On Plea Bargaining and Prevailing Ideas

Two readers took issue with some of the opinions expressed in World-Outlook’s recent news analysis Trump Indictment: What Are the Issues? Both comments can be found beneath the text of the article.

“Not sure how plea bargaining undermines the right to trial by jury,” wrote Tom Q. “That is typically a right-wing talking point. No one is forced to take a plea bargain.”


We started with a factual observation. “According to the St. Francis School of Law, ‘more than 94% of successfully prosecuted state criminal cases, and 97% of federal criminal cases, now end in plea bargains,’” the article noted.

In fact, according to the National Association of Criminal Defense Lawyers, less than 3 percent of criminal cases in the United States have gone to trial in the last half century. The remaining 97 percent have been decided by plea bargain.

Based on those facts we concluded, “Plea bargaining is the bread and butter of prosecutors. They use it routinely to avoid being compelled to prove their accusations before a jury…. This systematic use of plea bargaining undermines the Sixth Amendment’s provisions to face one’s accusers in front of a jury of one’s peers.” We believe that conclusion stands.

Michael Cohen, Donald Trump’s former lawyer, after testifying in court against his ex-boss in 2018. Cohen pleaded guilty to breaking campaign finance laws in a deal with prosecutors in which he would serve only three years in jail in exchange for turning on his former client. Plea bargaining is the bread and butter of prosecutors. (Photo: Jonathan Ernst / Reuters)

We had not considered that some oppose plea bargaining because they favor imposing even harsher punishment on defendants than that imposed by some plea bargains. We don’t dispute the right of any defendant to choose to engage in plea bargaining when they feel required to do so.

There is another point to consider, however. Plea bargaining is part of how the U.S. ruling class has used the courts to impose mass incarceration unparalleled across the globe — more than 2.2 million prisoners, greater than in any other country.

“No other country locks up the number of people that we do,” said Dan Canon, a civil rights lawyer who teaches at the University of Louisville in Kentucky. “We also have a much higher rate of plea bargain cases than the rest of the world: almost 20 percent higher than just about any other common law country.”

Like other legal practices, plea bargaining is imbued with a strong class bias. The wealthy, like Donald Trump, can afford expensive attorneys and are less likely to be pressured into plea deals. Working people, on the other hand, cannot afford a costly defense and are more likely to accept plea bargains as a lesser evil to a trial.

Underlying the entire issue is the lack of justice in the capitalist courts. As we explained, the practice of increasing the number of charges well beyond the number of actual alleged criminal acts — and imposing the most serious version of a single charge — allows the courts to impose longer and harsher penalties. This is known as “over charging.” Prosecutors use it routinely.

Knowing that a fair trial by a jury of one’s peers is a promise in the Bill of Rights rarely upheld, many defendants feel compelled to bargain for a more lenient sentence rather than take their chances in court. The entire process undermines the intent of the Sixth Amendment in the Bill of Rights.

Where do ideas come from?

Reader mtomas3 wrote, “The article seems to leave out the ongoing effect such factionalism actually has on the population, especially working people (who, from other of your work, seems quite vague as to whom you are actually referring). From your writing, it seems there is only factionalism among contending wings of the capitalist class thereby leaving open that the ‘working class’ isn’t involved somehow. It seems an underestimation of what appear very real schisms among working people and oppressed communities (who by and large comprise the working class as well).”

It seems this reader has misunderstood the point we were making and presumes a thought we never expressed. We did not suggest that factionalism in capitalist politics — bourgeois politics — does not affect the thinking of the working class and the oppressed. To the contrary.

Our approach assumes, as a basic starting point, what Karl Marx and Friedrich Engels clearly spelled out in their work  “The German Ideology.” In a section subtitled “Ruling Class and Ruling Ideas,” Marx and Engels explained:

“The ideas of the ruling class are in every epoch the ruling ideas, i.e., the class which is the ruling material force of society, is at the same time its ruling intellectual force. The class which has the means of material production at its disposal, has control at the same time over the means of mental production, so that thereby, generally speaking, the ideas of those who lack the means of mental production are subject to it.

“The ruling ideas are nothing more than the ideal expression of the dominant material relationships, the dominant material relationships grasped as ideas; hence of the relationships which make the one class the ruling one, therefore, the ideas of its dominance. The individuals composing the ruling class possess among other things consciousness, and therefore think. Insofar, therefore, as they rule as a class and determine the extent and compass of an epoch, it is self-evident that they do this in its whole range, hence among other things rule also as thinkers, as producers of ideas, and regulate the production and distribution of the ideas of their age: thus their ideas are the ruling ideas of the epoch.”

From The German Ideology by Karl Marx & Friedrich Engels
The German Ideology by socialist leaders Karl Marx and Friedrich Engels

This is certainly true in the United States today, where, as we explained, the ruling class has two political parties, while the working class and the oppressed have no party of our own to counter the ideas the ruling class promotes through its many institutions.

Naturally the deepening factionalism within and between the Democrats and Republicans that we see every day deeply influences the current thinking of working people.

World-Outlook editors

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