Why the Innocent Plead Guilty and the Guilty Go Free
and Other Paradoxes of Our Broken Legal System
by Judge Jed S. Rakoff
Farrar, Straus and Giroux (Feb. 2021)
Paperback 208 pages $17; eBook, $14
Reviewed by Gila Hayes
An Internet search to learn more about what has been called the “trial penalty” led me to a book written by a New York federal district judge, whose résumé also includes work as a prosecutor and a defense attorney. Reading Why the Innocent Plead Guilty challenged me to put aside my own beliefs and dig deep for the bigger lessons identified by a judge who has served for a quarter of a century. When we only read books by authors we agree with, it is too easy to echo their opinions and feel smart and righteous. For me, this month’s review is practice doing otherwise.
Judge Jed S. Rakoff asks rhetorically how we can believe we have a healthy, working system of justice when American incarceration rates are disproportionately high, anti-terrorism efforts excuse huge constitutional violations, jury trials have “all but been eliminated,” and, “Finally, how can we tout our system of civil justice as a remedy for wrongs when the great majority of Americans cannot afford to go to court at all, and are often kept out of court even when they wish to avail themselves of its benefits? In these and other important ways, our system of justice is failing its mission.”
Judge Rakoff writes that for fifty years, legislation focused on mandatory minimum sentencing, limiting bail options, and life imprisonment for repeat offenders. He cites academic studies debunking correlation between lower crime rates and higher rates of incarceration. “Why, given the great decline in crime in the last quarter century, have most of the draconian laws that created these harsh norms not been repealed or at least moderated?” he asks. He blames anti-drug and anti-terrorism campaigns, prosecutors who overcharge defendants and slams citizens who vote in tough-on-crime candidates for “being resentful of those who question their motives and dispute their intelligence.” I have to admit he accurately captured my reaction! The book challenges the reader to explore if incarceration is the “best response to social misconduct.”
After having some trouble swallowing the first chapter, my attitude changed during chapter 2, Why Innocent People Plead Guilty, the subject which originally drew me to read the book. The Founding Fathers envisioned impartial jury trials to uncover the truth, shield the citizen against tyranny and do so in a timely manner, Rakoff writes. Conversely, today nearly all criminal charges are “negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone.” He blames sentencing guidelines and mandatory minimum sentences for the prominence of plea-bargaining and “the virtual extinction of jury trials in federal criminal cases.”
Refuse to plead and you’ll face the most severe punishment sentencing guidelines impose, he continues. “Indeed, for several decades now, prosecutors in many jurisdictions have been required by their superiors to charge the defendant with the most serious charges that can be proved—unless, of course, the defendant is willing to enter into a plea bargain.” He illustrates, “In the past decade, the average prison sentence for federal narcotics defendants who entered into plea bargains has been around five years, while the average sentence for those few federal narcotics defendants who exercised their right to trial but were found guilty has been in excess of fifteen years—an average ‘trial penalty’ of ten years in prison.”
Defendants who are impoverished, have a criminal history or fear racism to the extent that they “may find it ‘rational’ to take the plea” upon recognizing that “even if he is innocent, his chances of mounting an effective defense at trial may be modest at best. His experiences with the criminal justice system may also have made him cynical about its objectivity, particularly if he is a person of color,” Rakoff opines. Additionally, when denied bail or unable to afford it, the plea bargain can look even more attractive.
Judges, prosecutors, and defense attorneys are supposed to make sure a guilty plea is truthful. Reality is different, Rakoff writes. “In theory, this charade should be exposed at the time the defendant enters his plea, since the judge is supposed to question the defendant about the facts underlying his confession of guilt. But in practice, most judges, happy for their own reasons to avoid a time-consuming trial, will hardly question the defendant beyond the bare bones of his assertion of guilt, relying instead on the prosecutor’s statement (untested by any cross-examination) of what the underlying facts are.” He explains how Alford pleas, rare in federal cases but common in many states, “allow a defendant to enter a guilty plea while factually maintaining his innocence, as part of a ‘voluntary’ plea bargain designed to avoid the ‘risk’ of a wrongful conviction at trial.”
Why would an innocent person agree to plead guilty? Rakoff compares that choice to false confessions, explaining, “a defendant’s decision to plead guilty to a crime he did not commit may represent a rational, if cynical, cost-benefit analysis of his situation, in fact there is some evidence that the pressure of the situation may cause an innocent defendant to make a less-than-rational appraisal of his chances for acquittal and thus decide to plead guilty when he not only is actually innocent but also could be proved so. Research indicates that young, unintelligent, or risk-averse defendants will often provide false confessions just because they cannot take the heat of an interrogation.”
A prosecutor may make the State’s case look stronger than it really is, Rakoff continues. Mistaken identification, confabulated eyewitness reports, perjured testimony and belief that forensic science is more reliable than it is, all result in innocent people being convicted–or pleading before trial. The defense needs to hire its own experts to challenge the State’s experts, which has worked for civil cases, Rakoff explains but “almost never succeeded in criminal cases,” where funding is generally quite limited, especially for indigent defendants.
Originally, fields of study like hair analysis, fiber analysis, paint analysis, clothing analysis, firearm analysis, polygraphy, bloodstain analysis, and bite-mark analysis were police investigative tools, but they slipped into criminal court posing as evidence presented by experts who “testified that their conclusions had been reached to ‘a reasonable degree of scientific certainty’—a catchphrase that increasingly became the key to the admissibility of their testimony in court” where defense counsel rarely challenges it because their own grasp of science and technology is shaky.
“It has become increasingly apparent that...most of these techniques are unscientific, involve a great deal of disguised guesswork, and too frequently result in false convictions...Of the more than 2,400 proven false convictions since 1989 recorded by the National Registry of Exonerations, nearly 600, or 25 percent, involved false or misleading forensic evidence,” Rakoff writes. He goes on to discuss standards judges apply to determine admissibility, and the evolution from Frye v. United States, “that, to be admissible, the expert’s opinions had to be ‘deduced from a well-recognized scientific principle or discovery’” to Daubert v. Merrell Dow Pharmaceuticals Inc. (1993), which asked judges to “examine whether the methodology it reflected not only was generally accepted but also had been subject to scientific testing, had been peer-reviewed in respected scientific journals, and had a known and low error rate” when deciding about admissibility.
I was disappointed not to learn more about plea bargaining, false confessions, deferred prosecution, and evidence tampering instead of the problems Rakoff discussed of Department of Justice ineptitude and racism. On the positive side, I thoroughly enjoyed the historical perspective Rakoff offered. He writes with great concern about the US Supreme Court’s history of deference to the executive branch of government, noting, “the Founding Fathers designed the Constitution in such a way that a wholly independent judiciary could, without fear or favor, enforce it, primarily against the legislature, but even against the president of the United States. It would be a tragedy if this constitutional design continued to be unrealized.” Much as I enjoyed his forays into history, I was happy when Rakoff returned to the current state of affairs in Chapter 13 where he writes, “Over the past few decades, ordinary U.S. citizens have increasingly been denied effective access to their courts.” He blames a number of reasons --
- Only the likely high-dollar cases are taken on contingency
- Declining membership in unions that provide their members with free legal representation
- Mandatory arbitration and growth in consumer and employment contracts not to sue a vendor or employer
- Judicial hostility to class action lawsuits
- Regulatory agencies assuming judicial powers and responsibilities
- Threat of “trial penalty” for refusing to accept plea offers.
Americans are taught and still believe they are entitled to their day in court, but in reality, few disputes are decided by judges and even fewer by juries, Rakoff asserts. A steady flow of complaints about “overburdened courts with overcrowded dockets” perpetuates that misapprehension, he adds. “Whereas in 1938 about 19 percent of all federal civil cases went to trial, by 1962 that rate had declined to 11.5 percent and by 2015 it had declined to an abysmal 1.1 percent.” He adds, “Some of the remaining 99 percent of cases are resolved by pretrial motions, in the majority of cases the parties simply settle without any judge or jury reaching a decision on the merits.”
Rakoff closes Why the Innocent Plead Guilty with an attempt at optimism, acknowledging that the “very substantial problems our judicial system currently faces” can and should be addressed by judges and legislators, and that change starts at the ballot box. “U.S. voters are not only among the most educated in the world but also among the most open to new ideas. So, even though I conclude that our legal system is in bad need of fixing, I remain cautiously optimistic that my fellow Americans will rise to the challenge,” he urges in conclusion. A lot of what Judge Rakoff opined was out of sync with my viewpoints, but I heartily agree with his closing.
To read more of this month's journal, please click here.