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.
I wish all federal judges were wise like this man. He’s an American hero and compassionate person.
It’s better that 10 innocents get convicted than even one guilty person goes free and can harm me.
Just saying
I agree. I think that it’s better to err on the side of putting the occasional innocent in prison to prevent criminals from being free to harm my family.
Innocents suffer in all courts. The priority shifted long ago to dropping workload and rotating the calendar. There is no concept of justice any more, just a bunch of whiney old lawyers playing god in long black dresses. Too pathetic to even hold themselves accountable, too selfish and self serving to protect anyone else or anything at all, but their own images.
The way judges are selected and remain in power, are the problems. When the way judges are chosen is politically charged, or often a friendly aka corrupt as fuck lawyer willing to do whatever the judge wants including bribe, coerce or even overreach and sanction people for results without any regard for the letter of the law, the spirit of the law or civil rights. They care absolutely zero about laws unless they can use them to make their job easier by breaking, or perverting them by ignoring their true purpose. This is because you are hiring lawyers that refused to act ethically and were never held accountable. Why would gaining more power for doing that as a reward make them suddenly gain a sense of ethics?
I would argue that 90% of sitting judges could not pass a modern BAR exam. They routinely teach coersion as a settlement method, they lie, they tamper with records and evidence, and when they are caught they both retaliate and often remove themselves from the case without even having the intestinal fortitude to admit they were ethically challenged.
If they’re real bad, like Judge Ueda here in Sacramento, they will repeatedly admit they are corrupt and committing crimes, and then punish you for recording to try and protect your family from further abuse. In my case, upon appeal, the judge made my file disappear, and the opposing attorney who magically works as a judge in the same court chased off my appelate lawyer. Repeatedly. And there were several clear procedural issues that would have led to a judge with any sense overturning the matter. Judge Ueda also came in on a day off to another department to hear a complaint from my STILL wife (14 month marriage, over 3 years in divorce) that I would not authorize repairs on a vehicle that is my separate property. This was after she canceled my insurance without my knowledge or consent, violating ATRO’s for about the 200th time.
I haven’t seen my son in almost a year, even though my orders say 3 times a week. Laura has never once complied with those orders. The judge has never done anything to enforce the orders. In fact, she blocked 2 separate efforts to substitute out the lawyer Carla Harms the pro tempore chased away so I could act in pro per, because their intent was to declare me a vexatious litigant, and she could no longer do that by law for several more actions.
Tell me again about how the court systems in this country are great. The worst part is judges like you, who pretend to be ethical, but also know all this corruption is going on, but do jack and shit to protect the citizens or uphold the law as they swore to.
Drain the swamp, volunteerism with heavy oversight. Stop letting walking, talking turds like this make fortunes off the misfortune of people trying to peacefully resolve matters in courts.
And yes, that’s my real name. Don’t bother making an effort to blackball me. They already did it.
“When I was a prosecutor I thought the system worked absolutely perfectly”
Absolutely perfectly? I doubt Jed Rakoff was ever so naive.
Of course the American justice system doesn’t work perfectly. No human institution is perfect.
In his opinion, the system is “broken”. He is welcome to his opinion. The Innocence Project is of the same opinion but one hardly expects an advocacy group with such a name to be unbiased. (I would wager that The Innocence Project doesn’t live up to the ideal of being a perfect institution either)
The above article is long on generalities and short on specifics. For specifics, let’s look at the government case against Raniere and Nxivm. How “broken” was the justice system in that case?
Raniere didn’t plead guilty. He went to trial and he lost. He lost because he’s guilty as hell.
The government didn’t convict him. That was up to the jury of twelve independent citizens. And they all had to agree, unanimously.
The prosecution proved all seven counts in the indictment. That doesn’t look like a broken system to me.
Raniere would’ve been better off had he taken a guilty plea, like his co-defendants did. They all got light, extremely light sentences. Looks to me like there’s a whole lot of carrot in the justice system, and far less stick.
In the Nxivm case, prosecutors concentrated the head felon Raniere. Lesser felons (and they were many) were let off lightly, if they were charged at all. A co-conspirator like Clyne was never even arrested. Even though she was a member of this criminal racket’s inner circle and despite the assistance she provided to this sex trafficking operation.
I could go on. Point is, the justice system is actually quite lenient. Criminal activity was rampant in the Nxivm cult, the whole thing was basically a Ponzi scheme and there was a large sex trafficking operation going on. Desk drawers and boxes full of unaccounted cash were the norm. And what, four people actually went to jail?
That doesn’t seem like a brutally harsh system to me. If it’s “broken”, it’s broken on the side of leniency. Overall, in the Nxivm case I’d say justice was done. The criminal enterprise was broken up, the leader got put away in prison. I call that justice. The financial backer, the co-founder, and the COO of DOS got short prison terms, which I call lenient. Others got away with their crimes and outrages, which perhaps may be too lenient.
Well written, A.S.
And then there are the seemingly endless chances to appeal.
There’s the delaying a day in court for years, option too.
And early release.
Chitra is innocent
Frank is innocent