Innocent people do plead guilty as discussed in an earlier post, Do Innocent People Plead Guilty? In a compelling essay published in the New York Review of Books U.S. District Judge Jed Rakoff, himself a former federal prosecutor, examines the reasons and grounds for this injustice: Why Innocent People Plead Guilty. Here's some observations and points from Judge Rakoff's essay:
- "The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes."
- In 2013, fewer than 3% of all federal criminal charges went to trial. In 1980, 19% of all federal defendants went to trial.
- "It is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision."
- "in 2012, the average sentence for federal narcotics defendants who entered into any kind of plea bargain was five years and four months, while the average sentence for defendants who went to trial was 16 years."
- "The Supreme Court's suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth."
- Our Constitution includes numerous provisions intended to assure a fair criminal justice system "and were put there because of the Founding Fathers'experience with the rigged British system of colonial justice. It is not the plea bargain system we have now substituted for our constitutional ideal similarly rigged?"
- "the prosecutor-dictated plea-bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed."
- "How prevalent is the phenomenon of innocent people pleading guilty? The few criminologist who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2% and 8%. The size of that range suggests the imperfection of the data; but let us suppose that it is even lower, say, no more than 1%. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit."
Judge Rakoff's proposed solution is to involve judges in the plea-bargaining process, a role that is prohibited for district judges by rule in the federal system, so the proposal is to have federal magistrates involved essentially as mediators in the plea bargaining process. This is a modest step and one that raises a myriad of concerns, as Judge Rakoff acknowledges. It is a plea from one with a front row seat and a clear-eyed view of the destruction done daily by the federal criminal justice system.