After serving as a criminal defense attorney, federal prosecutor and now United States District judge, the Hon. Jed Rakoff knows what works — and what doesn’t — in the criminal justice system.
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 annual talk is named for Allen Neiman ’56 and Alan Sieroty ’56, who were former classmates and law partners.
“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.”
Taking such a bargain is arguably rational behavior for defendants. Even if they think that they are very likely to be proven innocent, the cost-benefit analysis says to take the shorter prison term, rather than run the horrible risk of a much longer one.
Rationality, though, doesn’t mean that they are telling the truth or that they are really guilty. It means that they are trying to live their life in a condition of extraordinary duress, in which lying might actually seem the least bad alternative. In this they are much like the victims of torture, from whom the truth can’t be reliably expected. Just as a tortured individual will readily confess to false and even impossible things, individuals offered a plea bargain will try to make the best of a terrible situation.
As it has often been said, either the United States imprisons way too many people, for way too long, or else we are the most evil industrialized nation on earth. Prison has become our answer for everything; it has become the one penalty we apply to all problems. Worse, prison has become a social status as well as a penalty of limited years: Former prisoners are denied voting rights. They face reduced employment opportunities, facilitated by the maintenance of criminal records. They are deliberately isolated from family and community in the social services and family court systems. Prison and its consequences are becoming a caste system.
Prison promises to answer all sorts of social problems, or at least to render them invisible. In the form of the plea bargain, prison proposes in effect to establish guilt and innocence as well: Threaten someone with prison, and they will confess, and then we will give them (what else?) prison. Are they guilty? (Does it matter?)
Consider that the length of the sentence that might result from a trial plays a big part in determining whether an individual agrees to a plea bargain. And yet the length of the sentence has absolutely nothing to do with the actual guilt or innocence of the accused. His guilt or innocence lies in the past and can’t be changed at all anymore. Yet we readily tolerate procedures for finding guilt and innocence that are sensitive to a wholly unrelated variable.
This ought to shock us, but it doesn’t. It ought to disgust us, not simply for the human cruelty of it, but for the violence it does to the truth. If scientists sought truth this way, we would despise them. Why do we tolerate it elsewhere?