Jed S. Rakoff speaks as an insider. The onetime prosecutor became a federal judge and served on committees investigating the limitations of forensic science. He arrived at the conclusion that the American justice system has broken down. Despite constitutional guarantees, few federal cases are heard before juries; 97 percent of criminal cases are plea-bargained—a process where prosecutors usually hold all the cards. Plea bargaining saves time but serves justice poorly. To receive a relatively shorter sentence, defendants will plead guilty to crimes they never committed to avoid the possibility of conviction with longer prison terms. Mandatory sentencing, which diminished judicial discretion, is also to blame.
Aside from DNA, which seems fool proof, the other forensic “sciences” martialed on behalf of justice are artful guesswork, he writes in Why the Innocent Plead Guilty. The “shortcomings inherent in human perception and memory” make eyewitnesses dubious. And then there is racism, the pernicious spread of for-profit prisons, the high cost of legal fees and politics where—until recently—“tough on crime” was never balanced against other concerns.
What’s to be done? Radkoff suggests more judges (state budgets have been stingy), a more active role for the judiciary and curbing the power of parallel court systems within the administrative branch of government. He suggests that Congress fix some laws and the U.S. Supreme Court overturn certain past decisions that deprive most Americans of meaningful access to the courts. He remains “cautiously optimistic.”
