US District Judge Hon. Jed S. Rakoff once said, “When I was a prosecutor, of course, I thought the system worked absolutely perfectly. When I was a defense counsel, I had some doubts. But I didn’t really see the magnitude of the problem.”
He later tried to describe the magnitude of the problem in his startling 2021 book, “Why the Innocent Plead Guilty and the Guilty Go Free and other paradoxes of our broken legal system,“
His book contains essays on why innocent people plead guilty, why the government does not prosecute executives, why, with vanishing trials, those accused don’t get their day in court, why the judiciary limits its constitutionally mandated power, and why the Supreme Court fails to combat excesses by the president.
Judge Rakoff also appears in YouTube videos. Here is the transcript of one called America’s Guilty Plea Problem.
In reaction to the then-rising crime rates, Congress and the states imposed all sorts of very severe penalties: mandatory minimums of five, ten, 15, 20, and in some cases, even more years. And for these and other reasons, as these laws came into place, there was a tremendous penalty attached to going to trial.
Trial by jury seems to be disappearing in America.
You would get a much more severe sentence if you went to trial than if you pled guilty, particularly if you could negotiate a plea to a lesser offense or something of that sort.
And the statistics are really quite striking.
Starting in the mid-80s and continuing right down to the present, instead of 15-20 percent of all cases going to trial, it quickly declined to something like three percent, and that’s where it remains to this day.
And a certain portion of that are people who are actually factually innocent, who decide to plead guilty because they simply can’t take the risk that if they go to trial and are convicted, they will be facing 10, 15, 20, or more years with devastating effects on themselves and their families.
And so, they prefer, even though they’re innocent, to take a plea that might result in a prison term of one or two or even five years, rather than assume the risk.
This is not a speculation; this is a proven fact, and the Innocence Project has provided part of the proof. Of the more than 300 people who the Innocence Project has shown were factually innocent and whose convictions, often of the most serious crimes, were shown to be erroneous and led to their exoneration, approximately 10 percent actually pled guilty – pled guilty to things like homicide, pled guilty to things like rape, even though they had not committed those crimes.
And it was later proven definitively that they had not committed those crimes. But they couldn’t take the chance of facing the death penalty or life imprisonment or otherwise very severe sentences if they went to trial and they lost. So, it is a severe problem.
How large a problem it is nationwide, no one knows for sure.
It’s really a realistic appreciation by these defendants of what their chances are, and the fact that they are innocent doesn’t mean they’re going to be acquitted. And the fact that they are innocent doesn’t mean that they believe they are going to be acquitted, even if they will be acquitted.
So, the combination of those psychological pressures leads them to plead guilty.
The laws put a lot more power into the prosecutors’ hands, and he’s being told by his superiors, “Charge the most severe crimes you can than you have any chance of proving because that will foster guilty pleas. And we have many more cases than we can deal with, so we need guilty pleas to dispose of them.”
In many state courts where the dockets are huge, the legal aid lawyer may meet his client five minutes before he cuts a deal with the prosecutor, and the prosecutor will be cutting 40 deals in one morning.
And so, the judge will have to take pleas from 40 defendants, and those are going to be very attenuated allocations.
So, after seeing this going on, even in my court, not to that extreme but in some disturbing ways, I began to look into the matter.
I have to also say, like every judge in this country, I was impacted by the Innocence Project because what the Innocence Project has shown beyond everything else is that our legal system is a lot less perfect than we always thought it was.