You should go read Jed A. Rakoff’s essay in The New York Review of Books, in which the senior federal district judge tries to explain why innocent people so often plead guilty.
But even if you have better things to do this weekend than digest Rakoff’s thorough, convincing, 4,400-word essay, it’s still worth considering why at least 20,000 people have pled guilty to and gone to jail for felonies they did not commit — if you very conservatively take criminologists’ lowest estimates, and cut them in half.
Rakoff identifies three ways the criminal justice system obstructs its own “truth seeking mechanism,” a trial by jury, which Rakoff calls a “shield against tyranny” and which Thomas Jefferson famously called “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
1. By embracing the increasingly-popular plea bargain. Some 97 percent of federal trials were resolved last year through plea bargain, the offer of a lesser charge and a reduced sentence if the defendant forgoes a trial. But the practice, which has never really taken hold in other countries, is, to Rakoff, “the devil’s pact.” Plea bargains happen behind closed doors, without judicial oversight, and are weighted largely in favor of the prosecutor, who has access to police reports, witness interviews, and forensic test reports. Prosecutors also have the discretion to shape the charges brought at trial, and until last year federal attorneys routinely used that power to bully people into plea bargains; any defendant who sought a trial would face the most severe charges with the lengthiest prison sentences as a matter of policy.
In contrast, defense attorneys typically only meet with defendants after they have been arrested and can only interview them through “arduous restrictions imposed by most jails,” as Rakoff puts it. The notion that a plea bargain is a contractual mediation between two relatively equal parties, Rakoff argues, “is a total myth”.
2. Through mandatory minimum sentences. These rules effectively took sentencing power away from judges and transferred it to prosecutors, who can ensure uncooperative defendants spend a long time in prison by bringing charges with the longest minimum sentences. In 2012, the average sentence for defendants brought up on drugs charges who took a plea deal equaled five years and four months, while the average sentence for those who went to trial was sixteen years. The combination of mandatory sentences and prosecutorial discretion forces the defendant into a grim cost-benefit analysis: run the risk of losing the case and serve the maximum sentence or take a reduced charge, at a reduced sentence, even when innocent.
3. Via the unfettered rise of prosecutorial power. Prosecutors have far more power to exert their will than any other party involved in the criminal justice system. The one mechanism that could check their power is the jury trial, which is becoming “virtually extinct” in federal court, Rakoff writes.
One possible solution to all these problems — aside from repealing mandatory minimum sentences and generally reducing the severity of sentences — is greater judicial oversight after indictment. Rakoff’s proposal is for a magistrate to meet with a prosecutor and defendant independently, ask them to provide evidence, and make their own propositions on whether the case is strong enough to go to trial. The magistrate could also interview witnesses and even the defendant.
“I am under no illusions that this suggested involvement of judges in the plea-bargaining process is a panacea,” Rakoff concludes. “But would not any program that helps to reduce the shame of sending innocent people to prison be worth trying?
Photo: Mark Humphrey/AP