The notion that the U.S. criminal justice system is broken and needs to be fixed is something you rarely hear from a well-respected senior federal judge.
But that’s exactly what Judge Jed Rakoff of the Southern District of New York detailed during a keynote address at the 11th Annual Harry Frank Guggenheim Symposium on Crime in America at John Jay College of Criminal Justice on Friday.
“We created this monster and it’s taken on a life of its own,” said Rakoff, speaking critically of judges who everyday impose “terrible sentences” and send people to prison for extremely long periods of time without questioning the system.
He said even in the Southern District of New York, one of the more progressive federal court districts in the country, his judicial colleagues think sentencing offenders to extremely long prison terms is fair.
“They have bought into this draconian system, and I find that to be terrible,” he said to a crowd of journalists and criminologists gathered for the second day of John Jay’s two-day symposium, ‘Making Room for Justice: Crime, Public Safety & the Choices Ahead for Americans.”
He said attitudes of judges have changed from a time when jail was a last resort and judges would try to sentence offenders to places where they could get help like a drug program or job-training program.
“That attitude disappeared with rising crime rates,” he said. “Right or wrong, the attitude right now of most judges is prison is the default position.”
His speech, as well as a panel discussion that followed, tackled an area of criminal justice rarely analyzed in the criminal justice world: plea bargaining.
Rakoff detailed how he’s seen the system change in the past few decades, from a time where a much higher percentage of court cases went to trial (15 percent of court cases at the federal level 20 percent at the state level) to now where, after tough-on-crime laws swept the nation, only 3 percent of federal cases, and 5 to 6 percent of state cases, go to trial. The rest are settled with plea bargains.
He called the plea bargaining process a “system of totally secret justice” where prosecutors, hold all the cards and are able to get a vast majority of defendants to plead guilty to charges when faced with extremely long sentences — imposed through sentencing guidelines or mandatory minimums.
Julie Seaman, a professor at the Emory University School of Law and Board President of the Georgia Innocence Project, said it’s now a system where “it’s completely rational for an innocent person to plead guilty,” because there is so much risk involved in going to trial.
The panel — also featuring Keir Bradford-Gray of the Philadelphia Defender Association, Matthew Johnson of John Jay College, exoneree Rodney Roberts and moderated by John Hollway, executive director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School — detailed problems of this “assembly-line” style form of justice where police are under pressure to solve cases quickly, prosecutors are under pressure to clear cases and public defenders are overworked and under resourced.
And it’s all done behind closed doors, they say, away from public scrutiny.
“This is a system, because it’s so totally un-transparent, is it inevitably going to lead to some serious mistakes,” Rakoff said.
There has arguably never been more data and more transparency in the U.S. criminal justice system than there is now. Researchers, journalists, politicians and the public have more access to data on prison and jail populations, as well as crime statistics including the number of reported crimes and arrests. That data has played a large part in changing peoples’ minds about mass incarceration — and arguably without that data, you wouldn’t see elected officials of both parties rolling back sentencing laws. But data doesn’t exist for plea deals, which is where the decisions that dramatically impact millions of lives are made. There is a plethora of information available to the public on how offenders enter the system and where they end up, but missing is information on what happens in the middle.
Rakoff says this is a problem that has fueled mass incarceration – and also because when innocent people decide to plead guilty in order to avoid long sentences, we never know the truth. He said there is too much disparity in pleas that are offered and we don’t know enough about what goes on behind closed doors.
“No one ever knows what the truth is, no one ever knows what the facts are,” Rakoff said.
Hollway echoed those sentiments at the panel discussion.
“The fact of the matter is we don’t really know whether these plea bargains are being executed equally, fairly, honestly for the right reasons, even within an office,” said Hollway. “Are there racial disparities? Does it matter what’s the race of other participants? The public defender? The judge? The federal prosecutor?
“The fact that we don’t know this is a troubling thing because 97 percent of our cases are being resolved without that knowledge,” Hollway said.
Caught in the middle of this system are real people fighting for their lives. People like Rodney Roberts, a New Jersey man who plead guilty to a crime he was eventually exonerated of — after spending 17 years of his life behind bars. Facing a life sentence if convicted at trial, he said his decision to either fight at trial or plead guilty to a crime he didn’t commit was like choosing between “Lucifer or Satan.”
“Most people ask, ‘What would make an innocent person plead guilty?’ Most people say, ‘Oh I wouldn’t have done that. I would have fought for my innocence.’ My response is always the same, I say, ‘I hope you’re never in that situation.’”
“Your lack of connection to society itself is such an overwhelming feeling that all you are thinking about is trying to save your life, save your future,” he added.
Roberts called it “assembly-line” type of process where his overworked public defender coerced him into to take a deal.
“I thought, ‘This is the only guy who is on my side,’ if he’s telling me this, then what chance do I have?” he said.
Bradford-Gray, a longtime public defender in Philadelphia, said it’s impossible to mount the appropriate defense with dwindling budgets and too many cases to handle.
“You feel like you’re scooping water out of a sinking ship,” she said.
So what’s the solution?
“Unless we have some checks and balances on prosecutors and plea bargains, there’s never going to be a change,” Bradford-Gray said.
Judge Rakoff said more judges need to speak out. He said he decided to speak out a few years ago after thinking about all the cases where he was encouraged to impose longer and longer sentences on low-level criminals, with no diversion options except prison. He said federal judicial code encourages judges to speak out, but not enough do because they feel they shouldn’t speak publicly about these issues.
Even so, he said the bigger problem is that too many judges do not feel “uncomfortable” doling out terrible sentences.
He said he’s seen a change in attitudes among politicians who are talking about reforming sentencing at the federal level and have already done so at the state level, but not with judges.
“It’s very worrisome to me. Who is going to judge the judges? It will be history. And right now I’m very worried that the verdict of history about the attitude of judges toward jail will not be very favorable,” he said.
Adam Wisnieski is a contributing editor of The Crime Report. He welcomes comments from readers.