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.