Judge Jed S. Rakoff of the federal district court in New York has written a much-circulated piece in the November 20 issue of The New York Review of Books, in which he laments the breakdown in American criminal justice caused by abuse of the plea-bargain system. He writes, correctly, that “the criminal-justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes.” He quotes Jefferson’s expression of faith in the jury trial as “the only anchor yet imagined by man by which a government can be held to the principles of its constitution.” The Fifth, Sixth, and Eighth Amendments famously guarantee the grand jury as an assurance against capricious prosecutions, and also due process, no seizure of property without just compensation, prompt justice, an impartial jury, access to counsel (of choice according to judicial interpretation), and reasonable bail. Almost none of this really exists in most cases today, and Judge Rakoff writes: “The drama inherent in these guarantees is regularly portrayed in movies and television programs as an open battle played out in public before a judge and jury. But this is all a mirage. In actuality, our criminal-justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone.”
Eight to 10 percent of federal and state cases are dismissed because of a technical error or because a defendant chooses to cooperate, but of the rest, 97 percent of federal cases and about 95 percent of state cases are resolved by plea bargains, and, in practice, these are almost invariably dictated by the prosecutor. Up to the Civil War, Judge Rakoff writes, almost all prosecutions were tried, but the strains of that war and the very heavy immigration that followed for decades afterward raised crime rates and — uniquely among judicially advanced countries — the United States adopted the plea bargain, by which more-severe charges were withdrawn in exchange for guilty pleas on others, to relieve the strain on the courts. This was an inexcusable failing in the first place: Canada, Australia, and some other advanced countries had proportionately as heavy immigration, but their justice systems were not allowed to mutate by allowing the prosecutor to decree a sentence while binding the hands of judges with legislative usurpations of the power to sentence. By the end of World War II, about 80 percent of American criminal cases were resolved by plea bargains.
But in the 1960s and 1970s, crime rates rose steeply, largely in drug-related and race-related activities, and legislators vastly increased sentences, many of which were made mandatory (as in liberal New York governor Nelson Rockefeller’s mandatory sentence of 15 years in prison for selling two ounces or possessing four ounces even of marijuana). The severity of sentencing was enhanced by making sentences on individual counts consecutive, so even relatively minor offenses could be aggregated into appallingly long prison sentences. The whole political community from right to left got on the law-and-order bandwagon, and dissenters were dismissed as permissive kooks and mollycoddlers of crime. The percentage of federal prosecutions tried by juries declined from 19 percent in 1980 to 3 percent today, as prosecutors have huge advantages over defense counsel and throw a great raft of counts against a defendant who declines to roll over. The prosecutor wins most of the cases that are tried and, as he can decide on the number and level of gravity of counts charged, defendants can face as much as ten times as heavy a sentence if they plead guilty as they would if they try the case and, as usually happens, lose. Rakoff does not mention that the high probability of successful prosecution is enhanced by plea bargains with witnesses who are threatened with prosecution for conspiracy to obstruct justice if they do not jog their memories to recall damaging evidence against an accused in exchange for immunity from prosecution, including for perjury. Rakoff does make the point that defense counsel are subject to allegations of “ineffective assistance of counsel” if a plea-bargain offer is rejected peremptorily, even as a negotiating ploy to extract a less onerous proposal from the prosecutor.
Thus do prosecutors acquire control of all relevant aspects of most cases. They target someone, throw a mass of charges against him, hustle the defendant and defense counsel, and — though Rakoff does not say this either — that counsel is often a hopelessly overworked public defender who is bulldozed by the prosecutor, and whatever he or she agrees to is apt to be repudiated by the prosecutor in court to reach for a stiffer sentence under mandatory minimums and legislated guidelines. The judge writes: “The Supreme Court’s suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth: It is much more like ‘a contract of adhesion’ in which one party can effectively force its will on another party.” He also makes short work of the academic argument that the plea bargain is equivalent to a regulatory process, as there are no regulations and the prosecutor just forces the result he wants. As Rakoff summarizes, the system is terribly one-sided, contrary to the image of impartial justice weighing these matters in finely balanced scales. The plea-bargain discussions are conducted in secret and are not subject to serious review, no matter what level of intimidation is employed; and many people become so terrified by the Stalinesque arithmetic of successful prosecutions (the conviction rate in Canada is about 60 percent and in the United Kingdom just over 50 percent) that, even when completely innocent, they plead guilty for a sentence much reduced from what a guilty finding at a trial would produce, given the ability of prosecutors to secure convictions even of the innocent.
Judge Rakoff reckons that from 2 to 8 percent of defendants are innocent. On the basis of my observations, as someone who was wrongly convicted and imprisoned, though the Supreme Court ultimately vacated my four convictions (four having been abandoned and nine rejected by jurors), the number is probably 10 to 15 percent, but if we take 6 percent, that means that there are 150,000 innocent people today in American prisons and jails, and that nearly 3 million of the United States’ 48 million ostensible felons are innocent. At the end of his piece, the judge proposes the involvement of judges in the plea-bargain process, which he admits is “not a panacea,” but which he puts forth as a palliative to the “shame of sending innocent people to prison.” The mountain of corruption and hypocrisy gives birth to a mouse of reform.
The judge does not refer to any other infamous aspects of this terribly corrupt and abusive system, such as the practices of presenting false affidavits ex parte, in camera proceedings to magistrates who are rubber stamps for the prosecutors, and claiming that the means with which a defendant intended to pay his counsel were “ill-gotten gains” and having them frozen to deprive the accused of effective means of self-defense (in so far as such a possibility exists). This happened to me, but my assets are largely in Canada and the United Kingdom, I am not an American citizen or resident, and those countries refused to hear of any such Star Chamber asset-freeze proceeding.
A friend of mine who is a nationally recognized authority on the vagaries of the American criminal-justice system wrote of the Rakoff piece: “Would that Rakoff would go one step farther and conclude his piece with a paragraph like this: ‘And so, with the interests of true justice in mind, I announce that henceforth I will not play this game that is characterized by coerced testimony (cooperation) that is of dubious credibility. I will not take prosecutors’ sentencing recommendations. I will dismiss indictments that are brought in order to bring pressure on an individual to cooperate by giving testimony pleasing to the government, or to punish said individual for refusing to cooperate, and I will state, in written opinions, my reasons for dismissing those indictments. Since I consider the entire system described in my NYRoB article to be unconstitutional as well as immoral and unethical, I will simply bow out of the game and allow the appellate courts, whose members know full well what I have written is true, to reverse me if they want to see a corrupt game continue.’”
It is astounding and depressing that there is little public outrage and media exposure of this awful blight on America. Last week, as on every election night, we got winning and losing candidates of both parties and every state repeating the same tired pieties about “the greatest country in human history” (which in some respects may be true but is not beyond debate), and none of them making urgent promises to address a system of justice that gives a country with 5 percent of the world’s population 25 percent of its incarcerated people, six to twelve times as many incarcerated people per capita as Australia, Canada, France, Germany, Japan, and the United Kingdom (all of which have lower crime rates than the U.S.), and a conviction rate rivaled only in totalitarian countries. Above all, I lament the negligent absence of the collectively narcissistic Supreme Court with its large staffs and extended vacations, the ultimate guardians of the Constitution. I regret to advise my American friends that, to well-disposed outsiders, this atrophied mockery of a justice system is, next to the scale and vigor of the country as a whole, the principal evidence of the much-touted American exceptionalism. This is the original “sweet land of liberty”; but Americans have gone to sleep and they will wake up in North Korea.
— Conrad Black is the author of Franklin Delano Roosevelt: Champion of Freedom, Richard M. Nixon: A Life in Full, A Matter of Principle, and Flight of the Eagle: The Grand Strategies That Brought America from Colonial Dependence to World Leadership. He can be reached at firstname.lastname@example.org.