Excellent Examination Of US Judicial System. This is an excellent examination of the US Judicial system, from a former US District Court judge. Indeed, the *singular* outright flaw in the ARC copy I read was its lack of bibliography and citations, which I expect will be corrected in the published edition. For the most part, Judge Rakoff's examinations and explanations ring true and he cites several well known works in the field, including Michelle Alexander's The New Jim Crow during the discussion of the problem of mass incarceration. My only quibble - and it is just a quibble, just as the comments I am about to refer to are almost asides themselves - are a couple of points where the Judge makes comments about a couple of cases of a more political nature. (Including Bush v Gore and Citizens United, among perhaps a handful of others.) Overall one of the better examinations of the breadth of the US Judicial system, and even its acknowledged origins as a set of essays isn't really obvious or noticeable. Very much recommended. ( )

Why the Innocent Plead Guilty and the Guilty Go Free... by Jed S Rakoff is a book that needs to be read by everyone with any opinion about our legal system. Whether you think it is working (in which case explain away the facts presented) or think it is broken (in which case there will be plenty of backing information here) this book should make you think about what we should want, and not want, from a legal system.

Each chapter tackles a specific issue, based on essays Rakoff had already written. While the basic flaws are largely well known, the ways we have arrived at these places is often ignored or considered unimportant. But they aren't, because if we have made this into the system it is, then we can make it into a better system, even if it means dismantling all or some of it.

My main complaint with the book is that I would have liked it to be more prescriptive. A few ideas are fleshed out a bit more than others (often when based on what other countries do such as the UK) but many ideas are presented as just that, ideas. Not plans, not first steps, just ideas. While they will help since others can develop plans, a person with experience as a defense lawyer, a prosecutor, and a federal judge would seem like a good person to offer more thorough solution ideas.

I would recommend this to readers who know the names of the problems but don't know the details or extent. Ignore reviewers who pretend this is just the same old same old, it isn't, it is more detailed than what most laypeople have read. Read this, figure out where you might be able to make a difference, then take action.

Reviewed from a copy made available by the publisher via NetGalley. ( )

In so many instances, when a company is rotten, the people at the top don’t see or simply refuse to see it, and then claim they know best and everyone below is wrong. Employees who work there are frustrated with the pointless rules, bureaucracy and hypocrisy.

In the monolithic justice system, the US attorney general certainly seems in no hurry to improve – anything. And yet, there are judges lower in the system, like whistleblowers in other firms, who see the mess for what it is. They see the damage it does to citizens, as well as to the institution and the constitution. In this case, Judge Jed Rakoff, Senior United States District Judge of the United States District Court for the Southern District of New York continues his efforts to show his understanding of what isn’t working, from his perspective and intensive knowledge of why. It boils down to the Department of Justice is an oxymoron. And don’t blame the judges.

In his book Why the Innocent Plead Guilty and the Guilty Go Free, Rakoff expands on essays he wrote for the New York Review of Books over the past few years. Before becoming a judge, he was a criminal defense lawyer and federal prosecutor, so he has worked the system from every angle. He is less than pleased with the way it functions and the harm it does.

Justice is divided into two, criminal and civil, and both are blocked and inaccessible to the average American, but for very different reasons. The criminal justice system is held in a strangulating chokehold by prosecutors. They have the resources, the legal expertise, and choice of charges to bring. These weapons allow them to threaten the accused with very long prison terms – unless they accept a plea bargain. Plead guilty to a lesser charge and take the five year sentence instead of fighting and losing the case that results in a 20-year sentence.

It works. Rakoff says 97% of federal defendants take the plea, and 95% at the state level do as well. Doesn’t matter if they are totally innocent. Facing the monolith of the justice system and its seemingly bottomless resources, compared to the defendant’s zero dollars and court-appointed lawyer, the choice becomes obvious – and unfair. In this structure, the judge has nothing to judge. The prosecutor is judge, trial and jury all in one. Few cases ever make it to actual trial. And nowhere is it written that prosecutors should have this power.

Rakoff says 1.5 out of 2.2 million Americans in prison are there thanks to plea bargains. Most of the other 700 thousand are in jail waiting for prosecutors to offer plea bargains. The plea bargain is not an offer but a threat. Sadly, 9-10% of the innocent also take the plea, rather than risk the longer sentence and all the cash it would cost to even try. This is in no way justice.

Then on the hypocrisy front, white collar crime is barely handled at all. There is no need for plea bargaining here. The accused can simply pay a large fine, promise not to do anything like this (while not even having to admit they did it at all) and are on their way. The Justice Department claims it costs too much, takes too long, and enfolds too many issues like whether a company can be appropriately punished without harming the shareholders instead. The result is no justice. Rakoff gives the example of the drugmaker Pfizer, which continually gets nailed for huge fines, but keeps on being a very bad actor. It just seems to be a cost of doing business for Pfizer.

If that weren’t bad enough, the laws, especially recreational drug laws, have pushed prosecutors to focus on minorities. “By locking up, sooner or later, one out of every three African American males, we send a message that our society has no better cure for racial disparities than brutal force.” Rakoff points to Congress as the source of completely unfair laws that discriminate and force police and prosecutors to ride minorities in the USA.

Worse still, Congress has seen fit to tie judges’ hands in sentencing. No longer can a judge look the defendant in the eye, assess his or her background and prospects and adjust the sentence accordingly. Today, judges are required to sentence according to a menu, often far worse than s/he would have ruled given the chance. This additional frustration for judges fills prisons for far longer.

And on top of that, In 37 states judges are elected, so they must never appear to be “soft on crime.” Or they would lose their jobs. For Rakoff, trying to ensure just outcomes in this straightjacket of an environment is an unnecessary challenge. And certainly not what the constitution envisioned.

But there’s more still. The world of evidence is corrupt too. For years, “experts” have run roughshod over the courts, making unsubstantiated claims, sending all kinds of people to prison or death. Far too often, the accuseds are innocent, but condemned by false forensic experts. The experts bamboozle the judges with technojargon, and courts rarely challenge them, despite their history of failure. Judges do not have the necessary knowledge or skills to make those accusations in their courts. Rather, the judges are the victims of ploys by prosecutors to overwhelm them.

Rakoff says that of 2400 false convictions since 1989 that were recorded by the National Registry of Exonerations, nearly 600, or 35%, involved false or misleading forensic evidence. A more in depth example: the DOJ and the FBI looked at 3000 criminal cases involving microscopic hair analysis. They found that in 95% of the cases, testimony was “scientifically invalid and detrimental to the defendant.” But the court and the jury bought it.

With all of these negative forces pressuring defendants, it is little wonder the USA has the highest rate of incarceration in the world. Taxpayers host 2.2 million people in institutions that do nothing to treat or rehabilitate, and everything to make prisoners dysfunctional both inside and when they finally re-enter society. For a large percentage, they exit the justice system deeper in debt.

On the civil side, money talks. Companies provide biased arbitrators who are simply not allowed to make large awards like juries can. They force employees and customers to accept arbitration as binding, and to give up any right to a real trial, including, if not especially, class actions, where customers or employees might be able to pool their resources. In the arbitration system, it’s divide and conquer. No one is allowed to know what others have experienced. There are no precedents to leverage. Law is at the pleasure of the arbitrator, who is paid by the defendant firm.

The expense of suing has become a near total barrier for most Americans. While always expensive, Rakoff shows that lawyer’s fees have gone from the high double digits to over 500 dollars an hour in the past 35 years, far in excess of the increase in the average American’s income increase. The experts the case would require, the tests, the investigations and the points of law to be employed have all grown more complex, making the effort an enormously expensive exercise the average plaintiff likely won’t even understand as it unfolds. Here again, settlements keep nearly 100% of suits from actually coming to trial. And for those who choose to represent themselves, the failure rate is nearly total.

Here’s how Rakoff sums up the failure of civil court efforts, in his usual direct, compact and revealing style:
There are many reasons for this, including (1) the ever-greater cost of hiring a lawyer; (2) the increased expense, apart from legal fees, that a litigant must pay to pursue a lawsuit to conclusion; (3) the increased unwillingness of lawyers to take a case on a contingent-fee basis when the anticipated monetary award is modest; (4) the decline of unions and other institutions that provide their members with free legal representation; (5) the imposition of mandatory arbitration; (6) judicial hostility to class action suits; and (7) the increasing diversion of legal disputes to regulatory agencies. (In criminal cases, there is an eighth factor, already discussed in previous chapters, which is the vastly increased risk of a heavy penalty in going to trial.)
Into this flawed scenario, the judge sits and attempts to clear a path for truth, for a solution, for satisfactory compromise, for fairness and for justice. Good luck with that.

But there’s actually more to it than criminal and civil actions. Rakoff delves into the very checkered history of the Supreme Court (“Consistency is not the Court’s strong point,” he says). Justices have and continue to set society’s tone, for their own era and into the future, as they misinterpret laws, their predecessors’ opinions, the will of Congress and the intentions of the president. They do it in spite of the facts, and often to simply to avoid conflict with the wishes of the Executive Branch. The independence of the Supreme Court is constantly called into question, with today’s court a textbook example of not interpreting the law, but slanting it to favor an ideology, from Second Amendment issues to deciding the 2000 presidential election by itself.

Rakoff has long been an active voice criticizing the justice system, but perhaps surprisingly, he does not have an equally long list of solutions. The book actually ends weakly, with his wish that American ingenuity will implement innovations to make the system work better. So while the book is straightforward and fast paced, it is less than satisfying. Rakoff does not have the answers, just a lot of observations and frustrations, expressed with dignified, neutral resignation. This is his work environment.

Throughout the book, there is the occasional idea that could make a difference. Rakoff thinks a pretrial magistrate could meet with both sides separately, go over the case and their strategies, and keep it all under seal. This could give both sides realistic visions as to potential outcomes before they commit the big bucks and long efforts.

He also thinks prosecutors should spend six months of every three years to act as defense attorneys for the indigent outside their territory. This might change their severe attacks on defendants and the plea bargain threat that hangs over them.

I would have expected Rakoff to have a lot more in the way of brilliant suggestions and solutions than he does. I am left with the impression that he is a keen observer, but little more. From this book, I would have to say he is a whistleblower, but not an innovator.

David Wineberg ( )