And those are conservative numbers according to Judge Jed Rakoff,
who has written a compelling piece explaining that innocent people are pleading guilty to crimes that they have not committed. There is a lot to blame for this phenomenon but he offers this solution:
What can we do about it? If there were the political
will to do so, we could eliminate mandatory minimums, eliminate
sentencing guidelines, and dramatically reduce the severity of our
sentencing regimes in general. But even during the second Obama
administration, the very modest steps taken by Attorney General Eric
Holder to moderate sentences have been met by stiff opposition, some
from within his own department. For example, the attorney general’s
public support for a bipartisan bill that would reduce mandatory
minimums for certain narcotics offenses prompted the National
Association of Assistant US Attorneys to send an “open letter” of
opposition, while a similar letter denouncing the bill was signed by two
former attorney generals, three former chiefs of the Drug Enforcement
Administration, and eighteen former US attorneys.
Reflecting,
perhaps, the religious origins of our country, Americans are notoriously
prone to making moral judgments. Often this serves salutary purposes;
but a by-product of this moralizing tendency is a punitiveness that I
think is not likely to change in the near future. Indeed, on those
occasions when Americans read that someone accused of a very serious
crime has been permitted to plea bargain to a considerably reduced
offense, their typical reaction is one of suspicion or outrage, and
sometimes not without reason. Rarely, however, do they contemplate the
possibility that the defendant may be totally innocent of any charge but
is being coerced into pleading to a lesser offense because the
consequences of going to trial and losing are too severe to take the
risk.
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.
Would a plan
structured along these lines wholly eliminate false guilty pleas?
Probably not, but it likely would reduce their number. Would it present
new, unforeseeable problems of its own? Undoubtedly, which is why I
would recommend that it first be tried as a pilot program. Even given
the current federal rules prohibiting judges from involving themselves
in the plea-bargaining process, I think something like this could be
undertaken, since most such rules can be waived and the relevant parties
could here agree to waive them for the limited purposes of a pilot
program.
I am under no illusions that this suggested involvement
of judges in the plea-bargaining process is a panacea. But would not any
program that helps to reduce the shame of sending innocent people to
prison be worth trying?