Federal Judge Says Plea Bargaining System Is Broken

May 27 2014

Many criminal law practitioners believe the criminal justice system is broken. Most believe the reason it is broken is because the plea-bargaining system is broken. Federal Judge Jed Rakoff offered his own insight in a New York Daily News piece that was released today. Judge Rakoff basically asserts that the presence of mandatory minimum sentences has shifted the balance so far to the prosecution side, that just about everybody who is accused of a federal crime elects to plead guilty to a lesser charge instead of choosing to fight the case. Therefore, the actual evidence of guilt in a case never sees the light of day because everybody pleads guilty. This leads to a prison population that is filled with innocent people. To the non-criminal law practitioner it seems like that can’t possibly be true. Unfortunately it is.

The framers of the United States Constitution and the subsequent Bill of Rights went out of their way to create a legal system that was fair to the criminally accused. They created amendments that not only protected people against unreasonable searches and seizures by the government, but they also created rights which insured that if accused of a crime, a person has the right to have a lawyer, has the right to confront witnesses against him in open court, has the right to be free from being compelled to testify, has the right to a speedy trial, etc. The framers must have concluded that no innocent person would ever go to jail with all these checks on the government. Unfortunately, these rights have been systematically eradicated due to the enactment of harsh mandatory minimum sentences. Here is why.

When the government chooses to charge somebody with a crime, they have the access to the evidence of guilt. Discovery laws mandate that prosecutors only need to turn over the evidence if a trial is imminent. The idea, however, is that the accused has the right to say to the government, “Okay, you want to charge me with this crime? I want you to prove it in court and I want to be able to question the witnesses because I’ll show them to be the liars that they are!” “Great” says the government in response. Then at trial, a jury examines the evidence and if there is evidence of guilt, they convict. And if there isn’t, they acquit.

But what happens in a situation in which the government accuses the person of a crime in which the mandatory minimum sentence is 20 years in prison?What happens when the government offers for the accused to plead guilty in exchange for a sentence of only two years, but the government refuses to disclose the evidence unless the person elects a trial? What does the person do?

All of those wonderful rights are thrown out simply because of the very real and rational fear that exercising them means a lifetime in prison.

In my opinion, the only way for people to get their rights back is for the government to eliminate all mandatory minimums. The problem though is that politicians are unwilling to take laws off the books. They fear they’ll appear as “soft” on crime. However, whenever something tragic happens, these very same politicians are quick to pass laws that make the offensive conduct more severe. As a result, you get sentences that are perpetually increased. This then shifts the power away from the court and towards the prosecutor who now can force a plea to what the conduct used to merit (instead of the person being sentenced to that if convicted after trial).

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