The Flaws in the American Plea Process

A federal judge has publicly stated what practicing criminal defense attorneys already know. Manhattan Federal Judge, Jed Rakoff says the American plea process is "broken." In a lecture at the UCLA law school, the judge said that,

"[t]he current process is totally different from what the founding fathers had in mind,"

An extraordinarily high number of federal criminal cases end in pleas. 97% of all federal defendants skip their constitutional right to go to trial and plead guilty. Thirty of 316 convicted felons exonerated by DNA evidence had entered a guilty plea. Why does this happen? This answer is simple. The federal criminal system punishes defendants for going to trial.

Many criminal defendants feel coerced to accepting plea deals to lesser time simply to avoid the threat of enhanced punishment. Presently, federal prosecutors have extraordinary discretion to charge defendants with mandatory sentences if they do not accept plea offers prior to specified deadlines.

"People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial," Rakoff said. "The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it's a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today."

This proposal would eliminate the secrecy and heavy handed methods prosecutors often use during the plea process. The greatest failure of the US criminal system is when innocent people are jailed for crimes they did not commit. Judge Rakoff cites studies that estimate 1% to 8% of the prison population is wrongfully incarcerated. That's more than 10,000 people, Rakoff says.

A plan this revolutionary would take years of study and pilot programs. Hundreds of Federal prosecutors and a number of judges are sure to reject this drastic change to the way business is done in our system. Change is never easy but when it is necessary, it takes a brave person to present a solution. I applaud this judge for recognizing the problem and thinking of a unique way to address it.

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