Hon. Jed Rakoff has published a very profound piece in The New York
Review Of Books, titled “Why Innocent People Plead Guilty”. The full article is here: http://www.nybooks.com/articles/archives/2014/nov/20/why-innocent-people-plead-guilty/?utm_medium=email&utm_campaign=NYR+Plea+bargains+Chinese+schools+Wonder+Woman&utm_content=NYR+Plea+bargains+Chinese+schools+Wonder+Woman+CID_89f09f245ed73e28dd6bbef74e4
He addresses the disparity in
resources and power between a defendant and counsel, on one side, and a
prosecutor, on the other. He acknowledges
that as many as 2% – 8% of innocent people may be presently incarcerated
(20,000 or more) for crimes that they did not commit, but who were victims of a
present-day prosecutorial system that differs drastically from that which our
forefathers intended. He states:
The reason for this is that the guidelines,
like the mandatory minimums, provide prosecutors with weapons to bludgeon
defendants into effectively coerced plea bargains. In the majority of criminal
cases, a defense lawyer only meets her client when or shortly after the client
is arrested, so that, at the outset, she is at a considerable informational
disadvantage to the prosecutor. If, as is very often the case (despite the constitutional
prohibition of “excessive bail”), bail is set so high that the client is
detained, the defense lawyer has only modest opportunities, within the limited
visiting hours and other arduous restrictions imposed by most jails, to
interview her client and find out his version of the facts.
The prosecutor, by contrast, will typically
have a full police report, complete with witness interviews and other evidence,
shortly followed by grand jury testimony, forensic test reports, and follow-up
investigations. While much of this may be one-sided and inaccurate—the National
Academy of Science’s recently released report on the unreliability of
eyewitness identification well illustrates the danger—it not only gives the
prosecutor a huge advantage over the defense counsel but also makes the
prosecutor confident, maybe overconfident, of the strength of his case.
Against this background, the
information-deprived defense lawyer, typically within a few days after the
arrest, meets with the overconfident prosecutor, who makes clear that, unless
the case can be promptly resolved by a plea bargain, he intends to charge the
defendant with the most severe offenses he can prove. Indeed, until late last
year, federal prosecutors were under orders from a series of attorney generals
to charge the defendant with the most serious charges that could be
proved—unless, of course, the defendant was willing to enter into a plea
bargain. If, however, the defendant wants to plead guilty, the prosecutor will
offer him a considerably reduced charge—but only if the plea is agreed to
promptly (thus saving the prosecutor valuable resources). Otherwise, he will
charge the maximum, and, while he will not close the door to any later plea
bargain, it will be to a higher-level offense than the one offered at the
outset of the case.
The solution he proposes is to
involve a magistrate early on in the plea-negotiation process. He states:
I am driven, in the end, to advocate what a
few jurisdictions, notably Connecticut and Florida, have begun experimenting
with: involving judges in the plea-bargaining process. At present, this is
forbidden in the federal courts, and with good reason: for a judge to involve
herself runs the risk of compromising her objectivity if no bargain is reached.
For similar reasons, many federal judges (including this one) refuse to involve
themselves in settlement negotiations in civil cases, even though, unlike the
criminal plea bargain situation, there is no legal impediment to doing so. But
the problem is solved in civil cases by referring the settlement negotiations
to magistrates or special masters who do not report the results to the judges
who handle the subsequent proceedings. If the federal rule were changed, the
same could be done in the criminal plea bargain situation.
As I envision it, shortly after an
indictment is returned (or perhaps even earlier if an arrest has occurred and
the defendant is jailed), a magistrate would meet separately with the
prosecutor and the defense counsel, in proceedings that would be recorded but
placed under seal, and all present would be provided with the particulars
regarding the evidence and issues in the case. In certain circumstances, the
magistrate might interview witnesses or examine other evidence, again under
seal so as not to compromise any party’s strategy. He might even interview the
defendant, under an arrangement where it would not constitute a waiver of the
defendant’s Fifth Amendment privilege against self-incrimination.
The prosecutor would, in the meantime, be
precluded from making any plea bargain offer (or threat) while the magistrate
was studying the case. Once the magistrate was ready, he would then meet
separately with both sides and, if appropriate, make a recommendation, such as
to dismiss the case (if he thought the proof was weak), to proceed to trial (if
he thought there was no reasonable plea bargain available), or to enter into a
plea bargain along lines the magistrate might suggest. No party would be
required to follow the magistrate’s suggestions. Their force, if any, would
come from the fact that they were being suggested by a neutral third party,
who, moreover, was a judicial officer that the prosecutors and the defense
lawyers would have to appear before in many other cases.
