Crime, Jed Rakoff, White-Collar Crime

Judge's Proposal For Criminal Justice System Is Far Too Sensible For Anyone To Actually Implement

An innovative solution to the unilateral prosecutorial control of plea bargains.

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The criminal justice system has all sorts of problems. Far, far, far too many people are in prison. Hell, lots of them are downright innocent. Most of those inmates are drawn disproportionately from the poor and minority population while the more affluent and white receive better treatment for the same crimes. And the wealthy, mostly white people who caused widespread economic pain not only avoided prosecution, but made healthy sums.

But one big problem with the criminal justice system that we’ve harped on before is the broad, largely unchecked power of federal prosecutors to bully the accused.

A prominent federal judge thinks it’s gone too far and he’s got a proposed solution.

Too bad it’s far too sensible for anyone in a position of power to actually adopt….

Judge Jed Rakoff spoke at the USC Gould School of Law’s Neiman Sieroty Lecture on the subject of “Why Innocent People Plead Guilty.” His diagnosis of the problem from his position as a judge, former defense attorney, and former prosecutor is pretty straightforward:

“Plea bargains have led many innocent people to take a deal,” Rakoff said. “People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.”

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So what does Judge Rakoff propose? Well, first he’d get rid of mandatory minimum sentences, though he admits there’s not much of a constituency for that. In a world where merely being a defense lawyer is enough to be smeared as soft on crime, no one is going to vote to reduce sentences. Even though most Americans, when confronted directly with the prospect of sentencing, without fail propose sentences below the mandatory minimums.

But an intriguing solution that could generate some support is a reform that takes a lot of the power out of the hands of prosecutors.

“What I have in mind is a magistrate judge or a junior judge would get involved,” Rakoff said. “He would take offers from the prosecutor and the defense. …He would evaluate the case and propose a plea bargain if he thought that was appropriate, and he might, in appropriate cases, say to the prosecutor, ‘You don’t have a case and you should drop it.’ This would be very difficult for the judiciary; it’s not something I come to lightly, but I can’t think of any better solution to this problem.”

Judge Rakoff wants the judiciary to exercise more control over the shape of deals? Surprise, surprise. But just as Judge Rakoff was right for calling out the S.E.C. for offering Citi a perfunctory wrist slap without offering the court any evidence to support the worth of the settlement, he’s right that judges need to take back more control over the shape of the criminal justice system. Just reviewing plea deals simply hasn’t worked out — someone whose job isn’t evaluated based on conviction stats needs to work out what constitutes a fair deal. Now, many might complain that the prosecutor will still hold all the cards, especially when most judges come from a prosecutorial background anyway, but any procedural check on prosecutors is welcome.

And, hey, a massive expansion in magistrates is the kind of legal sector jobs program we need.

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Why innocent people plead guilty [USC News]

Earlier: Judge Rakoff Rips The Government For Dropping The Ball On Financial Crimes
Governor Chris Christie Did What We All Should Have Expected From An Old Prosecutor
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