Jed Rakoff

He never thinks he's getting a good deal, but he thinks he is getting a deal he can live with.

But it's still very harsh.

No, and this is something that is not so well known even to some of my colleagues.

What happened was that sentencing, in effect, was transferred from the judge to the prosecutor.

In the cases I've just given, the prosecutor is saying, you'll plead to a 10-year count rather than go to trial on a 40-year count.

There's no judge who would give that guy more than 10 years for transporting a few ounces of cocaine.

Maybe a lot of judges would love to give him much less, but they can't because the law says they must impose these mandatory minimums.

Sentencing is really being determined by the prosecutor.

now there are prosecutors and prosecutors even within the same office you will find relatively tough prosecutors and relatively softer prosecutors it's the line prosecutor who always makes these decisions

If you're lucky and Mr. X is the prosecutor, he may give you a five-year count in the example I just gave, whereas Mr. Tough Guy may say, I'll give you a 10-year count, but only if you plead within the next week, and otherwise it goes up to 20 years.

So the prosecutor is determining the sentence, but there's tremendous variation among the prosecutors, and therefore you still have variations in sentencing that are totally irrational.

No one knows this because unlike the old days where you could compare the sentences of one judge in one district to another, now there's no data to compare the sentence given by Prosecutor Smith with the sentence given by Prosecutor Jones.

It's all arrived at now.

in oral secret agreements in the prosecutor's office.

And no one knows anything other than the bottom line.

He's going to plead guilty to a five-year count, a 10-year count, a 20-year count or whatever.

We know that the United States leads the world by a substantial margin in the number of people it puts in prison and jails.

For the last 20 years, it's been over 2 million every year.

That is 25% of all the people in jail and prison in the world.

We used to say when I was growing up, the United States was the leader of the free world.