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April 29, 2014

"Why innocent people plead guilty": Judge Jed Rakoff suggests "tens of thousands of innocent people" have been "coerced into pleading guilty"

Judge-Jed-Rakoff-400x400The title of this post is drawn from this report via USC News summarizing a provocative recent speech given by Judge Jed Rakoff (which a kind reader alerted me to). Here are excerpts:

Rakoff, who sits on the Federal District Court in Manhattan, N.Y., spoke recently at the USC Gould School of Law’s Neiman Sieroty Lecture on “Why Innocent People Plead Guilty.”...

“The criminal justice system is nothing like you see on TV — it has become a system of plea bargaining,” Rakoff said. Today, only 2 percent of cases in the federal system go to trial, and 4 percent of cases in the state system go before a jury. As a result, accepting a deal from prosecutors — despite one’s guilt or innocence — has become a common choice for individuals accused of a crime.

“Plea bargains have led many innocent people to take a deal,” Rakoff said. “People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.”

What can be done? Rakoff said prosecutors should have smaller roles in sentence bargaining and the mandatory minimum sentences should be eliminated. “But to be frank, I don’t think, politically, either of those things is going to happen. … When it comes right down to it, I think the public really wants these high penalties, and that’s because when these harsh penalties were imposed [in the 1980s], the crime rate went down.”

Another more controversial solution is to allow judicial involvement in the plea bargain process. A judge who is not involved in the case could take a first pass at an agreement, working with prosecutors and defense attorneys. “What I have in mind is a magistrate judge or a junior judge would get involved,” Rakoff said. “He would take offers from the prosecutor and the defense. … He would evaluate the case and propose a plea bargain if he thought that was appropriate, and he might, in appropriate cases, say to the prosecutor, ‘You don’t have a case and you should drop it.’ This would be very difficult for the judiciary; it’s not something I come to lightly, but I can’t think of any better solution to this problem.”

Until extraordinary action is taken, Rakoff said little will change. “We have hundreds, or thousands, or even tens of thousands of innocent people who are in prison, right now, for crimes they never committed because they were coerced into pleading guilty. There’s got to be a way to limit this.”

April 29, 2014 at 03:53 PM | Permalink

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Researching the relationship of coroner/medical examiner, cause/manner of death to prosecution of innocents and non-prosecution of guilty. I would be interested in any statistics on the issue, or your thoughts on how to improve death investigation and training of first responders.

Posted by: Ray's Mom | Apr 29, 2014 10:18:10 PM

"accepting a deal from prosecutors — despite one’s guilt or innocence —
has become a common choice for individuals accused of a crime"

--Really, or simply for the guilty ones?

"Rakoff said ... and the mandatory minimum sentences should be eliminated. “

--How would this help prevent "tens of thousands of innocent people ... pleading guilty"?

"So it’s a system of prosecutor power and prosecutor discretion.
I saw it in real life [as a criminal defense attorney]"
--Put another warped way:
'So it's a system of greedy rich people with stuff they
don't deserve to keep. I saw it in real life [as a criminal burglar]'

Posted by: Adamakis | Apr 29, 2014 10:40:05 PM

Prosecutors are granted too much discretion and they should not be trusted with it. You can have 2 folks with no priors or not that much run in with the law with identical charges, depending on how the DA feels, or the person's gender or race, the DA has the power to either ruin the person's life, give them a second chance, or offer different plea deals, also the person's criminal defense attorney and how great he or she is not just in terms of head knowledge but connections and even experience with the local courts and even as a former DA if the DA either knows the attorney or gives him or her more leg-up in bargaining due to the fact that he or she was a DA.

In addition, if a person appears guilty of one of the charges, but many others are false, the defendant may figure he or she could lose at trial, so he or she will plead guilty to more than it appears or if charges are exaggerated, but it appears one count may stand given that DAs often charge defendants with all they can, ie multiple counts for a simple incident, it exacerbates the problem.

Unfortunately, despite out "democratic society", it appears this isn't going to change anytime soon, the only changes could be minor from courts and given certain judges are elected at the more local and state levels, and less changes from federal courts.

A possible fix would be to bar prosecutors from using multiple charges that would result in a sentence that is excessive for the crime. For instance in a simple possession of child pornography case, courts have upheld life sentences because the prosecutor charges a felony count for "Each image" or "Each video" regardless of the type of video (ie, teenage sexting, or actual child rape"). Of course that is almost as silly is someone burglarizes a house and steps in and out of the house multiple times, is that one burglary or several burglaries or a life sentence based on the number of items stolen, not the best parallel analogy but a sufficient one I say.


Posted by: alex | Apr 30, 2014 2:29:25 AM

What Adamakis doesn't know is a lot. If I had the time or inclination -- somewhere along the way I simply stopped trying to explain things to people who don't seem to want to understand things they obviously don't understand -- I'd provide a boat load of examples of exactly what Judge Rakoff was talking about.

But since Adamakis concedes he doesn't know how mandatory minimums help with coercing confessions, I'll offer this for his enlightenment: mandatory minimums are powerful levers. They enable prosecutors -- whenever even routinely harsh punishments don't do the trick -- to apply draconian charges as needed to bend even innocent people to their will.

Happens all the time...as Judge Rakoff accurately reported in his speech.

Posted by: John K | Apr 30, 2014 9:27:37 AM

John K.,
I am quite prepared to accept being educated and proven wrong about minimums:
I have no “pride” involved, nor self-esteem, no ‘dog in the fight.’

Simply put:
(1) Other than being a fixed-bottom penalty for a given conviction,
unambiguous, certain, and fully transparent, I see neither any
nefarious nor mysterious quality to Mandatory Minimums.

(2) M. Minimums are an effective rein on “how the [judge or] DA feels”,
requiring that the judiciary carries out the will of the people expressed
through their elected representatives.

Posted by: Adamakis | Apr 30, 2014 12:24:52 PM

Please, if the country would educate lawyers in an ethical way, there would be a better chance to fairness in criminal justice, but "ethics bureaus" at law schools are open 10 minutes a week while they clone scofflaws all day long. Integrity is not a hiring requirements for prosecutors, nor is the RULE OF LAW a goal post in the office, in which NOBODY TRUSTS GOD. The Mayflower passengers dropped the only copy of the best-seller : " ROMAN Nomocracy and the business of just governance" into the Atlantic, and never found another copy they liked. The country was ruined henceforth. 2,3 million are in jail, while no evidence suggests that Americans are more criminal than others. They just have more laws passed to catch-all, more hoosegows built for profiteering from the taxpayers.

Look, Courts are - according to some federal insiders - a magnet for bad people doing bad things, and it is altogether not un-American to bring money to the prison industry and invigorate the career. Bad characters are the result of melting pots.

Posted by: Heinrich v. Haplitz | Apr 30, 2014 1:47:51 PM

As someone who actually was innocent, and chose to go to Federal trial in 2011...I knew I faced up to a 20 year sentence for the charges brought against me if I were to be found guilty. I was acquitted of all charges. My spouse, also believed they were not guilty, and was convicted at trial. Again, there was knowledge of the possible sentence....but the alternative... to plead guilty... was just not something that could be done either. There was no plea offered in my case (nor are prosecutors required to offer a plea, per my research). Going to trial was the ONLY choice, it seemed---and the outcomes for both both of us were "extreme" given the statistics. Being acquitted of all charges at trial given 90%+ plead guilty is rare...and spouse got 25 year sentence which is equally "rare" given that 25 years is in the top 14% of ALL Federal sentences.
When you are going through this process (being accused of a Federal crime---believing you are innocent)---and you even LOOK at plea agreements you would be forced to sign ---it just makes you want to die. Not only that, I was reading these crazy write ups by the Government of all this...stuff...crimes....I was supposed to have done. In the nearly 18 months between my indictment and trial, I actually would start "drinking the kool-aid" on some days and thinking I might be found guilty when I went to trial! (the evidence the Gov had against me was all circumstancial....would that be enough? would I have to leave my
children? would I forever be branded a felon? Maybe there is a way to make this all go away?) THAT is something that was getting to me....the constant intense pressure you are under (I was told I was a "target" in 10/08---and was not acquitted until 5/11)---that day after day after day pressure is intense...I could see someone who IS innocent, with advice from counsel about what would happen if the trial went badly...and being offered a short sentence thinking..."that wouldn't be so bad"...just to try and get some closure...to know what the outcome would finally be. I know it at least crossed my mind.

Posted by: folly | May 1, 2014 8:33:28 AM

I got excited by the first half of this article. Here was a prominent judge who advocated for greater accuracy and a lower rate of false positive outcomes. Thank you, finally.

The I got to the real aim, in the second half. Not improve the Rules of Evidence, not improve methodology, not involve seasoned investigators, not revise the operation of the jury, to limit the voting to the first secret ballot, not make seasoned judges invstigative j.

No, none of those self evident response to the appalling false conviction rate.

No. The remedy? More government make work jobs for judges, the very same one responsible for the appalling rate of false convictions, but after they are older, more demented and even more rigid in,their thinking, even bigger dumb asses than they were on the bench.

Posted by: Supremacy Claus | May 1, 2014 2:41:16 PM

Part One. Greetings to all. For years now, we have been reading posting after posting regarding 'Plea' Bargaining and where in the Hell has it gotten us (we the public at large)? That's right, you guessed it, we are still talking this shit to death, since it's been all talk and no actions. Don’t take it the wrong way, I’m happy that a Federal Judge has grown a pair of legal balls, (or maybe he’s human and his conscious simply got to him and interfered with his sleep?) and decided to take his corruption concerns to the streets. Which is why, I’m inviting him to visit the nation’s appendix aka: ‘Texas’ to learn about the “Texas TapOut” and a one-of-a-kind method utilized in the Judge’s Chambers but documented as being conducted in OPEN COURT (but, seems to never make it into speeches). I guess I'll be the one that lets him know that his idea could use some tweaking.

Yes, you read it correctly (I said, "Hell, Shit & Balls so far"). You see, the victims of the system (VOTS) have grown sick of the candy coatings and subsequent watered down descriptions of 'corruption' being documented and re-published simply as - 'Misconduct' or ‘Bargaining’. Those unlucky enough to be Indicted, should 'not' be allowed to have three choices. You are either: Guilty, or Not. From there, it should be left to the jury and the evidence. The very moment they embraced the art of nolo contendere aka: the Texas TapOut, the police simply arrested at will and let the courts deal with Guilt or Innocence via: both hired and appointed criminal defense attorneys. The very moment they allowed FAKE CDLs to infiltrate the niche un-opposed, the profession as a whole quickly slid off the slippery slope as the inmates turned defendants were ‘advised’ to avoid, or stop a jury trial in progress - simply for being on probation at the time of arrest on new unrelated charges. They don’t call this hokie pokie - one foot in & one foot out for nothing. They also don’t call it an investigation when none was conducted. Bring in a bench fitted for three judges (one to keep an eye on the other two) and force everyone that pleads - Not Guilty to go the distance (all the way to a verdict that's rendered by the jury right then and there). Too easy? Thanks.

Posted by: Thomas R. Griffith | May 1, 2014 5:40:52 PM

"Rakoff said ... and the mandatory minimum sentences should be eliminated. “

--How would this help prevent "tens of thousands of innocent people ... pleading guilty"?

Thank you for posting this. It is terrifying that some people do not understand the link between mandatory minimum sentences and coercing innocent people into pleading guilty. The solutions include: repealing state laws mandating minimum sentences and prosecuting prosecutors for coercion (a felony where I live) who overcharge people with crimes with mandatory minimum sentences to coerce them into pleading guilty.

A Federal judge who deserves to be called "your honor" Never seen that before.

Posted by: Jennifer Johnson | May 1, 2014 6:09:14 PM

Do you have a copy of the actual lecture?

Posted by: papa bear | May 4, 2014 4:32:14 PM

I am not a professional or student in law. I have been personally affected by this and I have seen this happen to a truly innocent loved one who couldnt afford to fight the battle. The prosecutor threw the "conspiracy" charge at him and told him even if there was reasonable doubt and very little evidence, he would still lose and needed to plea. This scared him. He didnt want to waste away in prison and lose the chance to watch his children grow up. It makes me horribly sad and sick to my stomach. He will live with this mark on his back forever. Isn't there something we can do about this?

Posted by: jennifer | May 8, 2014 9:42:34 AM

I am a concerned citizen who has seen how the intimidation tactics inte federal court system can destroy a life and a family. They get people to cooperate and say whatever about anyone they can include to bring about as many cases to get their stats up. Many cannot afford attornies that will really fight their case. Instead the defense attornies push the plea deals regardless if the defendent is innocent of not. People are brought into cases just for being around or associated with the wrong people. Here is a link for a petition for one of the wrongfully convicted that would not take a plea because he was innocent and he was given LIFE! The person that cooperated and admitted to the same crimes the defendent was charged with and about ten other crimes was offered time served based on the outcome of this case. Please support this man and sign the petition.
http://www.change.org/petitions/the-innocence-project#

Posted by: Lynda | May 25, 2014 12:54:59 PM

Lazy, worthless lawyers are the biggest part of this mess. They do little to no work (not an exaggeration) and force innocent people to take the plea deals. They wait 'til the very last second and tell you, "You WILL BE found guilty if you don't take the deal". And now, with moments before you have your turn in court, you realize you are in a jam with a worthless lawyer and a deal is the lesser of the options. There should be a way to check lawyers' performances, Yelp for lawyers. It's happened to me twice, I go door-to-door through the various system offices and no one will give me the time, they all know and they all let it continue.

Posted by: blair21014 | May 30, 2014 12:01:35 PM

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