Kopf: A Short Take on a Pithy Comment by an Aging Trench Lawyer

On October 18, 2017, the CATO Institute held a day-long program on “Criminal Justice at a Crossroads.” The program consisted of various panels discussing a variety of issues regarding the criminal law.

Our host, Scott Greenfield, sat on one of the CATO panels with Judge Jed Rakoff, the eminent Senior Judge from the U.S. District Court for the Southern District of New York. The third panelist was Suja Thomas, Professor of Law at the University of Illinois at Urbana-Champaign and a scholar devoted to studying the American jury system. The panel discussion was entitled, “The Defendant in Court.”

The primary discussion that ensued dealt with the dearth of criminal jury trials and the large number of plea bargains. Everyone seemed to agree that more criminal jury trials would be a good thing.[i] But then the discussion turned to plea bargains.

Summarized and condensed, Professor Thomas thought plea bargains were horrible and maybe even unconstitutional. Judge Rakoff thought plea bargains were problematic and judges ought to get more involved in the plea bargaining process. He suggested that a second judge, perhaps, in the federal system, a Magistrate Judge, hold a mediation of sorts. The mediating-judge would hear a recounting of the evidence separately from both sides and would make a record of the presentations. Then, the mediating judge would make a secret recommendation to the parties whether the case warranted a plea bargain and what a fair plea bargain might look like. The recommendation and the hearing record would be sealed and not available to the trial judge. However, Judge Rakoff candidly admitted that his suggestion (modeled after a procedure in Connecticut) has never found traction in the federal system.

In part, this is what Scott said about plea bargains:

[Plea bargaining] is a sucky system. Plea bargaining is a terrible thing except for not plea bargaining, which would be a disastrous thing.

(Access the video recording here and the quoted comments beginning at about 43:25.)

What I found remarkable about the panel discussion on plea bargaining was that two of the highly-regarded panelists were seemingly willing to advocate drastic changes that won’t be adopted and they seemed to know it. It took a trench lawyer to see the world for what it is. Perhaps I should not have been surprised.

Richard G. Kopf
Senior United States District Judge (Nebraska)

[i] I am agnostic.

14 comments on “Kopf: A Short Take on a Pithy Comment by an Aging Trench Lawyer

  1. B. McLeod

    Case volume is such that the system could not work without plea bargaining, and that has been true for as long as I can remember.

    1. SHG

      Volume can be accommodated, if enough resources were dedicated to the system. That’s the most obvious, but least of the problems.

      1. B. McLeod

        In the abstract it could be. Enough resources have never been dedicated to the system (well, at least for as long as I can remember). We are seeing the stress of that now even post-conviction, where prison space falls short of what is needed to meet sentences, and overcrowding orders force early releases.

        1. SHG

          Put aside logistics and consider other issues, like the exposure for a deft to go to trial, the likelihood and ability of a defet being able to prove you weren’t part of the conspiracy, etc. Even if there were only ten cases a year, these problems remain and require a “safety valve” from life plus cancer, especially for the overcharged and the innocent.

          1. B. McLeod

            Right. Those are among the reasons defense counsel play ball, but the government needs plea bargaining just as much or more.

    1. SHG

      Quick lesson: discovery can take months, even years, while a deft sits in jail. Some guys are funny about not wanting to sit in jail waiting for discovery to be completed. Go figure.

      1. John Barleycorn

        Well there is that, but that wouldn’t be an issue but for the Bail Bullies.

        Speaking of which, do you figure Bail Bullies are just born that way or does it have somethig to do with the lack of oxygen in the air at bench altitude?

  2. Billy Bob

    Which one is Scott? You are not *aging* if your hair is not gray/white. Trust it. The Orange Man is the outlier. He [Scott] is a youngster in sheep’s clothing. We still luv him, non sequiturs ad nauseam notwithstanding, irregardless. (Lawyer-speak, excuuuse me!)

  3. Hal

    “[S]ucky”? That was the best you could do? Sucky? What happened to your famous and much vaunted vocabularyness?

    Enquiring minds wnt to know.

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