Full title: Why The Innocent Plead Guilty And The Guilty Go Free and other paradoxes of our broken legal system. Huge title but then the book covers an enormous number of issues.
Judge Jed S. Rakoff used this book to combine essays that he wrote for the New York Review of Books over the past few years and added new thoughts.
Judge Rakoff opens with a topic that is dear to my heart: why do people confess to something that they did not do? There are several posts on this website dedicated to wrongful convictions and false confessions. But, Rakoff highlights another angle and expands on it: plea bargaining.
While most people still think that criminal cases are always tried and concluded in court, the truth is that the majority of these cases never go to trial. They are resolved through plea bargaining without judicial oversight and a mostly one-sided ‘negotiation’ from the prosecution on both the federal and state level.
The defense comes in when the prosecution already had time to formulate their offer. Then, time and money constraints do not allow for extensive checking. The best plea the defense gets is when it agrees promptly so, on the prosecution’s time schedule. If not, the deal may be off the table. There is no objective or independent review and it may drive people to accept a plea.
Fear that the offer may be withdrawn, that they may face the death penalty if they cannot convince the jury (wrongful convictions) or, doubt that they will never be able to get the resources for a proper defense. The prosecution may claim to have DNA or several reliable eyewitnesses.
Now eyewitness identification is at the top of the list of reason why we have wrongful convictions. Just check online. It is a real gamble. We may think that there are distinct different facial features however, to some, we, people of colour, all look alike. Judge Rakoff goes over line ups at the police department, perception, memory, and the resurfacing of repressed memories.
Judge Rakoff offers solutions such as involving magistrates in the plea bargaining process, adding to the continued law education a job rotation where state and federal prosecutors switch roles with criminal defense attorneys in other jurisdictions. They do this already in the UK.
The book further discusses mass incarceration, mandatory minimum sentencing, the death penalty and its legal history, the Frye versus Daubert standards, scrutiny for forensic evidence and its limitations esp. in regards to testing and reporting, post-conviction access to pretrial evidence for forensic testing (another topic dear to my heart) and much more.
Chapter seven is an eye opener as Judge Rakoff explains in plain English the Recession that began in 2008 and why a willful blind eye was turned to corporations. Starting on page 98, the judge explains ‘deferred prosecution agreements.’ It is a special deal so that the individuals in a company are not investigated. Instead, there is this public song and dance about the company cooperating fully with the government to improve their security, their internal affairs procedures, stamp out fraud, etc. and they promise to be better at keeping track. To show their goodwill, they pay a fine. Just search the Sally Yates Memo.
Near the end of the book, Judge Rakoff writes about September 11, Guantanamo Bay, waterboarding, the use of torture, and rendition.
However, it is the last chapter that makes this book so meaningful right now. In Chapter 11, Judge Rakoff explains how the US Supreme Court became subservient to the Executive branch.
The book is well written, the text flows well, the pace is good, the chapters are well proportioned, and there is an index. Highly recommended reading. My other book reviews are here.