Excerpted From: Thea Johnson, The Efficiency Mindset and Mass Incarceration, 75 Oklahoma Law Review 115 (Autumn, 2022) (114 Footnotes) (Full Document)


TheaJohnsonMass incarceration, like mass production of any kind, requires a critical level of efficiency. The dramatic increase in cases in the criminal legal system over the last several decades required legal actors to adopt efficient methods of case resolution--namely, mass plea bargaining. But the rise of plea bargaining as a substitute for adjudication by trial also required legal actors to adopt a mindset that normalized churning out pleas in criminal courts across the country. That mindset embraced efficiency as a fundamental value that has, for the most part, come to trump other seemingly more traditional values, like the pursuit of truth or public access to the legal system. But as other scholars have argued, while mass plea bargaining appeared to be an effective way to deal with heavy caseloads, it also, counterintuitively, contributed to those heavy caseloads by allowing the system to process many more cases cheaply and efficiently. The efficient administration of criminal justice increased the number of cases, the length of sentences, and the overall punitiveness of the criminal system.

To challenge mass incarceration, then, one must tackle the efficiency mindset that is now deeply engrained among judges, prosecutors, defense attorneys, probation officers, court clerks, and other system actors--lawyers or otherwise--who touch the criminal legal system. The efficiency mindset is often associated with productivity strategies in the business context, but here I use the term to mean a belief that efficiency is a normative good within the criminal legal system. This concept of efficiency further encompasses the theory that, because it is a normative good, efficiency should be pursued, particularly through plea bargaining. In the criminal justice system, lawyers and courts seek to resolve cases efficiently, without wasting time or resources reaching a conclusion. One can point to the many conditions or beliefs that make efficiency so attractive to legal actors: caseload pressures, scarcity of resources, the belief that defendants are guilty and therefore procedures should be dispensed with quickly, or even a fear of going to trial, among other reasons. Whatever the underlying motive, there now exists a cultural norm in criminal courthouses to resolve cases efficiently.

Nothing has proved to be so powerfully efficient for resolving cases as the plea bargain. In misdemeanor courts across the country, but particularly in large cities that process thousands of cases weekly, most defendants stand before a judge for mere minutes before pleading guilty. Pleas are taken quickly and with minimal discussion between the defendant and the court, and sometimes even with minimal discussion between the defendant and her lawyer. The same often rings true at formal plea hearings, despite the fact that these hearings are meant to establish that the defendant understands her rights, that she is waiving them knowingly and voluntarily, and that a factual basis exists for the conviction. One can see this efficiency mindset on full display in courtrooms at the U.S.-Mexico border, where judges have accepted pleas from groups of fifty to a hundred defendants at the same time. Indeed, the government gave these mass prosecutions a special efficiency-oriented name: “Operation Streamline.”

Of course, one could look at the examples above and easily attribute them to what might be called a cruelty mindset--that is, a belief that individual defendants do not deserve full process or, even at a basic level, a chance at a just resolution of their cases. As Alec Karakatsanis has compellingly argued, lawyers have become party to the “usual cruelty” of the criminal system, which allows them to avoid questioning the many brutal aspects of the modern criminal system. Cruelty--and indifference--often play into the criminal legal system. But the desire for efficiency (i.e., getting things done quickly) is likely a greater overt motivator for many lawyers and judges than malice or indifference. This is, at least in part, because maximizing efficiency has been legitimized as a norm, even among those who see its risks.

But efficiency and its progeny, plea bargaining, have very real costs. As other scholars have argued, plea bargaining is tied to the rise of mass incarceration specifically because it allows parties to efficiently process cases. As in business, where efficiency means you can get more bang for your buck, so too in the criminal justice system we have seen that quickly resolving cases corresponds with an increase in cases, sentence length, and punitiveness in general. The criminal system took its efficiency gains and converted them into more criminal cases, just as a business would convert efficiency into growth. And the participation of lawyers and courts made this efficiency-based growth possible.

Legal actors like plea bargaining because it is efficient for them in individual cases or as a means of handling their individual caseloads. In the aggregate, these individual decisions likely contributed to the rise of mass incarceration. But because efficiency drove individual rather than global decisions, it may be difficult to convince legal actors that they caused and now sustain mass incarceration. And ironically, plea bargaining has become a primary way to avoid some of the worst features of our mass incarceration system. It is through pleas that defendants can avoid harsh mandatory minimums or devastating collateral consequences. This makes plea bargaining appear not only efficient but also, at times, just. In addition, for many legal actors, plea bargaining has become a matter of survival. As one prosecutor put it, “That's my water .... I can't swim without it.” Like water for fish, plea bargaining is fundamental to the survival of lawyers and judges in the modern American criminal system.

If plea bargaining is indeed responsible for creating some of the system's worst aspects, even as it counterintuitively helps avoid them in individual cases, then legal actors must reevaluate their addiction to plea bargaining. A significant part of that reevaluation necessarily involves breaking the efficiency mindset as lawyers learn to seek justice without the quick fix of plea bargaining. In this context, cultural change among legal actors is as important, if not more so, than any legislative or judicial fix one can envision (and, as I note in Part III, I do not think either of these fixes is likely forthcoming).

But changing legal culture is hard. As public defender Jonathan Rapping has described it (using another water metaphor), “Culture is like the current of a mighty stream,” and fighting against that current is difficult. Those attached to the efficiency mindset (current judges and lawyers) are unlikely to engage in meaningful cultural change.

So where might this change come from? In this Essay I suggest two sources of power for shifting the efficiency mindset. The first comes from legal actors not yet fully acculturated to the current model: law students. While I propose integrating plea bargaining into criminal law curriculum and training students on the risks of coercive plea bargaining, my focus here is less proposal than observation. There is good evidence that law students are already primed to change the system. Younger generations of public defenders see their role more holistically than prior generations, and more young lawyers are entering the ranks of progressive prosecutors' offices with a different vision of what constitutes justice. But even beyond those students interested in pursuing criminal law, law students of all interests may be resituating themselves in relation to the criminal system in ways that will lead to broader change.

The second source of power comes from non-legal actors--namely, defendants and their communities. Here I draw from the work of Jenny Roberts, Andrew Manuel Crespo, and Michelle Alexander to suggest that collective action stemming from outside the system may force lawyers to change their perceptions and understanding of plea bargaining. Current efforts by the Institute to End Mass Incarceration and community organizers to coordinate plea strikes may force system actors to reckon with their addiction to the efficient resolution of cases. As Michelle Alexander famously noted ten years ago in her op-ed for the New York Times, Go to Trial: Crash the Justice System,

The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation .... [T]he system would crash--it could no longer function as it had before.

One way then to shift legal culture is to shift the conditions that make the culture possible. Legal actors are attached to efficiency because they can be. Plea strikes may have the power to change conditions and the culture growing from those conditions.

This Essay proceeds in three parts. Part I gives an example of the efficiency mindset in practice and uses it as a case study to explain why the efficiency mindset thwarts even modest changes to plea practice. Part II explores the literature on why efficiency and plea bargaining contributed to and now sustain mass incarceration. Part III then examines the sources of power that may break the efficiency mindset. By examining these sources of power--both inside and outside of the legal culture--the Essay hopes to offer some ideas for how lawyers and judges might start to, or be forced to, reenvision their role in mass incarceration.

[. . .]

Efficiency often carries a positive connotation. To be efficient, especially in a job, is to get things done quickly and with little wasted effort. As such, it makes sense that lawyers and judges see efficiency as a normative good, particularly since it can be used in individual cases to achieve fair results in an often unfair system. But this view of efficiency masks the darker side of the efficient administration of justice, which has contributed to some of the underlying causes of mass incarceration. To combat mass incarceration, reformers must think seriously about how to break lawyers and judges of their efficiency mindset. As this Essay suggests, new lawyers not yet steeped in the efficiency mindset might push for change within the system, while defendants organizing through collective action can exert pressure from outside the system.

Thea Johnson is an Associate Professor of Law at Rutgers Law School.