Chapter 1: What do we commonly misunderstand about the justice system?
We think of the justice system as a search for truth. Evidence presented, guilt or innocence decided, fair outcomes delivered. But the reality is often more complicated. Most cases never go to trial and outcomes are shaped by incentives that have little to do with guilt or innocence. So how does the justice system actually work? And why do so many innocent people plead guilty? Hi, everyone.
I'm Lynn Thoman, and this is Three Takeaways. On Three Takeaways, I talk with some of the world's best thinkers, business leaders, writers, politicians, newsmakers, and scientists. Each episode ends with three key takeaways to help us understand the world and maybe even ourselves a little better. Today, I'm delighted to be here with Judge Jed Rakoff.
He's a senior judge for the famed US District Court for the Southern District of New York. He is also a former federal prosecutor and criminal defense attorney. As a judge, former prosecutor, and former criminal defense attorney, he brings a very broad and unique perspective.
I'm excited to find out why the innocent plead guilty and the guilty go free, which just so happens to be the title of his new book. Welcome, Jed. Congratulations on your book. And thanks so much for being here today.
Thank you.
So, Jed, why do the innocent plead guilty?
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%.
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Chapter 2: Why do innocent people often plead guilty?
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. 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.
Judge, how do plea bargain sentences compare to trial sentences if a defendant is found guilty?
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. 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.
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Chapter 3: How has plea bargaining changed in the justice system?
And what can we do to improve our criminal justice system?
It would be terrific to do away with all mandatory minimum laws, all career offender laws, but even more so to reduce the penalties involved. The second thing that should happen is more attention should be paid to why it is that people don't want to go to trial even when they're innocent.
because of wrongful convictions with bad evidence, because of a cynicism about the system, because of feeling that the lawyer's not really representing them. That is all changeable. Most of it could be changed with money and greater resources. A third thing, a more subtle thing, is to moderate the position, the attitudes of prosecutors.
Now, I have another specific proposal we don't think is going to come to be, but in my ideal world, it would happen, which is that every prosecutor would spend six months out of every three years being a criminal defense lawyer for indigent defendants in another district, another district so there'd be no conflicts. They would see things from both sides.
Having seen it both as a prosecutor and as a defense, I think it makes a huge difference in how fair you are when you can see both sides. It would also cause prosecutors to be much more careful in taking the evidence provided to them by the police. The police are 99 percent of the cases honest. There are some rotten apples, but that's not what I'm talking about.
I'm talking about the fact that they only see one side of things and they only report one side of things. And therefore, the prosecutor is getting a skewed view, which could be counteracted by the prosecutor saying, how about that other suspect?
Before I ask you for your three key takeaways, is there anything else you'd like to discuss that you haven't touched upon?
Yes. Real briefly, we've talked so much about the criminal justice system, but it should be of equal concern to people that everyday folks can't get into court and can't have a lawyer if they're dragged into court, even in everyday civil matters.
So the statistics are that 20 years ago, if you were an individual who was either bringing a case as a plaintiff or were forced into a case as a defendant, you had a lawyer in almost every case.
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