our criminal legal system has led to a system where fewer than 3% of defendants are given a jury trial. Instead, more than 90% of criminal cases end with conviction as a direct result of plea bargaining. This creates a permanent criminal class and undermines democracy. I sat down with Dan Canon to discuss Pleading Out.

Dan Canon: Plea bargaining is the primary means and really almost the only means by which we resolve criminal cases in the United States today. Right now about 97% of all of our criminal cases are resolved by guilty pleas, which is way more than anywhere else in the world. Not coincidentally, we also have far worse criminal justice outcomes than the rest of the world by most metrics. We arrest more people for more things, we lock up more people for longer, the system is demonstrably racist and classist and all that.

The premise of my book is that we couldn't have gotten to this point without an unchecked, unregulated system of plea bargaining, which is prosecutors using whatever tools they can, any sort of carrot, any sort of stick, infinite time in jail, the death penalty, so on and so forth, to get people to plead as opposed to exercising their right to go to trial.

Melissa Harris-Perry: At the start of chapter two, you write this sentence, "The American jury trial is dead." If I'm a listener, again, not unnecessarily involved in the system of criminal justice and criminal punishment, I would say, "Well, haven't I just been watching a bunch of jury trials on my Court TV channel." What do you mean the American jury trial is dead?

Dan Canon: Yes, the jury trial has been getting chased into extinction over the last 200 years. At this point, we're down to about 3% of all cases getting resolved via jury trial, and that number is actually dwindling. I think that part of the point of the book is that there's this potentially tremendous social value to having more people serve on juries that's just been lost due to the rise of plea bargaining. There's a bit in the book about the participation theory of democracy, the idea of being that the more that you deliberate about some civic duty, the more you learn and care about the democracy that you're in.

Voting might make you care a little bit about your community and the stuff that you do for it, and jury service actually makes you care a lot. If you accept that theory, and there's plenty of evidence to suggest that we should, the death of the jury trial is like the death of democracy, or at least anything resembling an educated, engaged democracy. The integrated jury, for example, has barely been utilized at all in America. Women, for example, couldn't serve on juries in Massachusetts until 1950. Of course, people of color were systematically excluded from jury service long after that, and some places still are.

By that time, by the 1950s and 1960s, the jury trial was already headed for extinction, it's practically extinct now. We've never really tried to use true juries of a defendant's peers to administer justice in this country.

Melissa Harris-Perry: In this text, you tried to trace out a historical and theoretical set of reasons why, why we have never fully articulated or made a prolonged attempt to pursue justice in that way? You write, "The American legal system was designed by people in power as a tool to keep them in power at whatever cost." That's a pretty provocative claim there, that that is the purpose and the design of the system itself. Walk us through at least a little bit to explain how you get to that claim.

Dan Canon: Yes, that's a lot for, I think, lay people and even most attorneys, even attorneys that work in the system every day that believe they're doing justice on some level. It's a lot for us to accept that an institution itself, the courts themselves could be classist or could be racist. I think for most people, it's not too hard to accept that the court system, the system of criminal justice that we inherited from the English way back when was originally designed to be an explicitly classist system. I think it's useful to ask, at what point in time did that change?

To answer your question, plea bargaining started sometime around the 1830s, which is around the same time that the courts were actively and openly involved in trying to break the back of organized labor. You've got this nascent labor movement as a result of the Industrial Revolution and prosecutors are using conspiracy statutes or what have you to prosecute workers for collective action, basically.

By the 1830s, you've got the situation where the working classes are getting too big and too class-conscious. At the same time, you've got more working class people, white men sitting on criminal juries. Those men were often quite sympathetic to workers who were being treated badly by their bosses. It became too risky for the powers that were to just keep pounding away at the labor movement with criminal laws, they would've lost legitimacy.

The elites in New England still needed ways to break up working class solidarity, so they switched to a strategy of criminalizing all the behaviors of all the individual workers instead of trying to prosecute them as a group. By prosecuting a critical mass of workers, you've got a situation in which the ruling classes could bring those workers under the control of the state to a degree, and also, and this is really important, attach the stigma of the criminal label to them, which helped to alienate so-called criminals from their communities and to disrupt working class solidarity. The plea bargain was a way to do all that quickly and quietly.

The jury trials are becoming too risky. If you want to make thousands of criminals, you can't really do it with a jury trial, trials take too long. Over time, more and more places in the country started buying into this system of quick deals and prosecutors got more and more leeway to make those deals using whatever terms they wanted, until you get to where we are today, which is the jury trial is practically extinct.

At the same time, you've got juries taken out of the equation, you've got this concerted effort by the courts to take powers away from the jury, make things more complicated for juries, put more power in the hands of the lawyers that are doing the wheeling and dealing. About the time that plea bargaining starts taking over, the criminal law in America starts to expand. As I said, rather than criminalizing organized labor out right, you've got a situation where all these individual hate and behaviors that workers are engaging in get criminalized. You've got this huge swelling of the Criminal Code, especially in the 20th century, when you hit prohibition in 1919.

That's a watershed moment because then the federal government starts getting involved and criminalizing everything. The states are following suit. Behaviors that used to be considered fairly benign, now all of a sudden, the federal government which was not really involved in too much day-to-day law enforcement before that time starts getting heavily involved. In fact, the number of people incarcerated in federal prisons tripled between 1920 and 1933.

By the time prohibition is over with, you've got this spoken sense of urgency driving criminal justice because there's just so much crime out there and we've got to take care of all that crime. Expediency becomes the guiding principle of the whole system. We got to lock up lots of people and we got to do it fast. The year after prohibition goes away, you've got nine different federal crime bills that pass easily and go into effect criminalizing all kinds of stuff. Then with the rise of the administrative state, you've also got a whole host of different behaviors that don't even require criminal intent that you can lock people up for.

I've got a story in the book about the Hanset case, where you've got a contractor that hires a subcontractor, [unintelligible 00:09:29] fact, not even involved in the hiring of the subcontractor. The subcontractor screws something up, backs a backhoe into something, and the contractor is prosecuted under the Clean Water Act and ends up with six months in jail for something he really had no involvement in and couldn't even have had any intent. There's a lot of that kind of thing now where you have these zombie criminal laws that don't require intent that aren't really a reflection of the [unintelligible 00:09:59] of the community.

Then, of course, you've got the post-Jim Crow Era, where white America is addicted to locking up people of color, you've got the drug wars. You arrive at this place, and this is where we are now, where just about anything you do can be considered criminal in some way. One of the experts that I've quoted in a book estimates that American professionals just sitting in a computer commits something like three felonies a week.

Melissa Harris-Perry: Wow.

Dan Canon: [chuckles] It's during this time, throughout the 20th century, plea bargaining is becoming more and more popular all over the country because you just can't prosecute all that crime if you're going to trial in every case, you got to have a quick fix, something that's going to streamline the process. The end result is this total removal of the community from not just the courthouse, but the entire process of criminal justice, to where we don't really pay attention to the new criminal laws that come down. It's like, "Okay, whatever, it's a new criminal law."

I talked to some state legislators in the book who admit to not having read the criminal bills that come in front of them and they still vote for it, because it's like, "Okay, this is a new criminal law and we like that. This is going to pass pretty easily and I don't want to be on the wrong side of it." That's where we are. The community is totally divorced from criminal justice, which is an unprecedented thing in human history to have happen.

Melissa Harris-Perry: Two things I want to get you to walk through. One, as you're talking about that moment that shifts around white America becoming addicted to locking up non-white folks, particularly African American, Latinos, and you walk us through the shift in prison population rates. I will say, you don't talk much or write much about race in the book.

There are a few moments you certainly designate it, you clarify it, but as you're writing about the notion of criminal class and criminal identity and, again, centering around unions and around prohibition, I have to say, it felt insufficient to me, or it felt like, "Is he trying not to talk about race? Is he encouraging--" Because your point about just working on your computer, you may have committed four felonies. I was wondering if this was explicit and purposeful in part to have more Americans have a sense of their own vulnerability within this system or if for you it is more of a class and almost cast framework than a race one? I was genuinely interested in how you did or did not manage race within the text?

Dan Canon: In all fair questions, and I'm glad you asked me that, the issues of race and class in the United States are inextricably bound. There's no question about that. We've got certain kinds of classism that have just-- If the whole creation of race was the same strategy that I talk about in the book, where you're trying to pit working class people against each other, and in many ways, the criminal class is seen as synonymous with people of color, and that's where we've gotten to in this country.

I don't write much about that, I do cover it. I don't write much about that in the book, not because I want the book to be totally reductionist and only talking about class, but mostly because there are other scholars of race in the criminal law that do it so much better. I wanted to take a broader lens and to look at the problem focused on class not because race doesn't matter to the conversation, because, of course, it does, but simply because it's a different way of understanding it. If you look at books like The New Jim Crow, for example they handle the racial aspect of this whole problem I think much better than I could.

Melissa Harris-Perry: Dan Canon author of Pleading Out: How Plea Bargaining Creates a Permanent Criminal Class. Thanks for joining us.

Dan Canon: Thank you so much for having me.

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