BOOK REVIEW: PLEADING OUT: HOW PLEA BARGAINING CREATED AMERICA’S PUNISHMENT SYSTEM BY DAN CANON  
Reviewed by William N. Sosis, Esq.

I. Introduction: A System Built on Expediency and Suppression

Dan Canon’s Pleading Out is a blistering critique of America’s criminal justice system, aimed squarely at its most dominant and least questioned mechanism: plea bargaining. Canon, a civil rights attorney and law professor, opens with a provocative thesis—far from being a necessary expedient to unclog overburdened courts, plea bargaining is the foundation of a system purpose-built for control. Not just control over “criminals,” but control over classes of people whose cohesion and collective action might otherwise threaten those in power.

Canon’s core argument—that plea bargaining is a sophisticated evolution of centuries-old methods to suppress labor solidarity, political protest, and class-based agitation—is both historically grounded and chillingly persuasive. He doesn’t merely argue that the system is broken; he insists it’s working exactly as intended. And that intention, from its origins in the 1830s to the present, has been to fragment the working class, maintain the supremacy of capital, and preserve a punitive order that trades democratic trials for secretive deals.

II. The Birth of Bargained Justice and the Death of the Jury Trial

In the early 19th century, jury trials were the norm. But starting in the 1830s, as Boston became a hotbed of industrialization—and, simultaneously, of labor unrest—a quiet revolution began in criminal procedure. Canon draws heavily from the work of sociologist Mary Vogel, tracing the emergence of plea bargaining to Boston's criminal courts. There, with little fanfare, plea deals began appearing as an unofficial way to handle the swelling number of criminal cases—cases that increasingly involved laborers, protestors, and poor people swept up in new vagrancy and disorderly conduct laws.

At the same time, New England's ruling classes were facing another problem: labor organizing. In Lowell, factory girls went on strike in 1834 and again in 1836. Coal heavers in Philadelphia staged the country’s first general strike in 1835. Railroad and textile workers followed suit. By the late 1830s, over 40,000 American workers were union members.

Canon shows that the legal system responded not by protecting these workers, but by criminalizing them. Early court decisions treated union activity as criminal conspiracy. The 1806 ruling in Commonwealth v. Pullis explicitly declared that combinations of workers to raise wages were criminal enterprises. Canon argues that the turn toward plea bargaining, far from being coincidental, was part of a broader strategy to contain labor activism—not through overt repression alone, but through subtle fragmentation and isolation.

III. Commonwealth v. Hunt and the Legalization of Labor—With a Catch

A pivotal moment came in Commonwealth v. Hunt (1842), where the Massachusetts Supreme Judicial Court ruled that workers organizing to improve wages was not criminal conspiracy. This case is often celebrated as a win for labor rights, but Canon offers a far more nuanced interpretation. The ruling did not free unions from control; rather, it brought them under the judiciary’s purview. Labor could now be regulated legally and dismantled incrementally, not crushed in the streets.

Canon argues that this shift necessitated new legal tools. Open violence and mass incarceration of unionists risked backlash. But if individuals could be quietly charged, pressured into pleas, and removed from public view—all without the spectacle of a trial—the system could maintain control without sparking rebellion. Thus, plea bargaining wasn’t just about saving judicial resources; it was about stealthily maintaining class domination.

IV. Plea Bargaining as a Technology of Fragmentation

Canon is at his sharpest when discussing how plea bargaining sows division. In its essence, plea bargaining is an individualizing force. It turns collective resistance into isolated compliance. Each defendant negotiates alone, in secret, under immense pressure and without meaningful leverage. The state risks nothing; the individual risks everything.

The effect, Canon argues, is the neutralization of solidarity. “A plea-driven system,” he writes, “perpetuates divisions among people who share common woes and who might otherwise unite for a common purpose”. Whether the charges stem from protest, poverty, or everyday criminalization of marginalized communities, the result is the same: the accused are atomized, silenced, and ushered into a growing criminal class.

Once branded a criminal—often without trial, evidence, or public scrutiny—a person is cut off from the civic body. They are relegated to what Canon calls “the lowest stratum of all.” Their ability to participate in labor organizing, voting, or any form of protest is severely curtailed. The system does not merely punish crime; it manufactures criminals.

V. From the Industrial Age to the Mass Incarceration Era

Canon’s historical lens never blurs into nostalgia. He traces plea bargaining’s evolution into the 20th century, showing how it adapted to each new challenge to elite control. In the early 1900s, as mass immigration and radical labor politics threatened the establishment, plea bargaining offered a quiet way to dispose of anarchists, communists, and agitators without the risk of martyrdom.

By the mid-century, civil rights activists were frequently pressured into plea deals, avoiding trials that might have exposed police misconduct or racist enforcement. The drug war of the 1980s and 1990s supercharged the system. As courts became swamped with low-level drug cases, plea bargaining became not only the preferred method of resolution—it became virtually the only method. Today, 97% of criminal convictions come through guilty pleas.

Canon illustrates how the logic of efficiency has hollowed out the justice system. “It’s no exaggeration to say that it takes longer to buy a used car in America than to buy twenty years of freedom,” he writes. Justice is traded like a commodity—cheap, fast, and indifferent to truth or fairness.

VI. The Political Economy of Pleas: Profit and Control

Beneath the humanitarian rhetoric of efficiency lies an economic structure that rewards plea-driven convictions. Canon links plea bargaining to the prison-industrial complex, a term often used to describe the nexus of private prison contractors, probation companies, ankle-monitoring services, and state surveillance apparatuses. All of these thrive on a constant influx of convicted bodies.

Canon also critiques the courtroom actors who perpetuate the system—not out of malice, but inertia, fear, and careerism. Prosecutors measure success by conviction rates. Judges value docket clearance. Public defenders are overworked and under-resourced. The system incentivizes speed over substance, compliance over conflict.

Yet, perhaps most disturbing is Canon’s assertion that plea bargaining functions as a deliberate “contract of adhesion.” There is no negotiation between equals. A low-wage worker accused of shoplifting does not have the bargaining power of the state. And yet the courts pretend the plea is “voluntary,” upholding an illusion of fairness that masks the raw exercise of power.

VII. Organizing Against the Plea Machine

Canon closes his book with a call to action—one rooted not in courtroom reform, but in organizing. Just as workers once organized for the ten-hour workday, Canon argues, today’s communities must organize against plea bargaining. This means public education, coalition-building, and mass refusal. If enough people decline to take pleas—especially for low-level offenses—the system will be forced to change its priorities.

Canon is realistic about the obstacles. Many people plead guilty because it seems like the best (or only) option. Prosecutors threaten longer sentences if defendants refuse. Pretrial detention pressures poor people to take deals just to go home. And yet, Canon points out, every feared outcome of plea abolition—chaotic courts, longer waits, racial disparity—is already a daily reality. “So what if the system collapses?” he asks provocatively. “Maybe it should”.

VIII. Conclusion: Bargained Justice Is No Justice

Pleading Out is both a legal analysis and a moral indictment. Canon has written not only an exposé of a judicial mechanism, but a history of power. He shows, convincingly, that plea bargaining was never a neutral tool—it was, and remains, a weapon. It is used not to solve crime but to suppress dissent, not to administer justice but to manufacture criminals, not to protect the public but to preserve the status quo.

Canon’s argument is not merely that plea bargaining should be reformed. He wants us to understand it as an institution—a deliberately constructed technology of control that arose alongside capitalism, industrialization, and the criminalization of poverty and protest. To change it is not merely to fix a flaw in the justice system; it is to challenge the very foundations of how power operates in America.

For those interested in criminal justice, labor history, or democratic theory, Pleading Out is essential reading. But it is also a call to conscience. In a society that prides itself on liberty and fairness, Canon reminds us, we must confront the systems that make those values a lie. And plea bargaining, hidden in plain sight, is among the most potent—and the most perverse—of them all.

 
WHY DETERRENCE SHOULD NOT BE USED AS AN AGGRAVATING FACTOR DURING SENTENCING
By William N. Sosis, Esq.

Deterrence is often cited as a cornerstone of criminal sentencing, intended to dissuade individuals and society at large from engaging in unlawful behavior. However, using deterrence as an aggravating factor during sentencing is fundamentally flawed in the context of modern criminal justice, where the overwhelming majority of cases are resolved through plea bargaining. The private, non-transparent nature of plea negotiations undercuts the core rationale for deterrence, making its use as a sentencing enhancer unjustifiable.

Plea bargaining dominates the American criminal justice system, accounting for over 90% of convictions. These agreements are negotiated outside public scrutiny, with little to no opportunity for the broader community to observe the proceedings or understand the rationale behind specific punishments. Deterrence relies on the visibility of consequences; it presumes that others will see the punishment meted out for a given crime and adjust their behavior accordingly. In a plea-driven system, where deals are struck behind closed doors, the deterrent effect is inherently diluted. If the public cannot see the process, they cannot be influenced by its outcomes.

Furthermore, the variability and lack of transparency in plea bargaining undermine the consistency needed for deterrence to function effectively. Sentencing outcomes often hinge on the negotiation skills of the parties involved, the discretion of prosecutors, and systemic pressures to resolve cases quickly. This lack of uniformity sends mixed messages to the public about the consequences of criminal behavior. For deterrence to work as an aggravating factor, there must be a predictable relationship between the offense and the punishment, a standard that plea bargaining fails to meet.

Incorporating deterrence as an aggravating factor also risks exacerbating existing inequities in the criminal justice system. Defendants who accept plea deals often face harsher sentences compared to what they might receive if deterrence were not a factor, particularly for marginalized groups disproportionately targeted by law enforcement. This creates a cycle where deterrence perpetuates rather than prevents systemic injustice.

Finally, emphasizing deterrence during sentencing shifts focus away from other principles like rehabilitation and restorative justice, which are often better suited to address the root causes of crime. By relying on a rationale that is ineffective in the plea-bargain-driven system, the justice system fails to serve both individual defendants and society at large.

In conclusion, deterrence should not be used as an aggravating factor during sentencing in a system dominated by private plea negotiations. Its application is inconsistent, inequitable, and disconnected from the realities of contemporary criminal justice, undermining its intended purpose and perpetuating systemic harm.

WHY THE TRIAL PENALTY HAS AN UNJUST EFFECT ON THE CRIMINAL JUSTICE SYSTEM
By William N. Sosis, Esq.

The trial penalty refers to the stark disparity between the sentences defendants receive after a trial conviction and the much lighter sentences offered during plea bargaining. This penalty exerts an unjust influence on the criminal justice system, undermining fundamental rights, perpetuating inequities, and eroding public confidence in justice.

The trial penalty coerces defendants into forgoing their constitutional right to a fair trial. Faced with the prospect of harsher sentences if convicted at trial, many individuals—regardless of their actual guilt—opt to accept plea deals. This dynamic compromises the adversarial nature of the justice system, where the accused is meant to test the evidence against them in open court. Instead, it creates a system where fear of punishment rather than the pursuit of justice drives decision-making.

One of the most troubling aspects of the trial penalty is its disproportionate impact on marginalized and vulnerable populations. Defendants who lack resources for a robust legal defense often feel they have no choice but to accept a plea deal, even when evidence against them is weak. This perpetuates systemic inequities, disproportionately affecting people of color, low-income individuals, and those with limited understanding of the legal process. In this way, the trial penalty exacerbates existing inequalities in the criminal justice system.

Moreover, the trial penalty contributes to wrongful convictions. Innocent defendants, fearing an excessively severe sentence if convicted at trial, sometimes plead guilty to crimes they did not commit. The pressure to accept a plea deal can overshadow their ability to mount a defense or assert their innocence, resulting in miscarriages of justice. Such outcomes undermine the credibility of the legal system and erode public trust.

The trial penalty also distorts sentencing practices by prioritizing efficiency over fairness. By offering significantly lighter sentences to those who plead guilty, the system incentivizes expedient resolutions at the expense of thorough deliberation. This devalues the role of trials as venues for accountability and truth-seeking, while allowing prosecutors disproportionate leverage in determining outcomes.

In conclusion, the trial penalty has a corrosive effect on the criminal justice system. It infringes upon defendants’ rights, exacerbates systemic inequities, facilitates wrongful convictions, and prioritizes expediency over fairness. A just system must ensure that exercising the right to a trial does not come with undue punishment, reaffirming the principles of fairness, equality, and justice that are meant to undergird the rule of law.

REFERENCES:

1. Mary Vogel, Coercion to Compromise: Plea Bargaining, the Courts and the Making of Political Authority (Oxford: Oxford University Press, 2007).
2. Albert W. Alschuler, “Plea Bargaining and Its History,” Columbia Law Review 79, no. 1 (1979): 1–43.
3. Stephanos Bibas, “Harmonizing Substantive-Criminal-Law Values and Criminal Procedure: The Case of Alford and Nolo Contendere Pleas,” Cornell Law Review 88 (2003): 1361–1402.
4. Russell Covey, “Reconsidering the Relationship Between Cognitive Psychology and Plea Bargaining,” Marquette Law Review 91, no. 1 (2007): 163–230.
5. National Right to Counsel Committee, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel (2009).
6. Jed S. Rakoff, “Why Innocent People Plead Guilty,” New York Review of Books, November 20, 2014.
7. Stephanos Bibas, “Plea Bargaining Outside the Shadow of Trial,” Harvard Law Review 117, no. 8 (2004): 2463–2547.
8. Oren Gazal-Ayal, “Partial Ban on Plea Bargains,” Cardozo Law Review 27 (2006): 2295–2336.
9. Frank H. Easterbrook, “Plea Bargaining as Compromise,” Yale Law Journal 101 (1992): 1973–1990.
10. Robert E. Scott and William J. Stuntz, “Plea Bargaining as Contract,” Yale Law Journal 101 (1992): 1909–1968.