THE BLOG
11/03/2014 12:13 pm ET Updated Jan 03, 2015

Why Is Judge Rakoff a Lone Wolf?

Judge Jed S. Rakoff is clearly at the cutting edge.

When he speaks ex cathedra from the federal bench in the Southern District of New York, he gives the litigants before him his sometimes provocative rulings. We have his (initial) rejection of a controversial settlement of the SEC/Citigroup case, in which he criticized the settlement on multiple grounds; his sua sponte direction that the parties brief whether the death penalty is constitutional, taking into consideration exoneration evidence; and, in certain cases, his passionate condemnation of the sentencing guidelines -- to name a few.

But Judge Rakoff also talks to the "real world" (as he did in the November 20, 2014 issue of the New York Review of Books with "Why Innocent People Plead Guilty"). He does not merely add to the readings du jour digested by the bench and bar. Judge Rakoff talks to the public about what actually goes on when tackling justice in America and, in doing so, he takes it up a few notches, often by merely exposing the realities of the system. He becomes transformed -- he is a sitting judge willing to admit (perhaps, announce) to the world that when justice is supposedly meted out in the courtrooms of America, it may well be that what is actually served up is injustice. (He has done this kind of thing before in the pages of the New York Review of Books, in that instance challenging the vitality of white collar criminal law enforcement).

Our idealistic thoughts about America's justice system aside, as Rakoff explains, innocent defendants often plead guilty to avoid the potential of a harsh, draconian sentence after trial. Think about it, can there be anything worse than a defendant having to willingly decide to plead guilty -- to agree to go to jail for a crime he did not commit? Why would anyone do this? The answer is, unfortunately, not really complicated. A prosecutor will offer a defendant leniency if he accepts a plea deal. At the same time, the prosecutor makes sure the defendant knows that he will be charged for his alleged crimes, and then some (in other words, over-charged), and that the defendant will receive no mercy if he goes for broke and, notwithstanding whether he committed the crime, loses at trial.

Rakoff tells the public what lawyers and judges already know -- that this precise scenario plays out time and again, largely because prosecutors have too much power. They can charge a defendant with the harshest crime, carrying the harshest penalty and then basically "extort" (my word, not his) guilty pleas from vulnerable defendants. And, as Rakoff tells us, prosecutors act with virtual impunity because, while a judge is supposed to question a defendant about his confession of guilt, in practice, judges rarely question much beyond the bare bones of his admissions, often relying on the prosecutor's statement of the underlying facts.

In an effort to find a remedy to what many see as an abuse of the system, Rakoff proposes a protocol (to be tested in a pilot program) by which a magistrate judge, who will never actually preside over the merits of the case, would meet separately with both counsel (and perhaps other witnesses and even the defendant) in recorded, yet sealed sessions. The magistrate would make a recommendation -- that the prosecution dismiss the case; that the case proceed to trial; or that a plea deal be struck. No one would be bound to follow the magistrate's recommendation but maybe, just maybe, the use of this "mediating magistrate" (again, my term) would help decrease the number of false guilty pleas, and maybe even encourage prosecutors to agree to dismiss cases that should never have been brought in the first place.

Maybe the Rakoff solution will work. Maybe not. And maybe there are other solutions to propose -- perhaps having a judge or magistrate sit in on grand jury sessions. Yes, it may come as a surprise to many, but in our current system, no judge, defense lawyer or defendant is allowed into the grand jury even though it is the body that, upon information presented solely by the prosecutor, makes the weighty decision of whether to indict a defendant and hold him over for trial.

But here is the real question -- why is Judge Rakoff (seemingly) the only one willing to expose to the general public the galling scenario that plays out every day in our courts? Why aren't others who work within the system joining him to talk about the Devil's pact many defendants are forced to make and why aren't they all working toward a solution?

Without a formal poll, I am willing to wager that an overwhelming number of federal judges around the country believe most or all of the following: that (1) the plea bargain system in America is seriously flawed; (2) prosecutors have too much power in the process; (3) too many defendants are charged well in excess of the crimes that a prosecutor can prove beyond a reasonable doubt; (4) too many innocent people are indicted; and (5) too many people plead guilty to crimes they didn't commit to avoid the possibility of a harshly punitive sentence after trial. We can also assume, based on an unscientific "poll", that most judges are appalled by mandatory minimum sentences and the sentencing guidelines that, while no longer mandatory, are far too harsh, yet too easy to follow.

So why then does it seem that Judge Rakoff is alone, crying out in the wilderness and publicizing one of the system's dirty little secrets? Why doesn't the bench -- or at least those who agree with him on the defects in the system (and my guess is, most do) -- speak out beyond questioning the severity of the sentencing guidelines, as a number do? Sure, the defense bar can and does complain; but defense lawyers clearly have skin in the game -- and their views will hardly be seen as objective. Are judges afraid to speak out to the public, because to do so doesn't seem judge-like? Is it because there's simply been a tradition in America of judges presiding over cases and not talking about abuses or flaws in the system, particularly in non-legal, public-friendly publications? Is it because they're fearful that speaking in the public marketplace of ideas on an issue may cause them to have to recuse themselves in future cases, on the theory that they've already opined and the world knows their views? Or are they afraid of being disciplined, scolded maybe, whether by judges or even certain media outlets?

If those are the reasons, maybe its high time that judges banded together to decide what issues they can and should talk about, to educate and even, maybe to help change the nation's thinking on important issues not generally known to the public. Our justice system is flawed; it needs help and those who may become embroiled in it and may (wrongly) lose their liberty need help. Isn't it ridiculous to deprive America of the voices of those who know best - by virtue of their intelligence and experience in dispensing justice?

Judge Rakoff's is an important and valuable voice. But he should not be standing alone. When justice is at stake, we need a chorus, not an aria.