Plea Bargaining and the Innocent–A response to Judge Kane and Judge Rakoff

In a thoughtful and well written piece the highly regarded John Kane, a long serving federal district judge from Colorado, thinks judges ought to do a lot more to assure that the innocent do not plead guilty to a crime they did not commit.  See John L. Kane, Plea Bargaining and the Innocent, It’s up to judges to restore balance, The Marshall Project (December 26, 2014). This follows another thoughtful piece written by Judge Kane’s friend, the venerable U.S. District Judge Jed Rakoff, from the Southern District of New York, entitled Why Innocent People Plead Guilty.

Both Kane and Rakoff call for a much more active role for federal district judges in assuring that guilty pleas reflect actual guilt rather than a risk calculus by the defendant and his counsel that a guilty plea on conditions set out in a plea agreement is preferable to the risk of trial and a higher sentence.  I have two strenuous objections to this call for greater involvement in the plea process on the part of federal trial judges.

First, both Kane and Rakoff cite the following statistic:

My friend Jed Rakoff writes, “How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent.” With over 2.2 million people in American prisons that is a haunting amount of injustice.

I don’t know where they get their numbers because they provide no citations, but I do know that those numbers have little do with the federal courts. In short, the judges fail to cite any empirical data that proves there is a significant problem with innocent people pleading guilty in the federal courts.

As both a United States Magistrate Judge and a federal District Judge over the last 28 years I have personally taken more than a 1,000 guilty pleas and I have reviewed many hundreds more taken by Magistrate Judges.  While I do not doubt that a few people plead guilty even though they may not be guilty of the crime charged (although they may well be guilty of a related but uncharged crime), Kane and Rakoff tell us a tale about a bogey man as we figuratively sit around the campfire. But the fearsome creature disappears when the sun rises. Data, gentlemen, where is your data for the federal courts?

Second, Kane and Rakoff in their effort to solve a problem that does not exist in the federal system push for a “mother knows best” role for federal district judges when it comes to plea bargaining. I have always understood our role as trial judges to be a part of an adversarial system that largely depends upon each side making their own decisions about what is best for them. While it is of course true that federal prosecutors almost always have the upper hand, let’s be honest and admit that such dominance arises because the vast majority of federal defendants are caught red-handed. Generally speaking, federal defendants are in a weak negotiation position not because of some flaw in the discovery or plea-taking process in federal court but rather because they are plainly guilty.*

Unless I am misreading them, Kane and Rakoff call for a fundamental change in the role of federal district judges in the plea process. There is no empirical evidence to support a need for this sea change in role. Moreover, their call for a nanny-like approach is in my estimation quite radical. It rejects both the history and tradition of federal trial judges, and the separate and independent roles properly played by prosecutors and defense lawyers. We don’t need, nor should we want, trial judges to become mothers to us all. The federal trials courts are places were big boy pants are worn. That is as it should be.


*This does not mean, of course, that we judges should not enforce Rule 16 aggressively or refuse to call upon prosecutors to adopt an “open file” approach to discovery. Nor does it mean that our Rule 11 plea taking procedures should be lax or performed in a rote manner. Furthermore, we may well want to assure ourselves before trial that the defendant has been fully advised of all plea offers and has knowingly and intelligently rejected them. See, here, for my standing order on that subject in light of Missouri v. Frye.

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