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Strange Fruit: Does Plea Bargaining Hurt People of Color?


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“When the Negroes were freed and the whole South was convinced of the impossibility of free Negro labor, the first and almost universal device was to use the courts as a means of reenslaving the blacks. It was not then a question of crime, but rather one of color, that settled a man’s conviction on almost any charge. Thus Negroes came to look upon courts as instruments of injustice and oppression, and upon those convicted in them as martyrs and victims.” --W.E.B. DuBois, The Souls of Black Folk (1903)

That's how philosophy professor Brady Heiner opens his article, The Procedural Entrapment of Mass Incarceration: Prosecution, Race, and the Unfinished Project of American Abolition. The passage from 1903 seems eerily informed by today's mass incarceration, the school-to-prison pipeline, and the over-policing of black neighborhoods.

We've talked before about how African-Americans and Latinos are over-represented in the prison population, and the reasons why are complex. But Heiner focuses his work on a particular one we admit had never occurred to us: plea bargaining.

Plea bargaining is when a defendant is facing multiple serious charges, and rather than go to trial (and possibly be convicted of all of them), they choose to plead guilty to a lesser charge, foregoing a trial. Heiner says this forfeiture of due process does more harm than good -- especially to people of color accused of crimes.

We knew plea bargaining was widespread (as does anyone who's ever had speeding reduced to "faulty equipment," or watched any lawyer show), but we had no idea the extent of the practice: 95 percent of criminal convictions never go to trial.

Heiner will speak at the Univeristy of Louisville on Monday afternoon. He joins us on the show this week to offer some radical suggestions for upending the system, and to answer a big question: What would happen if every defendant demanded a trial?

In our Juicy Fruit segment this week, we take on the comparisons between Rowan County Clerk Kim Davis, Martin Luther King Jr., and Rosa Parks (yes, people have really made those comparisons). And we scratch our heads at an unlikely Davis apologist: Madonna's openly gay brother, Christopher Ciccone.

We also learn some secrets of top chefs (that bread on your table at dinner was probably left over from someone else's table at lunch), find out what graysexual means, and have a rousing debate on the health and safety of the 5-second rule.

Laura is LPM's Director of Podcasts & Special Projects. Email Laura at lellis@lpm.org.

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