Federal Judge Jed S. Rakoff says the use—and abuse—of plea bargaining gives prosecutors more power than judges to affect justice outcomes. In a forthcoming Northwestern University Law Journal essay, he proposes one way to “temper” their powers.
A federal judge says federal and state prosecutors should be required to spend six months out of every three years of their term serving as defense counsel for indigent defendants.
Jed S. Rakoff, a senior U.S. District Judge for the Southern District of New York and a prominent advocate of justice reform, argues that his proposal will help raise prosecutors’ awareness of the need to “temper” their powers with greater sensitivity.
The proposal, he says, borrows from a practice permitted in the United Kingdom, where there is a requirement for prosecutors to occasionally serve as defense counsel.
Writing in the forthcoming November 2017 edition of the Northwestern University Law Journal, in an essay entitled “Why Prosecutors Rule the U.S. Justice System–and What Can Be Done About It,” Rakoff described his idea as a way of curbing the use of plea bargaining in the U.S. justice system—a practice which has not only given prosecutors more power than judges to determine justice outcomes, but has led to miscarriages of justice.
“I can think of no other step more likely to make prosecutors aware of the great power they possess or the need to temper it with other considerations,” Rakoff said in the essay, which was adapted from a speech he delivered at the Northwestern University Pritzker School of Law on November 18, 2016.
The judge said that his proposed temporary switch of roles would need to be approved by defendants and legal aid offices, and potential conflicts of interest could be avoided if a prosecutor in one locale served his or her time as defense counsel in another locale.
Rakoff, a one-time federal prosecutor who has been one of the country’s foremost advocates of reducing mass incarceration, said judicial discretion in sentencing has been sharply reduced since Congress and state legislators began passing mandatory minimum-maximum sentencing guidelines, in response to the country’s rising crime rates in the 1980s.
As a result, defendants are now more likely to accept a plea offer by a prosecutor instead of going to trial, in order to avoid a conviction that might land them with lengthy prison terms. Rakoff cited figures showing that in 2015 only 2.9% of all federal defendants went to trial, compared to roughly 15% in the 1970s and 1980s—even though crime rates have been on a steady decline since the turn of the century.
In his essay, Rakoff admitted a more direct solution would be to abolish plea bargaining or the mandatory-minimum guidelines.
But, he added, this “appears unlikely to command the support of the new federal administration or of the many state legislatures whose members know that it is still good politics to be ‘tough on crime.’”
Rakoff conceded that even his more modest proposal had little chance of being accepted, even though no new legislation would be needed to impose it,
For example, it was likely to be opposed by public defenders, he said.
“Many legal aid offices, for reasons that will not bear scrutiny, will never hire former prosecutors as legal aid lawyers, even though the reverse is not true,” he wrote.
And he noted that he had once made a proposal along similar lines as long ago as 1976 to then-U.S. Attorney General Edward H. Levi, who “shot it down.”
All the same, he said, continuing with the current plea bargaining system should concern every American.
Unless the system is changed, he said, “for the immediate future at least, prosecutors, rather than judges, will be the real rulers of the American criminal justice system. And I ask you: is that fair?”
A full copy of Judge Rakoff’s essay is available online.
This summary was prepared by TCR intern Brian Edsall. Readers’ comments are welcome.