Jed Rakoff

Thank you.

In the 1960s, 70s and 80s, crime rates were increasing dramatically in the United States.

And the reaction to that was to pass laws that impose very severe penalties for criminal activity, even fairly minor criminal activity.

These were laws that took away the discretion of the judges and mandated mandatory minimums of 5, 10, 15, 20, in some cases as much as 45 years in prison.

Also, career offender statutes.

which mandated life imprisonment if you were convicted of three felonies, even if they were fairly minor felonies.

And sentencing guidelines, which originally were mandatory, now are discretionary, but are still very harsh.

The result of all that is that no one can take the risk of going to trial, even innocent people, because if they are convicted, they will face huge amounts of time in prison.

They plea bargain.

And the statistics are that between 1980 and 2000, the number of cases that were plea bargained went from 80% to 97%.

And it has continued at or even been slightly higher in state courts today where most criminal activity is prosecuted.

Cases that go to jury trials are less than 2%.

Instead of what the Constitution contemplated, which was a trial by jury, the sort of thing you see still on the media and on TV, the reality is you've got to plead guilty or you will face huge penalties if you lose.

Now, of course, if you're innocent.

you have a chance of being acquitted.

But the system is not so perfect.

And we know now that through the work of the Innocence Project, that quite a number of people who go to trial are, in fact, innocent.

And we only learned that many years later.

Plus, most defendants, particularly poor people of color, are very cynical about the system.

And so they don't have much faith that they will be acquitted, even if they are innocent.