Book Review: Confronting underground justice: Reinventing plea bargaining for effective criminal justice reform

• Author: Kevin Petersen
• Published date: 01 June 2022
• Date: 01 June 2022
• DOI: http://doi.org/10.1177/0734016819853335
• Subject Matter: Book Reviews

Kelly, W. R., & Pitman, R. (2018).

Confronting underground justice: Reinventing plea bargaining for effective criminal justice reform. Lanham, MD:

Rowan & Littlefield, 245 pp. $35, ISBN 978-1-5381-0648-8.

Reviewed by: Kevin Petersen ,George Mason University, Fairfax, VA, USA

DOI: 10.1177/0734016819853335

Critiquing the U.S. criminal justice system and its overreliance on plea bargaining is by no means

uncharted waters. Yet many of these criticisms fall short of providing sufficient recommendations

for change, and many others neglect the views of those involved in the process. In Confronting

Underground Justice, Kelly (professor of sociology at the University of Texas at Austin) and

Pitman (U.S. district judge) use their second coauthored book on criminal justice reform to

provide a detailed account of plea bargaining as it currently operates, the perspectives of various

legal actors, and detailed suggestions for reform. For Kelly and Pitman, plea bargaining has been

the unheralded catalyst of the U.S. criminal justice system’s retributive approach to punishment

and must be a primary mechanism for system-wide reform. Through a comprehensive timeline of

changes in policy and practice, interviews with lawyers and judges, and well-reasoned solutions,

Confronting Underground Justice constructs a persuasive argument.

Confronting Underground Justice is divided into eight chapters, with the opening chapter discuss-

ing the foundations from which the reliance on punishment, and subsequently on plea bargaining,

arose. The tough-on-crime political mentality of the late 1960s established an emphasis on incarcer-

ation. Decades later, determinate sentencing legislation gave prosecutors increased discretion, and

this discretion has resulted in the reliance on plea bargaining that can be seen today. For Kelly

and Pitman, the modern criminal justice system has “…created the ultimate recidivism

machine…” (p. 22), and it is the disinterest in recidivism, largely through failing to address

mental health and substance abuse disorders, that has resulted in unmanageable caseloads despite

dropping crime rates. Strewn throughout this introductory analysis is the usage of plea agreement

and recidivism statistics that, along with an economic analysis of the monetary cost of recidivism

and incarceration, convincingly supplement the authors’assertions. After describing how and why

the justice system has become a system of plea agreements, Chapter 2 details what plea bargaining

is and the mechanisms by which it operates. This chapter also makes interesting use of previous

Supreme Court case law that has helped to establish the legitimacy of plea bargaining as a practice.

Building from this foundation, they use selections from their guided interviews with prosecutors,

public defenders, and judges in Chapter 3 and throughout the remainder of the book. Admittedly,

their sample is small and selected by convenience, their excerpts create a clearer picture of the diver-

gent opinions these legal actors may have on the utility of plea negotiation. Carrying their examples

over to Chapter 4, the authors discuss the common concerns associated with the bargaining process,

such as strength of evidence, coercion, ineffective counsel, and false confessions. The interview

excerpts truly give life to this section of the book, as they portray the central ideas in a uniquely illus-

trative way. This flows nicely into Chapter 5 that contains a discussion of remedies to the previously

proposed problems, while allowing Kelly and Pitman to both assess these remedies and propose their

own in Chapters 6 and 7. The measures that the authors propose become both a central tenant of the

book and a defining characteristic of the complexity of the plea-bargaining reform. Their recommen-

dations are concerned with far more than making the bargaining process procedurally just; rather,

they entail a broader criminal justice reform. Central to these recommendations is the establishment

of an independent review board of behavioral health experts. This review board would attempt to

determine why an individual has committed a crime and then develop solutions to prevent future

criminal behavior. A neutral plea mediator could also be used to ensure that plea agreements are

274 Criminal Justice Review 47(2)