There are a handful of federal judges, bold and caring enough, who have come out from behind their bench to discuss what doesn’t work, what can be very wrong, about the legal system. Senior Judge Jed Rakoff of the Southern District of New York is one of them, and offers a thoughtful discussion of how plea bargaining rose to prominence, subverted the system and might be fixed, in the New York Review of Books.
Judge Rakoff starts, and quickly dispenses, with the obvious but necessary statement.
The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes.
After a history of how, and why, we arrived at our current state of affairs, the slide down the slippery slope that began post-civil war and picked up an unstoppable head of steam from the 1960s to 1980s, he arrives where we have been since the Supreme Court ignored every federal judge who ruled on the Sentencing Guidelines and affirmed their mandatory use in Mistretta.
One thing that did become quickly apparent, however, was that these guidelines, along with mandatory minimums, were causing the virtual extinction of jury trials in federal criminal cases. Thus, whereas in 1980, 19 percent of all federal defendants went to trial, by 2000 the number had decreased to less than 6 percent and by 2010 to less than 3 percent, where it has remained ever since.
The reason for this is that the guidelines, like the mandatory minimums, provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains.
Judge Rakoff offers a somewhat sensitive explanation of how defense lawyers, despite their best efforts, worked at an insurmountable deficit to prosecutors. From information, authority and money, the defense was massively outgunned. While certainly true, however, it doesn’t tell the full story.
In the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that, at the outset, she is at a considerable informational disadvantage to the prosecutor. If, as is very often the case (despite the constitutional prohibition of “excessive bail”), bail is set so high that the client is detained, the defense lawyer has only modest opportunities, within the limited visiting hours and other arduous restrictions imposed by most jails, to interview her client and find out his version of the facts.
It’s not that this isn’t accurate, but there is a disturbing hole revealed by the passive tense in the middle. For example, bail is not quite “set so high that the client is detained.” No, the judge sets bail so high that the client is detained. The judge, presumptively aware of the constitutional prohibition of “excessive bail,” decides how high to set bail. Bail doesn’t set itself.
This is offered as an example of “the problem,” that it’s never been entirely a matter of prosecutorial excess and overreach. Prosecutors can’t do it alone. While defense counsel may not have the benefit of the government’s massive investigatory reach and financial wherewithal, not to mention advance opportunity to get its ducks in a row before appearing in court. we can certainly learn in an hour a defendant’s family ties, employment history, financial status and other indicia that he won’t flee the jurisdiction. Yet, incomprehensible numbers, if not the word “detained,” echo through the room as soon as the defense lawyer’s mouth closes.
Against this background, the information-deprived defense lawyer, typically within a few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove.
To the extent there is any parity of power in negotiations, it comes from one place, and one place only: the defense lawyers’ willingness to take the case to trial. But as Judge Rakoff correctly notes, the prosecutor isn’t merely confident in his case, but overconfident.
I remember a young former prosecutor who became a defense lawyer standing in the hallway outside a courtroom, shaking his head in bewilderment. He explained that he had been before the judge a thousand times as prosecutor, and the judge loved him. The judge thought he was brilliant. The judge trusted him and believed everything he told him. But now, it was as if the judge didn’t even know who he was. Suddenly, he was unliked, stupid and untrustworthy, cavalierly dismissed by the very same judge, and embarrassed in front of his client. What happened, he asked me?
I laughed. I couldn’t help myself. “You changed teams,” I explained. “The judge never loved you. He loved your team.”
Where are those judges who will give the defense a fair shake at a suppression hearing? Where are the judges who will seriously entertain a Franks motion? Where are the judges who will show even the most remote sign of incredulity at the prosecution’s “peculiar” theory of culpability, reliance on jailhouse snitches, or facially absurd projections of financial loss, or drug quantity? Judges aren’t shy about telling the defense that it’s not looking good, or reiterating the prosecutors’ words, “frivolous,” “meritless,” “clearly, obviously, no need to even express a cogent argument because it’s so certain that the motion will be DENIED.”
Prosecutors don’t come out of the womb overconfident. They learn it in court. They learn it from judges who make them think they’re loved.
Judge Rakoff offers a proposal to alter the equation of plea coercion as it currently is practiced, such that innocent people make business decisions to plead guilty, by inserting the magistrate judge into the middle.
As I envision it, shortly after an indictment is returned (or perhaps even earlier if an arrest has occurred and the defendant is jailed), a magistrate would meet separately with the prosecutor and the defense counsel, in proceedings that would be recorded but placed under seal, and all present would be provided with the particulars regarding the evidence and issues in the case. In certain circumstances, the magistrate might interview witnesses or examine other evidence, again under seal so as not to compromise any party’s strategy. He might even interview the defendant, under an arrangement where it would not constitute a waiver of the defendant’s Fifth Amendment privilege against self-incrimination.
That Judge Rakoff recognizes both the reality of innocent people pleading guilty, a fantasy the system denies at all costs as it would otherwise require courthouse builders to change the platitudes over the front door, is important. Saying the words aloud that everyone in the system already knows matters, as no discussion of fixing the system can happen as long as we’re talking about a charade.
But two things would be needed, that do not now exist, for Judge Rakoff’s proposal to have any chance of working. First, there would need to be some clout behind the magistrate’s recommendation, or the overconfident prosecutor, the one who feels the love, can simply shrug and go about his day just as he always did.
No party would be required to follow the magistrate’s suggestions. Their force, if any, would come from the fact that they were being suggested by a neutral third party, who, moreover, was a judicial officer that the prosecutors and the defense lawyers would have to appear before in many other cases.
The second is that there would have to be a belief that the mag is an “honest broker.” This isn’t to say that she’s dishonest, but that it would be the same magistrate judge before whom we have appeared “in many other cases.” And almost every time, the defense gets burned, regardless of how right we may be. Until that changes, no proposal that relies on trust has a chance of working. But then, if there was trust, we might be far more willing to tell the prosecutor to shove his plea and take the case to trial.
H/T Cristian Farias