Every now and then, people come along who not only say something meaningful about our world but propose something specific to improve it, and who possess the pedigree and gravitas to actually move the needle. We do well to listen to them.
So registers this essay by Jed Rakoff, a federal judge from the Southern District of New York. He’s a Harvard Law graduate; a former clerk on a prestigious federal court of appeals; a former associate and partner at a couple top-shelf, white-shoe law firms; a former federal prosecutor and criminal defense attorney; and all he’s done since 1996 is preside over trials and cases, taking guilty pleas, calling balls and strikes, and sentencing people. You might say he knows of what he speaks.
Judge Rakoff’s essay, Why Innocent People Plead Guilty, further develops ideas that he first floated at an academic lecture in April. His essay traces the history of plea bargaining from before the Civil War, when it was exceedingly rare, through its rising use in the years since as a way of handling rising volumes in the criminal-justice system. Today, he says, federal trials are few and far between, and the realities of plea bargaining in most cases resemble not so much an agreement formed at arm’s length but a contract of adhesion where the prosecutor has the person over a barrel. And Rakoff’s not even talking about the turnstiles and cattle calls that pass for some state courts and misdemeanor courtrooms in the country.
The upshot? Innocent people do plead, would plead, and have pleaded guilty in our system. There is little doubt, there. Personally, I believe the overall error rate is higher than the conservative assumptions Judge Rakoff uses for conversation’s sake. I’m also not convinced that harsh, “tough-on-crime” approaches have played a major role in the declining crime rates of the past twenty-plus years, as the same trend seems to have cut across most of the developed world, not just the United States, over the same period.
The solution? Have judges participate in plea negotiations, says Rakoff, something that the federal rules of criminal procedure currently forbid. See Fed. R. Crim. P. 11(c)(1). It’s a solution that some states have already adopted to some degree or another. Judge Rakoff suggests revising the federal rules to permit magistrate judges to hold settlement conferences in criminal cases. If the parties can’t settle and the case goes to trial, the district judge who presides over the trial will not have compromised his or her objectivity and can still fairly call the balls and strikes. As Judge Rakoff points out, some federal judges already do this in civil cases. It’s an idea that deserves attention.
Consider this excerpt: “Reflecting, perhaps, the religious origins of our country, Americans are notoriously prone to making moral judgments. Often this serves salutary purposes; but a by-product of this moralizing tendency is a punitiveness that I think is not likely to change in the near future. Indeed, on those occasions when Americans read that someone accused of a very serious crime has been permitted to plea bargain to a considerably reduced offense, their typical reaction is one of suspicion or outrage, and sometimes not without reason. Rarely, however, do they contemplate the possibility that the defendant may be totally innocent of any charge but is being coerced into pleading to a lesser offense because the consequences of going to trial and losing are too severe to take the risk.”
Case in point: Larry Overton. He’s the husband of Hannah Overton, whose capital-murder conviction was recently reversed amid serious questions of a runaway prosecution. Her husband, Larry, was also charged with capital murder, but even though the case against him was weaker, he took a deal and pleaded no contest to criminally-negligent homicide. If you’re wondering why he would plead to anything if he wasn’t guilty, consider that he received a sentence of five years’ probation and a $5,000 fine. That’s pretty good when they’ve charged you with capital murder. His wife, Hannah, who went to trial, was sentenced to life without the possibility of parole. Larry pleaded out, in his words, because “that was much better than having my children grow up without a mother or a father.”