Jed Rakoff

So the bottom line of all this is that the pressure created by these harsh laws is so great that even innocent people plead guilty.

And it's roughly about 10% of all criminal defendants presently incarcerated.

They're usually one half to one third of what they would get if they went to trial.

That's called the trial penalty.

The plea bargain is designed from the defendant's standpoint to get him a lower penalty than he would face if he was convicted at trial.

It's not to be unexpected that a plea bargain sentence on average would be lower than the similar sentences imposed after a trial.

So you might be a...

Low-level guy in a big drug distribution conspiracy, let's say a cocaine distribution conspiracy.

The guy at the top of, say, 14 defendants, that would be a typical case in my court.

Yeah, he's a really bad guy, and he distributed tons of cocaine, and he ought to go away for a long time.

Down at the bottom is what I might call a schnook, a person who is maybe a courier and transported a few grams of cocaine from one place to another in return for a few hundred dollars.

But under the law, all the conspirators are considered collectively for sentencing purposes.

And so the conspirators, each of them,

face a 40-year mandatory minimum because of the many kilos of cocaine that the conspiracy as a whole had distributed.

You now are representing Mr. Schnuck and you go to the prosecutor and you say, how can you give

my guy 40 years, he admits that he was involved in one little transportation of a few grams.

And the prosecutor says, yeah, you're right.

I'll tell you what, since I don't want to go to trouble going to trial against this guy, if you plead guilty in two weeks, I will give you a 10-year count.

To an outsider like me, 10 years sounds an awful lot of time for someone who just transported a few grams of cocaine.

But to the guy himself, it's a huge reduction from the 40 years he would face if he went to trial and was convicted as part of this conspiracy.