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A federal judge’s radical new plan to keep innocent people out of jail

Protestors outside the White House in 2011, demanding that President Obama halt the execution of Troy Davis, who many believed to be innocent
Protestors outside the White House in 2011, demanding that President Obama halt the execution of Troy Davis, who many believed to be innocent

In America today, judges don't sentence criminals: prosecutors do. And that system is putting innocent people in jail.

That's the argument federal judge Jed Rakoff makes in a powerful New York Review of Books piece. Rakoff writes that our jury trial system "is all a mirage," and that in reality, "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."

How plea bargains are putting innocent people in jail



According to Rakoff, more than 2 million of 2.2 million Americans in jail never had a chance to have their cases heard by a neutral judge, or the evidence evaluated by a jury of their peers. Rather, they accepted plea bargains: deals in which a prosecutor offers a reduced sentence or reduced charges, in exchange for a guilty plea that avoids the trouble of having to actually go to trial.

That system may save resources for the courts, Rakoff writes, but it has some serious problems. First, it replaces the adversarial system of justice with a prosecutor who effectively serves as judge and jury. No neutral party hears the evidence and there is no opportunity for the accused to present his defenses to a jury of his peers.

Second, it's secretive, and operates with little or no oversight: "the system of plea bargains dictated by prosecutors is the product of largely secret negotiations behind closed doors in the prosecutor's office, and is subject to almost no review, either internally or by the courts."

But worst of all, it puts innocent people in prison. Because prosecutors are able to put such strong pressure on defendants to enter into plea bargains, a significant number of defendants have pled guilty to crimes they did not commit. At least 10 percent of the people exonerated by the Innocence Project actually pled guilty to the crimes for which they were imprisoned. And the records of the National Registry of Exonerations show a similar pattern: approximately 151 of the 1,428 exonerations they recorded involved false guilty pleas.

Rakoff's solution: have judges supervise plea bargains


Judge Jed Rakoff (Washington Post/Contributor/Getty Images)

So what is to be done? Rakoff brushes aside the idea of solving the underlying problem — the harsh mandatory minimums and severe sentencing guidelines that give prosecutors so much leverage. That, he argues, is unlikely to garner enough political will to ever happen.

Instead, he proposes, the best solution will be to introduce transparency and supervision into the system by having magistrates or other judges supervise plea bargaining.

Rakoff envisions a process that sounds a bit like a "trial-lite," in which the judge supervising the plea could review the evidence, and might even be able to interview the defendant, "under an arrangement where it would not constitute a waiver of the defendant's Fifth Amendment privilege against self-incrimination."

The magistrate would then meet with both sides to discuss the strength of the case, and make a recommendation about how the matter ought to proceed, "such as to dismiss the case (if he thought the proof was weak), to proceed to trial (if he thought no reasonable plea bargain was available), or to enter into a plea bargain that the judge himself would suggest."

Although the magistrate's recommendations would not be binding on either party, Rakoff believes that they would have some force, because the judge would be "a judicial officer that the prosecutors and the defense lawyers would have to appear before in many other cases."

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