SDNY Judge Jed Rakoff hasn’t been afraid to ask questions and challenge the “way things are,” which is most assuredly a virtue in an Article III judge. He sees the problem, according to his speech at USC Law School:
“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.”
Five years? I wish. But still, his sentiments are clearly on target, that we’ve become a system of plea bargains, with “only 2 percent of cases in the federal system go to trial, and 4 percent of cases in the state system go before a jury,” and the prosecution dictates what that bargain will be.
The judge offers the usual remedies:
Rakoff said prosecutors should have smaller roles in sentence bargaining and the mandatory minimum sentences should be eliminated.
As career DOJ prosecutors know, strong mandatory minimum statutes are essential to rein in the sometimes ideological, sometimes naive, and sometimes careless decisions of sentencing courts.
But Judge Rakoff has another idea, which may seem “ideological, sometimes naive, and sometimes careless” to prosecutors, but strikes ATL’s Joe Patrice as “far too sensible for anyone to actually implement.”
“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.”
There’s a huge built-in irony here. While prosecutors may not trust judges enough to let them be judges, because they may not adore prosecutors nearly enough, judges believe that they are the mother lode of fairness and reasonableness.
From a judge’s perspective, this may well seem like a viable option. After all, no one can possibly question their fairness and dedication to “justice,” because they’re judges and when they put on a robe, the heavens open and lightning bolts of fairness fly down from on high and strike them between the eyes.
And from the prosecutor’s perspective, it’s understandable that they don’t want to give away the hammer they wield to beat defendants into submission. Who would?
But to call this a sensible solution, no less one that is far too sensible to happen, reflects a fundamental ignorance of the process. Sure, a magistrate judge might be able to tell a prosecutor that his case is a mutt, but that wouldn’t mean he would have to dismiss it. And even if it did, such a pronouncement by a mag would happen, what?, once or twice in a millennium? We would know exactly which mag made such an errant suggestion, as they would be the one sending out resumes.
While prosecutors may see judges as their ideological enemy, defense lawyers don’t see them as their bestest friends. At best, a judge might bring a bit of skepticism in his review of a prosecutor’s evidence, but that would be just a tiny bit, and likely on the rarest of occasions. Notice how often dismissal and suppression motions are granted? Is there any reason to suspect that judges would be any more amenable to the defense otherwise?
But in the process, it would be up to the defense to “sell” the judge on why the prosecution’s life plus cancer offer isn’t “justice.” Would we be constrained to reveal our defense, our best evidence, our witnesses? Because the prosecutor won’t send the FBI out to have a nice chat with them within the hour, causing our witnesses to flee the country and never speak with us again under threat of a §1001 prosecution?
Much as I can appreciate Judge Rakoff’s concerns and effort to come up with an alternative to the current system, clearly a fiasco for defendants, his deference to judges is still a hammer to the defendant’s nail.
Despite their best intentions, judges are still judges, and still tend to align themselves with the other guys. They may not entirely agree with them, but they don’t tend to agree with us at all. Could this serve to temper the prosecution’s unilateral power to ram a plea down the defendant’s throat? Perhaps, but given institutional pressures and incentives, it seems far more likely that this “far too sensible” solution is more a matter of trading 121 months with a scowl for 121 months with a smile. It doesn’t “solve” much of anything.
On the other hand, the judges have it within their power to make a real change, without any impossible to implement change. They can do it today. Just end the trial tax. Let defendants know that they won’t suffer a sentence three times the plea offer for exercising their right to put the prosecution to the test. Let’s try more cases, and put the question before the judge instead of letting either prosecution or judge decide just how guilty the defendant is.
If the only problem stopping the system from working toward a solution is that judges slam the defendant for having exercised his constitutional rights, then judges don’t need to devise a new scheme for plea bargains. Try the case, and should the defendant be convicted, don’t impose a sentence so coercive that he believes he has no option but to acquiesce to the prosecution. And you can do that starting today.
Update: Wisconsin Court of Appeals Judge Ralph Adam Fine reminds me of his 1986 piece, Escape of the Guilty & Extortion of the Innocent. 28 years and still fighting for the right to go to trial without being extorted by a grossly excessive penalty for the exercise of this constitutional right.