Overpunishment, Rationality, And Rakoff

A look at one federal judge's proposal to reform the criminal justice system and the responses it has generated.

Judge Jed S. Rakoff (S.D.N.Y.) has launched a firestorm of conversation about his criticism of the federal criminal justice system in the New York Review of Books and his proposal for how to fix it.

First, a bit of backstory for those who do not turn to the New York Review of Books for commentary on the federal criminal justice system. Rakoff wrote “Why Innocent People Plead Guilty,” laying out the consequences of a federal criminal justice system where federal prosecutors have a massive amount of power. Because prosecutors have the power to threaten people accused of a crime with very long jail sentences under mandatory minimum regimes and the sentencing guidelines if they go to trial, prosecutors can coerce people into taking pleas where they otherwise wouldn’t, often to terms that are better than what they’d face after a loss at trial, but terms that are, still, really not very good.

Rakoff proposes that, instead, magistrate judges be inserted into plea conversations between the government and the person accused to reduce the chance that the government will try to stick the person with something insane or bully an innocent person into pleading guilty.

The New York Review of Books ran two follow-ups where writers commented on Rakoff’s piece and he responded (here and here). They are fascinating reading.

First, the father of Aaron Swartz – the poster child for prosecutorial overreaching, who was facing a trial penalty so dramatic he decided to, instead, take his own life – wrote a scathing piece saying, basically, if there were some check on prosecutorial power, my son might not be dead right now. He writes that in his son’s case there was “ample evidence of prosecutorial misconduct and really no avenue to deal with it.” That observation is too true. Even a vindictive prosecution motion, in some contexts, is rendered appeal-proof if the jury returns a guilty verdict. If a guy is guilty, the courts really don’t care if he shouldn’t have been prosecuted in the first place. There are too few meaningful checks on abuses of prosecutorial power.

The rest of the pieces are what one would expect. District Court Judge Michael Baylson writes that the system is working just fine. Former District Court Judge Nancy Gertner writes that things are much worse. And a partner at Zuckerman Spaeder writes to point out that there are some parts of Rakoff’s plan that would be hard to implement.

The last letter, though, from Bruce Brower, the Chair of the Philosophy Department at Tulane, raises an interesting question though.

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Here’s what Brower writes:

The fundamental difference between criminal justice as the Founders intended it and criminal justice as currently practiced is that in the first, two opposing sides present a case before an independent decision maker (judge or jury) who operates with no bargaining interest, whereas in the current system, there is still bargaining instead of an independent judgment regarding guilt. Judge Rakoff’s solution also maintains the bargaining, and while it may make the procedures fair by equalizing the power of prosecutors and defense attorneys, it would still lead innocent yet rational defendants to plead guilty.

Ok, right, sure, I’m with him on the “this is not the criminal justice system the framers imagined” point. (See also this.) But that ship has sailed – this is already not the system the framers imagined. If you want to get things back to colonial days, start allowing jury nullification and let there be a meaningful avenue for raising challenges to how prosecutors exercise their discretion. Also have fewer criminal laws.

What I find unfair about Brower’s response is that Rakoff’s title is not the sum total of his complaint. Obviously, having innocent people plead guilty and go to prison is bad. It’s unconscionable.

But a similar and still very serious problem is guilty people pleading guilty and receiving sentences that are vastly disproportionate to what they ought to receive. It’s easy to champion the innocent. The cause of the “guilty but overpunished” is, for some reason, very difficult to sell to Americans to generate outrage. Yet that problem is rampant in the federal courts and a part of what Rakoff is writing about.

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Brower targets only the first part of the problem – that innocent people plead guilty. He ignores the other part – that prosecutors have too much power and that leads guilty people to go to prison for longer than they should.

Plea bargaining in federal court, as many have said, is less bargaining than pleading. And, as a result, prosecutors cram horribly long sentences down the throats of many a defendant.

What Rakoff’s proposal would do is force prosecutors to open the kimono to a judge – who they have to get search warrants approved by, and appear in front of for detention hearings, and interact with professionally in loads of other ways – about their charging decisions and why they think the person who they’ve accused ought to go away for as long as they think he or she should. It would, in essence, require prosecutors to justify their decisions about how to exercise prosecutorial discretion.

While that may mean that it wouldn’t reduce the risk of innocent people pleading guilty – though perhaps it would have helped in Aaron Swartz’s case, and others – it would dramatically reduce the risk of prosecutors overpunishing.

Brower is right on the game theory – a rational innocent person may still take a plea if the punishment on a plea is low enough and the chances of losing at trial are high enough. But the problem isn’t just with rational action and game theory – a person accused of a crime and facing a near certainty of conviction would be rational in taking an absurdly long sentence if the alternative is an even longer absurd sentence.

Which is perhaps a nice reminder that even if something is rational, it can still be really bad.

Why Innocent People Plead Guilty [New York Review of Books]
Plea Bargains & Prosecutors: An Exchange [New York Review of Books]


Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.