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November 3, 2014

Judge Rakoff highlights prosecutorial sentencing power in explaining "Why Innocent People Plead Guilty"

Download (2)Regular readers know that US District Judge Jed Rakoff has become a prominent regular critic of many aspects of the modern federal criminal justice system. In the latest issue of The New York Review of Books, Judge Rakoff provides an astute and effective review of how prosecutors have come to possess considerable unregulated sentencing powers in our modern system dominated by plea bargainiang.  His lengthy article's title, "Why Innocent People Plead Guilty," spotlights one key aspect of Judge Rakoff's concerns with the current system.  But, as these passages reveal, his central theme in this must-read piece is unregulated prosecutorial powers:

The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”  The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict.

The drama inherent in these guarantees is regularly portrayed in movies and television programs as an open battle played out in public before a judge and jury. But this is all a mirage.  In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight.  The outcome is very largely determined by the prosecutor alone....

Until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved — unless, of course, the defendant was willing to enter into a plea bargain.  If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge — but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources).  Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.

In this typical situation, the prosecutor has all the advantages. He knows a lot about the case (and, as noted, probably feels more confident about it than he should, since he has only heard from one side), whereas the defense lawyer knows very little.  Furthermore, the prosecutor controls the decision to charge the defendant with a crime. Indeed, the law of every US jurisdiction leaves this to the prosecutor’s unfettered discretion; and both the prosecutor and the defense lawyer know that the grand jury, which typically will hear from one side only, is highly likely to approve any charge the prosecutor recommends.

But what really puts the prosecutor in the driver’s seat is the fact that he — because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges), and simply his ability to shape whatever charges are brought — can effectively dictate the sentence by how he publicly describes the offense.  For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.

Long-time readers know that this article gets to the heart of debates that Bill Otis and I have often had over the virtues and vices of mandatory minimum sentencing provisions. Because Judge Rakoff comes down on my side of this debate, few should be surprised to hear that I am a big fan of this article (though I wish Judge Rakoff had also discussed and lamented how acquitted conduct sentencing rules in the federal system further enhances prosecutors' charging/plea/sentencing powers).

Prior related posts on Judge Rakoff's commentaries:

November 3, 2014 at 12:31 PM | Permalink


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Doug, the biggest change I have seen in forty years is the shift of power from judges to prosecutors over sentencing. That power has led to many defendants taking guilty pleas instead of going to trial because the downside risk is enormous and dictated by the district attorney.


Posted by: bruce cunningham | Nov 3, 2014 12:46:27 PM

I agree with both Doug and the judge on this score but I would make two salient points. First, while I agree that prosecutors are overpowered we should be wary of reforms that are proposed willy nilly. Society overreacts, then it overreacts to the overreactions, in a cycle of suck. "Revolutions are the only salves but they are things best done by halves." Robert Frost. The second issue is that we need to look at the underlying causes of this transfer of power:it has been a movement from a system of justice to a system of law. The first places an emphasis on evidence-based outcomes while the latter values efficiency above all else. And until the cultural causes of this transfer of power are addressed we are simply spitting into the winds of the zeitgeist.

Posted by: Daniel | Nov 3, 2014 1:59:25 PM

Bill Otis had a rather scornful view of defense attorneys. I was not that surprised. The guy's life work was being a prosecutor. Gets you, though some manage to do so with a bit more balance than he at times provided, a certain ethos. The same who come at it from a life of being a defense attorney. The system ideally balances both sides with the judge overseeing things. But, then, your average judge is much more likely to come from a prosecutor background ...

Posted by: Joe | Nov 3, 2014 2:03:30 PM

"Until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved — unless, of course, the defendant was willing to enter into a plea bargain."

Actually, that was not the policy. The policy (a/k/a the "Ashcroft memo") required prosecutors to both charge and accept a plea to the most serious readily provable offense. If I recall correctly, prosecutors were not allowed to dismiss the most serious charge in return for a plea to a lesser charge except in rare circumstances.

One other point---Judge Rakoff apparently does not know (sarcasm) that he is allowed to reject plea agreements. Indeed, he has an obligation under the law to ensure that the defendant is in fact guilty of the crime to which he is pleading. (See Rule 11). Additionally, Judge Rakoff has the sole authority to reject a plea if he doesn't like it. If he thinks there should be more trials, then stop accepting plea agreements. If he thinks innocent people are being coerced into pleading guilty, then stop accepting plea agreements.

Posted by: Anon | Nov 3, 2014 2:16:06 PM

Basically the fderal system was a pound it and paint type affair.

The probation officer and Ausa pound it to smitherines and the judge paints it so its legal and final. Walla, anither life down the toilet.

Acquitted conduct, uncharged relevant conduct, the mm and drug qty chart are what buries lives.

Down the road they need to fix supervised release. Its also way over done. They rake your criminal history cat and that is your range when you mess up. And most will, they just been warehoused for so long they cannot handle the new freedom.

Oh well, thats my .02 worth.

Posted by: 187Midwest Guy | Nov 3, 2014 2:38:59 PM

"he has an obligation under the law to ensure that the defendant is in fact guilty of the crime to which he is pleading"

I note this section of the article:

But sometimes the situation is reversed, and the client now lies to his lawyer by saying he is guilty when in fact he is not, because he has decided to “take the fall.”

In theory, this charade should be exposed at the time the defendant enters his plea, since the judge is supposed to question the defendant about the facts underlying his confession of guilt. But in practice, most judges, happy for their own reasons to avoid a time-consuming trial, will barely question the defendant beyond the bare bones of his assertion of guilt, relying instead on the prosecutor’s statement (untested by any cross-examination) of what the underlying facts are.

I take from this in part that the judge here realizes his obligation to determine if the guilty plea was honest.

"Judge Rakoff has the sole authority to reject a plea if he doesn't like it. If he thinks there should be more trials, then stop accepting plea agreements. If he thinks innocent people are being coerced into pleading guilty, then stop accepting plea agreements."

The article concerns how things work generally speaking, not just the actions of a single judge. Nonetheless, opposition to some policy that reduces trials alone would not seem to me to be enough here -- if Congress democratically passes a policy, the judge would be pressured to follow it unless there was some constitutional concern about fair trials that would lead them to go challenge it.

A general concern about innocence or good criminal policy would also have to be balanced with rejecting what the defendant claims to want, often after realistically determining that going to trial would result in more punishment. I guess the judge can be all "may the heavens fall, I'll act all the same so justice will prevail," though if the result is that specific defendants can have years more in prison because they were not able to make a plea deal, it might be a tad hard.

As would a single judge trying to fight a general plea policy. Just stop accepting pleas sounds like a naive suggestion especially when it is simply a bad idea since pleas make some sense in lots of cases. And, to the extent that things start with the offer and prosecutorial discretion, a single judge has even less power here.

Posted by: Joe | Nov 3, 2014 3:02:36 PM

Another factor that keeps the system from being balanced is that outside of the federal system the defense attorney is often much worse trained/credentialed and much worse paid than the prosecutor. And the prosecutor always works out of an institutionalized office with economies of scale, etc. In many jurisdictions, defense counsel are appointed case-by-case and are essentially just a group of solo practitioners who chat in the halls of the courthouse and maybe have an online message board or something where they occasionally share information.

Posted by: anon2 | Nov 3, 2014 3:55:50 PM

Anon2, I live in a state where assistant county prosecutors make about $40,000 per year. I have a hard time believing the defense attorneys on the other side are "much worse paid." The defense attorneys I know drive fancy cars, the assistant county prosecutors I know drive the Hyundai they had in law school.

Posted by: Response | Nov 3, 2014 8:10:04 PM

Anon2 is referring to Federal prosecuters, not run of the mill local yocal assistant DA.
Big difference. The feds have a huge team and virtually have unlimited resources to buy or threaten witness's.

Posted by: 187Midwest Guy | Nov 3, 2014 10:21:31 PM

This weasel is merely calling for a return of power to the judges. The latter caused a massive crime wave when they had it.

No mention of the self evident. Prosecutors have many duties to defendants enumerated in the statutes covering the Rules of Conduct, of Evidence and of Criminal Procedure. These per se duties render them civilly liable to defendants when their carelessness causes a defendant damages. Because punishment is the sole tool in question, their liability qualifies as strict liability because of inherent dangerousness in ordinary use.

The Supreme Court has repeatedly granted absolute immunity, even from intentional torts. That is an abomination that explains the pathology of these awful people. These are the people that will spend $millions going after Martha Stewart to get into the papers on a $100 beef, and allow massive criminality to breed everywhere.

I have argued in formal logic that the contra-positive of a true assertion has to be true. So if one believes torts liability is a substitute for violence, then violence should visit the torts immune.

Posted by: Supremacy Claus | Nov 4, 2014 3:05:13 AM

187 Midwest Guy--
First, Anon2 was not talking about federal prosecutors--the post specifically says "outside of the federal system."
Second, in the federal system the federal public defenders are incredibly talented lawyers who, by statute, pretty much make the same as AUSAs. As for court appointed lawyers, in the federal system court appointed lawyers make good money. In many districts, federal CJA lawyers make around $120 per hour.

Posted by: Response | Nov 4, 2014 8:18:48 AM

Yeah, I agree about the feds. Although the prosecutors have good pay and crazy resources, the federal defenders also make a decent living.

I also understand that line prosecutors in many places don't make much. But in the places I'm familiar with (mostly the southeast), the lawyers representing the indigent defendants are generally even worse off. There may be a few guys with their names on billboards who make a good living off of the small proportion of criminal defendants who can afford to pay for a lawyer, but the rest are struggling, whether in PD offices or as appointed counsel. If a defense attorney is making any kind of bank off of indigent defendants, you can bet they are doing it by running a plea mill with little actual advocacy.

I also think it is generally true that the prosecutor's office has an easier time attracting talent, regardless of pay. That office is often a stepping stone to other things (firms, local politics, community stature), whereas representing indigent defendants is a stepping stone to squadoosh.

Posted by: anon2 | Nov 4, 2014 2:16:13 PM

As Judge Rakoff knows, he can rejet a Rule 11(c)(1)(C) plea and allow the defendant to go to trial. Like so many federal judges, Judge Rakoff attempts to divorce himself from the reality that the judiciary plays a sizeable role - as is proper - in the federal criminal process. Moreover, if Judge Rakoff believes that he is allowing "innocent people" to plead guilty, then he is not only failing to comply with the dictates of Rule 11 but is violating is professional and ethical obligations. I also do not understand his complaint with respect to why prosecutors should not charge the most readily provable offense if they go to trial. Is that unfair? Is it unfair only for certain cases? And why are defense attorneys immune from any critcism? Don't they too (along with judges) have ehtical, professional and moral obligations not to allow innocent people to plead guilty?

There are also just outright factual misstatements: "sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges)" Doug you should know better than anyone that this isn't true - not unless we say that because approxiamtely 50% of sentences that fall within the Guidelines range means "most" do. This is a bit dated, but here's one example regarding the number of offenders sentenced within a Guidelines range:

"Sentence Position Relative to the Guideline Range
In 2009, 56.8 percent of cases were sentenced within the applicable guideline range, compared with 59.4 percent in 2008. Above range cases accounted for a total of 2.0 percent of all cases, and all below-range cases accounted for 41.2 percent. Of all cases sentenced below the applicable guideline range, 25.3 percent were sentenced below the guideline range based upon a ground sponsored by the government. An additional 15.9 percent of cases otherwise were sentenced below the guideline range, compared with 13.4 percent in 2008."

Posted by: PapaBear | Nov 5, 2014 10:04:41 PM

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