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Federal Judge Recommends Reform of Plea-Bargaining Process

Federal District Judge Jed S. Rakoff has a long-standing reputation for being an honest, open-minded, and fair jurist when presiding over criminal cases.   He has continually shown the courage to address some of the most profound issues within our criminal justice system, and has always taken the “high road” in doing so.  Many criminal defense practitioners have lauded Judge Rakoff’s judicial wisdom as well as his “no-nonsense” attitude when dealing with prosecutors that play fast-and-loose with their ethical obligation to disclose favorable evidence.

According to Professor Peter Widulski of Pace Law School, who once served as a law clerk for Judge Rakoff:

Judge Rakoff is one of the most brilliant and respected members of the federal bench. He is a man of the highest integrity, and his dedication to the law is a model for all jurists and lawyers. This dedication is manifested not only in his work on the bench but in the extensive teaching he has done for many years at Columbia Law School.

Recently, Judge Rakoff has proposed innovative changes to help reform the plea-bargaining process. He suggested a new process whereby magistrate judges would hear evidence and issue plea bargaining recommendations  pre-trial. Such proceedings would allow both the prosecution and defense an opportunity to present relevant facts, and to weigh-in on the evidence likely to be presented by the government at a trial.

Judge Rakoff explained that such a process would bring “plea bargaining from behind closed doors and relieve pressure on the defendants deciding whether to risk a longer sentence by heading to trial.”  He also noted that judges should become more involved in the process to protect defendants from feeling bullied into pleading guilty and help prevent overzealous prosecutors from using mandatory minimum sentences as a coercive bargaining chip.

Judge Rakoff estimates that from 1% to 8% of the prison population may be the result of false guilty pleas. He notes that the “current process is totally different from what the founding fathers had in mind.”  He explained that more needs to be done to protect innocent people from coerced pleas –as “even 0.5% [of false pleas] would total more than 10,000 [innocent] people” in prison.

In 2009, Judge Rakoff was also outspoken about sentencing inequities created by mandatory minimums for firearm offenses. In Unites States v. Ballard, Judge Rakoff refused to submit to the government’s request to impose a Guideline range sentence on non-gun counts, and to stack consecutive mandatory sentences for each firearm conviction on the defendant’s armed robbery counts. He noted that the case did not warrant the 64-year sentence advocated by the prosecution and refused to become a party to such an “unconscionable result.” He found that the imposition of a one-month sentence for the non-firearm counts was proper given the two consecutive 25-year sentences required under 18 U.S.C. § 924(c).

Judge Rakoff explained that the case was illustrative of the distorting effects of mandatory minimum sentences, given that a co-defendant was given a plea bargain excluding mandatory minimums, and obtained a sentence of 168 months in prison. He observed that the extreme sentencing disparity between the co-defendants was simply a result of one exercising his constitutional right to go to trial –while the other defendant did not. He noted that

[w]hen the letter of the law so far departs from justice as to become the instrument of brutality, common sense should call a halt.

In 2006, Judge Rakoff also took a courageous stance against the disproportional sentencing recommendations that may occasionally arise in a case under the Sentencing Guidelines.  In United States v. Adelson, Judge Rakoff imposed a non-guideline sentence of 42 months imprisonment to a defendant convicted of conspiracy, securities fraud, and the three of the false filing counts -although the Government argued that the Sentencing Guidelines, if properly calculated, called for a sentence of life imprisonment.

Judge Rakoff noted that what the case “exposed, more broadly, was the utter travesty of justice that sometimes results from the guidelines’ fetish with abstract arithmetic, as well as the harm that guideline calculations can visit on human beings if not cabined by common sense.” He concluded that “[t]his is one of those cases in which calculations under the Sentencing Guidelines lead to a result so patently unreasonable as to require the Court to place greater emphasis on other sentencing factors to derive a sentence that comports with federal law.”

It is to be hoped that all members of the Bar will rally behind Judge Rakoff to help facilitate reform to correct the injustices caused by the combination of our plea-bargaining process and harsh mandatory minimum sentencing.

A true leader of his time, “Judge Rakoff enjoys well-deserved admiration for fairness, and he has the courage and insight to address important issues of law and the administration of justice, without fear or favor” said Professor Widulski.

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