Judge Challenges Voters To Reform Courts

Federal judge Jed S. Rakoff has seen too many corporate executives walk out of court unscathed, while impoverished young men plead guilty to crimes they did not commit.

Voters can prevent this from happening, Rakoff says in his new book, Why the Innocent Plead Guilty and the Guilty Go Free.

It is rare to find a book by any judge below the Supreme Court level that is not a memoir. It is rarer still to find a book along the lines of this work by Rakoff, who is a senior judge in the U.S. District Court for the Southern District of New York.

Rakoff begins his book by calling the idea that mass incarceration reduces crime ​“at best, a hunch.”

“Yet the price we pay for acting on this hunch is enormous… by locking up so many young men, most of them men of color, we contribute to the erosion of family and community life in ways that harm generations of children, while creating a future cadre of disenfranchised, unemployable ex-convicts, many of whom have learned in prison how better to commit future crimes,” he writes.

Rakoff notes that 500,000 of the 2.2 million people locked up in this country have ​“not been convicted of any crime but are simply there because, having been arrested, they could not make bail.”

In addition, over 840,000 — or around 40 percent of the US prison population — are African-American men.

One of the central problems Rakoff identifies is the plea bargaining system. Prosecutors employ mandatory minimum sentencing laws and federal sentencing guidelines to essentially coerce plea bargains from defendants. This process has almost no transparency or review of whether the bargain was fair.

“The prosecutor has all the power. The Supreme Court’s suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth. It is much more like a contract of adhesion in which one party can effectively force its will on the other party,” he says.

Rakoff states that this has resulted in defendants admitting to crimes they didn’t commit in order to get a better deal. Rakoff estimates that approximately 100,000 or more persons are incarcerated in federal and state prisons for crimes they pleaded guilty to but didn’t commit. Rakoff quotes Thomas Jefferson that ​“a criminal justice system that is secret and government-dictated ultimately invites abuse and even tyranny.” 

Rakoff finds hope in Connecticut and Florida, which have been experimenting with involving judges in the plea bargaining process. 

Rakoff devotes a chapter to the real estate crash of 2008, the Great Recession.

“The failure to prosecute those responsible must be judged as one of the most egregious failures of the criminal justice system in many years,” he wrote. ​“Few if any high-level executives were prosecuted for their role in bringing about an economic collapse that left millions of Americans without jobs, without resources, without hope.”

Part of the blame for the situation lies at the hands of the government, according to Rakoff, who used to run the business fraud division of Manhattan’s Department of Justice.

The repeal of the Glass-Steagall Act allowed banks to securitize pools of mortgages. Weakened government oversight contributed, as did the Treasury keeping interest rates low to encourage home buying and the 50% increase in risky loans Fannie Mae and Freddie Mac were required to purchase.

Once the crash happened, the federal government stepped in to stabilize the economy. Regulators made ​“almost no effort to hold accountable the financial institutions they were bailing out… all too ready to forgive its alleged perpetrators.”

“The government was deeply involved, from beginning to end, in helping create the conditions that could lead to such fraud, and that this would give a prudent prosecutor pause in deciding whether to indict a CEO, who might, with some justice, claim that he was only doing what he fairly believed the government wanted him to do,” Rakoff writes.

“It is hard to avoid the conclusion that our otherwise very aggressive criminal justice system gives a pass to those who can take advantage of a corporate shield.”

The New Haven Independent followed the cases of New Haven area individuals who were indicted for conspiracy to commit mortgage fraud after the 2008 housing crash. The Justice Department indicted local realtors, appraisers, mortgage brokers and closing attorneys. 

I was one of those closing attorneys. Almost half of the individuals indicted in my conspiracy case were closing attorneys. There were many individuals in my case, lawyers as well as non-lawyers, who were never indicted. 

I pleaded guilty to mortgage fraud and was sentenced to 20 months in federal prison in 2014 for my role as a closing attorney in seven transactions. I knew many of the individuals in the New Haven area who ended up going to prison. Most of these individuals, like myself, had no prior criminal record and were at the very bottom of the criminal conspiracy — if one were to include unindicted banking executives as part of the conspiracy. 

Some individuals were bread winners for their families and completely broke at the time of their delayed indictments, having long ceased closing loans after the housing crash. Many of the individuals indicted were people of color. Nobody had the means to challenge the federal government.

The US attorney provided my lawyer with cd roms containing thousands of pages of documents related to my case. How could anyone of limited means afford to effectively defend themselves against a document dump? The US Attorney offered sweetheart plea deals, carrying almost no jail time, to the worst offenders, who agreed to testify against others. Guys who went to trial lost their life savings to their attorneys in legal fees, yet still got convicted.

This themes continues in another chapter, this one on the trend of giving deferred prosecution agreements to corporate criminals.

“Companies that enter into deferred prosecution agreements sooner or later commit new crimes,” Rakoff writes. ​“The Department’s preference for deferred prosecutions reflects some questionable motives, such as the political advantage of a settlement that makes for a good press release, and the avoidance of unpredictable courtroom battles with skilled, highly paid adversaries.”

Other chapters cover the unreliability of eyewitness testimony, the death penalty and the lack of justice for his brother, who was murdered in the Philippines. Rakoff titles another chapter ​“The War on Terror’s War On Law.”

“Something as laudable as the war on terror has too often been used as an excuse for courts to avoid applying the Constitution,” Rakoff states.

Rakoff concludes his book with the following words: ​“The main object of this book has been to acquaint readers with the very substantial problems that our judicial system currently faces… none of these problems are insolvable.”

And voters hold the solutions in their hands, Rakoff says.

“It is the legislatures that can repeal the shamefully harsh criminal laws they passed in the 1970s and 1980s. It is the legislatures that can trim the powers of the executive branch in ways no court is likely to undertake. It is the legislatures that can provide everyday people with meaningful access to their courts. But, of course the legislatures will not so act unless they are pushed in that direction by the voters,” he writes.

“US voters are not only among the most educated in the world but also among the most open to new ideas. So, even though I conclude that our legal system is in bad need of fixing, I remain cautiously optimistic that my fellow Americans will rise to the challenge.”

Lawrence Dressler is a New Haven-based blogger and a consultant for law firms. He wrote diary entries for the New Haven Independent while serving out a 20-month sentence in a federal prison for his part in a mortgage-fraud ring.