Judge Jed S. Rakoff - Why the Innocent Plead Guilty and the Guilty Go Free

A sense of justice is central to human endurance. No matter what wrongs we suffer or misfortunes we withstand, the belief that justice will ultimately prevail is part of what keeps us going. Nowhere is this belief more deeply felt than in the United States, and with good reason, for over the decades we have made progress, however haltingly and imperfectly, in dealing with poverty, racism, sexism, homophobia, and many other challenges.

But at present our system of justice is facing more than one challenge that it seems unable to come to grips with, perhaps because our faith in it may blind us to its shortcomings and contradictions. How can we be fully proud of a system that locks up more human beings than are imprisoned in any other nation? How can we have confidence in a system that too frequently convicts innocent peopleoften on the basis of dubious forensic science and shaky eyewitness testimonyand sometimes even coerces them into pleading guilty to crimes they never committed? How can we accept a system that imposes the death penalty when we know full well that a meaningful number of those sentenced to death will later be proved innocent? How can we pretend we are adhering to the Constitution when we have created a criminal justice system in which the jury trial has all but been eliminated? How can we claim that justice is equal when we imprison thousands of poor Black men for relatively modest crimes but almost never prosecute rich, white, high-level executives who commit crimes having far greater impact?

How can we justify using the convenient excuse of the never-ending war on terror to narrow rights guaranteed by the Constitution? How can we accept Congresss and the Supreme Courts limiting to the point of near extinction the hallowed constitutional right to habeas corpus relief? How can we applaud the Supreme Courts view of its ever-more-confined role in combating excess by the president?

Finally, how can we tout our system of civil justice as a remedy for wrongs when the great majority of Americans cannot afford to go to court at all, and are often kept out of court even when they wish to avail themselves of its benefits? In these and other important ways, our system of justice is failing its mission.

That our current system of justice is beset by hypocritical pretensions, conundrums, paradoxes, and shortcomings is not a realization I came to easily. When, after serving as a federal prosecutor and then a criminal defense lawyer, I first became a federal judge a quarter century ago, I still thought the system pretty much delivered justice as it was supposed to and just needed some tweaking here and there to get it right. But my subsequent experience and that of my judicial colleagues too often revealed that our system of justice was seriously flawed, and after a while I thought it my duty to speak out about these deficiencies. I tried to do this, first and foremost, in the actual cases that came before me; but over time, recurring patterns emerged in those cases that made me believe I had an obligation to bring these shortcomings to public attention as well.

About six years ago, I began to write articles calling attention to these problems for The New York Review of Books (to whose editors I owe a huge debt). This book (which was completed in the summer of 2020) further develops the themes of those articles and also addresses additional limitations of our legal system that have become evident to me from the work I have done on var-ious committees of the National Academy of Sciences, the MacArthur Foundation, and the National Commission on Forensic Science. Finally, the book offers some specific suggestions on how to deal with these problems; but it also argues that real reform must come from an increased recognition by everyday people that our system of justice is broken and needs to be fixed.