Wednesday, May 28, 2014

Should judges participate in plea discussions?

The Rules and 11th Circuit have an absolute ban on the practice.  But Judge Jed Rakoff persuasively argues that we should make a change:

Too many innocent people go to prison because the American plea bargain process is broken, says a prominent New York judge with an innovative new solution.
Manhattan Federal Judge Jed Rakoff argues judges should become more involved in the process so prosecutors armed with harsh mandatory minimum sentences are less able to bully defendants, he told the Daily News in a rare sit-down interview.
"The current process is totally different from what the founding fathers had in mind," because nearly all cases end in pleas, he said.
Nationwide, 97% of federal defendants plead guilty instead of taking their chances at trial. Thirty of 316 convicts exonerated by DNA evidence had entered a guilty plea, according to the Innocence Project.
The current system forces defendants to "choose between Satan and Lucifer," says Rodney Roberts, a Newark man exonerated this year on charges related to a sexual assault after 17 years in prison.
"I knew I didn't do it, but I didn't want to be in prison for the rest of my life," Roberts said. "They made me believe they were ready to enforce a life sentence.”
That's why Rakoff is proposing a mechanism that would designate junior judges to hear evidence and issue plea bargain recommendations early on in cases.
The junior judges, called magistrate judges in the federal system, would hear from prosecutors and defense lawyers separately before weighing in. Their recommendations wouldn't be binding.
Rakoff says the setup, which could begin as a pilot program, would bring plea bargaining out from behind closed doors and relieve pressure on defendants deciding whether to risk a longer sentence by heading to trial.
"There are some people who will say, 'I'm innocent and I'm going to fight to the end,' but they're the exception," Rakoff observed.
Rakoff would most like to see Congress trash mandatory minimums, but isn't holding his breath. He says an all-out elimination just isn't politically feasible.
Our state system allows the practice and the sky hasn't fallen.  What do you think?


Anonymous said...

sure, just do away with criminal defense attorneys all together since the junior judge will provide a recommendation that is just as non-binding as the Sentencing Guidelines

Anonymous said...

How about something local?

Doesn't look good for the lawyers for the indians....

Anonymous said...


Anonymous said...

I think the trial penalty is the bigger problem in the federal justice system.

Rumpole said...

The ability for state court judges to get involved is a bit more dicey than it used to be because of some good appellate case law on vindictive sentencing when the judge rocketed the defendant after turning down a plea before trial. The state judges get around this by holding plea days and swapping calendars so that the judge making the offer is not the judge hearing the trial. Much like a mag making a plea recommendation.

BTW- how do mags like being called junior?