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February 29, 2016

Highlighting the enduring lack of transparency about pleas and the work of prosecutors ... and the problems this may create

The folks at The Crime Report continue to do a lot of notable reporting about a lot of the notable issues discussed at the recent Harry Frank Guggenheim Symposium on Crime in America at John Jay College of Criminal Justice.  This recent piece, headlined "A 'Draconian' System Where the Innocent Plead Guilty," reports on a keynote speech by Judge Jed Rakoff and discussion of the need to bring more light to the dark spaces of plea bargaining and prosecutorial practices. I recommend the piece in full, and here are some excerpts:

The U.S. criminal justice system is broken and needs to be fixed is a message you rarely hear from a well-respected senior federal judge. But that’s exactly what Judge Jed Rakoff of the Southern District of New York detailed during a keynote address at the 11th Annual Harry Frank Guggenheim Symposium on Crime in America at John Jay College of Criminal Justice on Friday

“We created this monster and it’s taken on a life of its own,” said Rakoff, speaking critically of judges who everyday impose “terrible sentences” and send people to prison for extremely long periods of time without questioning the system....

Rakoff detailed how he’s seen the system change in the past few decades, from a time where a much higher percentage of court cases went to trial (15 percent of court cases at the federal level 20 percent at the state level) to now where, after tough-on-crime laws swept the nation, only 3 percent of federal cases, and 5 to 6 percent of state cases, go to trial.  The rest are settled with plea bargains.  He called the plea bargaining process a “system of totally secret justice” where prosecutors, hold all the cards and are able to get a vast majority of defendants to plead guilty to charges when faced with extremely long sentences — imposed through sentencing guidelines or mandatory minimums.

Julie Seaman, a professor at the Emory University School of Law and Board President of the Georgia Innocence Project, said it’s now a system where “it’s completely rational for an innocent person to plead guilty,” because there is so much risk involved in going to trial.

The panel — also featuring Keir Bradford-Gray of the Philadelphia Defender Association, Matthew Johnson of John Jay College, exoneree Rodney Roberts and moderated by John Hollway, executive director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School — detailed problems of this “assembly-line” style form of justice where police are under pressure to solve cases quickly, prosecutors are under pressure to clear cases and public defenders are overworked and under resourced.

And it’s all done behind closed doors, they say, away from public scrutiny.  “This is a system, because it’s so totally un-transparent, is it inevitably going to lead to some serious mistakes,” Rakoff said.

There has arguably never been more data and more transparency in the U.S. criminal justice system than there is now.  Researchers, journalists, politicians and the public have more access to data on prison and jail populations, as well as crime statistics including the number of reported crimes and arrests.  That data has played a large part in changing peoples’ minds about mass incarceration — and arguably without that data, you wouldn’t see elected officials of both parties rolling back sentencing laws. But data doesn’t exist for plea deals, which is where the decisions that dramatically impact millions of lives are made.  There is a plethora of information available to the public on how offenders enter the system and where they end up, but missing is information on what happens in the middle.

Rakoff says this is a problem that has fueled mass incarceration – and also because when innocent people decide to plead guilty in order to avoid long sentences, we never know the truth. He said there is too much disparity in pleas that are offered and we don’t know enough about what goes on behind closed doors. “No one ever knows what the truth is, no one ever knows what the facts are,” Rakoff said.

February 29, 2016 at 02:30 PM | Permalink


A problem I have noticed is that public defenders seem to be less capable than they used to be of being effective advocates, probably because they don't get enough trial practice (which should be taught even before the first case)because almost all criminal cases are plea bargained.

In my city of almost 50,000 people, there are only "one or two jury trials a year" (quoting a judge in January 2016, when thanking a jury for their service).

Posted by: Daniel Quackenbush | Feb 29, 2016 10:57:52 PM

I am unaware of any prosecutor that has upheld their Oath of Office to the people.

I am unaware of any Grand Jury that knows / learns what their duty is to the people.

I am unaware of any District Jury that knows their rights as a jury.

Would like to be enlightened!

Posted by: LC in Texas | Mar 1, 2016 6:16:29 PM

My spouse accepted a plea bargain because i did not want to risk our family, loosing would be too great; 40 years was a possibility. I could handle 1 maybe even more but not 40! He was told that his plea would result in maybe a year or home confinement and self surrender. He was taken from the courtroom and sentenced to 60 months. In hindsight we see where his PD, the prosecution and the judge had already decided his sentence before he plead. The impression we are left with is that he was deliberately mislead so that he would plea. He would have gone to trial if the plea deal was of any length. We may be wrong in our impression, however , as the system is now set up we will never know.

Posted by: The wife | Mar 2, 2016 5:55:04 PM

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