Washington Lawyer - July/August 2021 - 46

WORTH READING
Injustice in the Court
Review by Ronald Goldfarb
J
udge Jed Rakoff is a vocal critic
of the legal system. In his
quarter century as a federal
trial judge - authoring 1,800
opinions during his tenure in New
York City - and with his background
as a prosecutor and
criminal defense lawyer, Rakoff has
become both a scholar and a practitioner
of the law.
Rakoff's experience lends great credence to the
conclusions of his new book, Why the Innocent
Plead Guilty and the Guilty Go Free: And Other
Paradoxes of Our Broken Legal System. The
judge offers firsthand insights into common
academic perspectives on the justice system.
In clear, concise, insightful writing, he demonstrates
its shortcomings and explains the root
of the problems.
The book's chapters on mass incarceration,
dubious forensic evidence, coercive pleading
in criminal cases, and the critical role of money
in the justice system present data to support
Rakoff's criticisms. Of the 2.2 million people
incarcerated in the United States, in which a
disproportionate number come from poor and
minority populations, half a million are in jail
awaiting trial because they cannot afford bail.
Rakoff offers studies showing that our excessive
incarceration rates - the worst in the world
- do not account for the decline of offenses,
as one might assume. Yet, we pay $180 billion
a year to keep these " correctional " institutions
running.
Sentencing guidelines meant to cure past
judicial eccentricities in sentencing have worked
to prolong sentences, as have three-strikes
laws. The privatization of prisons has resulted in
more expensive and ineffective imprisonments.
Electing state judges motivates them not to be
" soft on crime. " While many " reforms " were wellintentioned,
they were rarely successful, and " it
46 WASHINGTON LAWYER * JULY/AUGUST 2021
extraordinary costs and finality in cases where
a defendant is innocent - undercuts the moral
force behind the ultimate sentence, even in
cases of horrible crimes. Still, it seems unlikely
the Eighth Amendment's cruel and unusual
punishment clause will be the basis to abolish
the death penalty.
Rakoff's chapter on how prosecutors rarely
punish corporate criminals whose offenses
often are more extensive than violent crimes is
troubling, suggesting a cultural protection of
white-collar crime. As a result, stockholders are
punished and corporations pay fines, while the
wrongdoers are rarely criminalized. Attempts to
cure this problem through deferred prosecutions,
whereby corporations simply pay fines
and promise to improve corporate culture,
have proven to be illusory and naive. Prosecutors
can relate to corporate citizens who they
might be defending, but not to street robbers
and murderers.
is we judges who mete [them] out, " Rakoff
writes.
His chapter on plea bargaining shows that 97
percent of criminal cases are resolved by plea,
meaning judges and juries have little role in
this highly questionable, if not unconstitutional,
process. Prosecutors hold all the chips in these
bargaining sessions, and many unrepresented
defendants plead guilty for fear they will face
more charges if they go to trial (10 percent of
defendants pleaded guilty to crimes they did
not commit - or approximately 100,000
people - according to Rakoff).
Rakoff also casts doubt on eyewitness testimony
and evidence. His chapter on forensic
evidence and all its injustices and unscientific
applications will surprise readers, as will his
analysis of the endless debates about sanity.
Quoting the late Justice Potter Stewart, Rakoff
agrees that capital punishment is " wantonly
and freakishly imposed. " He argues that no
matter what rationale its defenders use to
support it, the arbitrary and racist application
of the death penalty - along with its
On the civil side, Rakoff points out that a large
majority of litigants are unable to afford lawyers
and " are effectively denied a fair day in court. "
Unfortunately, the free market doesn't result in
adequate legal services.
Courts supervise legislatures but are deferential
to the executive branch, Rakoff writes, adding
that judges' self-recusal laws are inadequate.
His analysis of historic and current judicial
restraint on executive misconduct and its
resulting injustices is particularly interesting.
We who never fully understood the significance
of Chief Justice John Marshall's classic
opinion on judicial review in Marbury v. Madison
will find this analysis worth reading.
Rakoff's conclusion is that the " diminishment in
the power of the courts " is a key factor in the
failure to rectify failures of the justice system.
Ronald Goldfarb, a Washington, D.C., attorney,
author, and literary agent, is of counsel to
Redmon, Peyton & Braswell, LLP in Alexandria,
Virginia. His latest book is The Price of Justice:
Money, Morals, and Ethical Reform in the Law.
Farrar, Straus and Giroux
Washington Lawyer - July/August 2021

Table of Contents for the Digital Edition of Washington Lawyer - July/August 2021
