Monday, November 3, 2014

The Honorable Jed Rakoff on Why Innocent People Plead Guilty (11/3/14)

Judge Jed Rakoff, a pre-eminent jurist (Wikipedia entry here), has this great article in the New York Review of Books.  Jed S. Rakoff, Why Innocent People Plead Guilty (New York Review of Books 11/20/14 Issue), here.  I would not even attempt to try to summarize Judge Rakoff's powerful development of the thesis presented here.  I can only present some excerpts that, I hope, will encourage practitioners and students to read and fully digest the whole article.
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. 
To the Founding Fathers, the critical element in the system was the jury trial, which served not only as a truth-seeking mechanism and a means of achieving fairness, but also as a shield against tyranny. As Thomas Jefferson famously said, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” 
* * * *  
In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed.' 
* * * * 
The practice of plea bargaining never really took hold in most other countries, where it was viewed as a kind of “devil’s pact” that allowed guilty defendants to avoid the full force of the law. But in the United States it became commonplace. And while the Supreme Court initially expressed reservations about the system of plea bargaining, eventually the Court came to approve of it, as an exercise in contractual negotiation between independent agents (the prosecutor and the defense counsel) that was helpful in making the system work. Similarly, academics, though somewhat bothered by the reduced role of judges, came to approve of plea bargaining as a system somewhat akin to a regulatory regime. 
* * * *
In addition to mandatory minimums, Congress in 1984 introduced—with bipartisan support—a regime of mandatory sentencing guidelines designed to avoid “irrational” sentencing disparities. Since these guidelines were not as draconian as the mandatory minimum sentences, and since they left judges with some limited discretion, it was not perceived at first how, perhaps even more than mandatory minimums, such a guidelines regime (which was enacted in many states as well) transferred power over sentencing away from judges and into the hands of prosecutors. 
One thing that did become quickly apparent, however, was that these guidelines, along with mandatory minimums, were causing the virtual extinction of jury trials in federal criminal cases. Thus, whereas in 1980, 19 percent of all federal defendants went to trial, by 2000 the number had decreased to less than 6 percent and by 2010 to less than 3 percent, where it has remained ever since. 
The reason for this is that the guidelines, like the mandatory minimums, provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains. In the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that, at the outset, she is at a considerable informational disadvantage to the prosecutor. If, as is very often the case (despite the constitutional prohibition of “excessive bail”), bail is set so high that the client is detained, the defense lawyer has only modest opportunities, within the limited visiting hours and other arduous restrictions imposed by most jails, to interview her client and find out his version of the facts. 
* * * * 
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. 
The defense lawyer understands this fully, and so she recognizes that the best outcome for her client is likely to be an early plea bargain, while the prosecutor is still willing to accept a plea to a relatively low-level offense. Indeed, 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 sixteen years. 
* * * * 
Though there are many variations on this theme, they all prove the same basic point: the prosecutor has all the power. 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: it is much more like a “contract of adhesion” in which one party can effectively force its will on the other party. 
As for the suggestion from some academics that this is the equivalent of a regulatory process, that too is a myth: for, quite aside from the imbalance of power, there are no written regulations controlling the prosecutor’s exercise of his charging power and no established or meaningful process for appealing his exercise of that power. The result is that, of the 2.2 million Americans now in prison—an appalling number in its own right—well over two million are there as a result of plea bargains dictated by the government’s prosecutors, who effectively dictate the sentences as well. 
A cynic might ask: What’s wrong with that? After all, crime rates have declined over the past twenty years to levels not seen since the early 1960s, and it is difficult to escape the conclusion that our criminal justice system, by giving prosecutors the power to force criminals to accept significant jail terms, has played a major part in this reduction. Most Americans feel a lot safer today than they did just a few decades ago, and that feeling has contributed substantially to their enjoyment of life. Why should we cavil at the empowering of prosecutors that has brought us this result? 
The answer may be found in Jefferson’s perception that a criminal justice system that is secret and government-dictated ultimately invites abuse and even tyranny. Specifically, I would suggest that the current system of prosecutor-determined plea bargaining invites the following objections.
You can take it from there.  Read Judge Rakoff's objections -- indeed read the whole article for the development in context.


  1. Big defeat and blow for DOJ ! The jury took only 75 minutes to reach its verdict after a 3-week trial that ended abruptly on Monday when Weil's defense team decided not to call any witnesses, saying the government had failed to make its case !!

    I hear that Schumacher and Liechti are facing possible trial in CH now to stop this ever happening again that swiss bankers testify against each other in a US court with regards to swiss banking secrecy laws !!

  2. ..."the U.S. Justice
    Department which spent 6 years seeking to prosecute Weil,
    including extraditing him from Italy last year..." As a US taxpayer I really would like to know how many of my tax dollars were wasted in this failed and overblown effort ! We have according to Caplin and Drysdale annually over 20 million tax cheats at home which imo. deserve more attention.

  3. How strong was the case if (according to the Guardian), Weil did not testify and his defence put no witnesses on the stand?

  4. Mark Daly and Jason Poole did a very poor job ! Liechti was not a credible witness and the real criminal in this case.

  5. big blow and disgrace for DOJ !
    Raoul Weil is again a free man

  6. Thanks for posting this excellent article. It has broad implications for our entire society. This calls into question the founding principle that an adversarial system in the courtroom is more likely to bring out the truth. It may work in civil court, but criminal court needs more checks and balances to counteract the prosecutor's huge advantages.

  7. I wonder why the prosecutor would continue on this case given how weak his evidence was. I'm assuming that the evidence was very weak because the jury verdict was so quick and the fact that the defense didn't think it necessary to even call its witnesses. Was the prosecution lawyer so out of touch with reality or was he just incompetent?
    When I was in college in the US, a fellow student was arrested and charged with 2 felonies and several misdemeanors. The details of the case are too complicated to go into without making this into a very long comment. Basically, he was innocent but the officer charged him with everything he could think of beyond reason. His lawyer explained this all to the prosecution and they offered a deal. He could plead guilty to one misdemeanor and the rest would be dropped. The only penalty would be a very small fine. His lawyer told him he was almost 100% certain he would win the court case but it would require a $15,000 retainer and the trail would end up costing several 10s of thousands for various reasons. So, he had to make a business decision. Pay a small fine and it was all over.
    The American legal system seems to have degenerated into a farce. The innocent plead guilty. The guilty get off lightly. The prosecution makes sweetheart deals with criminals to get them to testify in the prosecution's favor. Guys on Wall Street and corporations get away with all sorts of things. The IRS looses emails and has the good fortune to have all relevant computers crash. Everybody lies to Congress and the NSA is illegally spying on everybody in the world including head of states of their supposed allies. On top of that, every time I turn on the television, I see commercials for Judge Judy :)
    All the Americans that I know seem to be good people. I'm not sure how they allowed their government to get so out of control.

  8. I would suggest that part of the reason is the unpredictability of trial outcome (defendants in similar situations receiving very different outcomes.) The unpredictability also means that lawyers are unwilling to risk representing a client who gets a very bad result and prefer to give the predictable outcome of plea bargain (same reason why lawyers are so careful in recommending optout except in the most clearcut cases.) Then there are the costs which are unpredictable and can be huge if the government puts up a big fight. There are the years of emotional stress between hope and despair, which can be longer than the time spent in jail/prison.
    One comment on the language in the article: counsel is a "she" and defendant is a "he." I believe it far better to use "he" which is traditionally meant to encompass both sexes in such a context.

  9. I am not familiar with the individuals and have never had any dealings with UBS.
    However, it seems a stretch to say that if UBS had 17,000 account holders, that it conspired with all, or even a majority of them. It's likely that the distribution of account balances was typical of any bank, a lot of very small accounts, with very few large ones, and most accounts not used for nefarious purposes.
    My experience until recently has been that if someone wanted to open an account at a Swiss bank, and if the person had the required identification and minimum balance, the account was opened. I have never been solicited to open a Swiss account or had bankers offer to meet in the US or engage in any other such shenanigans.
    If someone buys a car, a knife, or a gun in the US, the seller doesn't inquire how it will be used and whether for legal or illegal purposes.


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