Rakoff: A System That Runs On Plea Bargaining Leads The Innocent To Plead Guilty

Innocent people plead guilty because the American justice system has evolved to give prosecutors undue power, Judge Jed S. Rakoff of the ­Southern District of New Yor writes in the New York Review of Books. “The Supreme Court’s suggestion that a plea bargain is a fair and voluntary contractual agreement between two relatively equal parties is a total myth,” he says. Rather, it’s “much more like a ‘contract of adhesion’ in which one party can effectively force its will on the other party.” Rakoff says the U.S. criminal justice system is “almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight,” the outcome of which “is very largely determined by the prosecutor alone.” The near disappearance of the jury trial, the imbalance between prosecutor and defense, and the lack of regulations over or recourse for the prosecutor’s exercise of charging power, have led to more than twomillion Americans in prison as the result of plea bargains, and thousands of them are serving time for crimes they did not commit, according to Rakoff.