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Plea Bargaining and the Innocent

The November 20, 2014 issue of the New York Review of Books included an article by U.S. District Judge Jed S, Rakoff, who sits in the Southern District of New York, titled: “Why Innocent People Plead Guilty.” In his long essay, Judge Rakoff identified and explored the incentives at work in the federal system that make the right to a jury trial and the right to counsel hollow promises for the majority of criminal defendants. “The drama inherent” in the Constitution, Judge Rakoff wrote, “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.”

We asked another federal judge with decades of experience with trials and plea bargains and sentencing, someone equally versed in the dance between prosecutor and defendant, to read Judge Rakoff’s critique and come up with one of his own. U.S. District Judge John Kane of Colorado is known in judicial circles for his candid assessments of practices and policies that shape our rule of law. And what he wanted to talk about after he read his colleague’s essay wasn’t so much plea bargaining as sentencing. In particular, he wanted to focus on the sentencing of people who are innocent but who have chosen to take plea deals for fear of being wrongfully convicted. Judge Kane’s response has been edited for space and clarity.

My friend Jed Rakoff writes, “How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent.” With over 2.2 million people in American prisons that is a haunting amount of injustice.

Combine those statistics with these, as Rakoff does. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the results of guilty pleas. As United States Supreme Court Justice Anthony Kennedy noted in 2012 in Missouri v. Frye“it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process.” If there is no trial, there can be no fair trial, Justice Kennedy asserts, and that means that this constitutional right, for most, is a myth.

Frye, and its companion case decided the same day, Lafler v. Cooper, place the burden of assuring effective assistance in plea bargaining not only on defense counsel, but on the prosecution and the court as well. But will this monitoring of the effectiveness of defense counsel do much to prevent innocent people from pleading guilty? I doubt it. The so-called trial court is not primarily a trial court at all. It is a plea bargaining court. And every courtroom actor in the drama, including federal trial judges, share some measure of blame for the injustice that follows from that1.

Defendants plead guilty for a variety of reasons: pleas to reduced charges result from an explicit agreement between the prosecutor and defense counsel in which both parties make concessions and explain the result to the hapless defendant and the offended victim. To use an economic analogy, plea bargaining establishes a “going rate.” The anticipated sentence is the central concern in the negotiation. The problem, however, is that both innocent and guilty defendants are placed in the same pot and the goal is to achieve the appearance of justice, not the realization of it.




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In the federal criminal system, the most litigated question is the defendant’s sentence and one cannot deplore the pervasive use of plea-bargains without also appreciating the pressures they place upon sentencing judges. These pressures have only been heightened over the past decade-- more prosecutions, more cases, more defendants, more pleas-- despite fundamental changes to the rules federal judges are supposed to use to determine sentences. First we had sentencing guidelines, then we had mandatory sentencing guidelines, and now again we have guidelines that are advisory. Each of these changes, whether imposed by the Supreme Court or Congress, has forced judges to reevaluate the means by which they dispense justice in cases where they have not seen any evidence or heard from any witnesses.

The nearly total number of defendants plead guilty to one or more charges, and the great majority of those who go to trial are convicted without much difficulty. What time they will serve is argued to the judge and on appeal (unless the right to appeal is waived in the plea bargain.) The criminal history of the defendant is a factor; so is all the defendant’s conduct, both relevant and distant; so is the damage and suffering endured by the victim. What is being sought is the character of the act and the people involved as opposed to a nameless and faceless set of numbers. In these ways, at a minimum, not the law but the persons before the court determine the sentence.

Sentencing should never be easy. It should never be cryptic and it should never be mechanistic, the product of senselessly following a matrix. A judge’s job is to synthesize and harmonize the competing narratives of the persons involved in the events of the crime with the specific intent of inclusiveness. That job stands in stark contrast to the mentality of the Sentencing Guidelines when they are mandatory. If, indeed, a judge now is again required by Supreme Court precedent never to impose a sentence he or she does not believe in, the chances of an innocent person pleading guilty and sentenced accordingly will be drastically diminished.

In this way the Supreme Court, through its recent rulings in United States v. Booker and Gall v. United States, has restored over the past decade a meaningful and responsible role to judges at sentencing. It is no longer acceptable for them to be wooden bureaucrats and they must craft sentences appropriate to the circumstances of the case. The searching inquiry required should enable the judge to vacate a coerced plea or one that is made as the lesser of evils. My question then is this: am I and my fellow jurists doing enough each day to implement this mandate, to replace the mindless practice of assembly-line plea bargaining with a process that is based on integrity and that aspires to justice rather than succumbs to the cynicism of convenience?

It is perhaps helpful to think of sentencing in terms of the classical Greek word for “injustice.” The literal translation is “out of balance.” Doing justice is an act of restoring balance. Human nature discourages venturing into this area without a template that allows one to fill in the blanks — and so to follow the rote responses of bureaucracy. But putting the thumb of convenience on the scales of justice is precisely what causes the innocent to plead guilty. It is the inevitable result of a laconic adherence to a thoughtless and passionless process. And we all can do something more about it

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