“I’m Here”

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Heroes / Repairing the System

One of my law school professors was also an elected municipal judge who had presided over hundreds of criminal trials. One day he told us that his experience as a judge led him to believe that police officers routinely perjured themselves on the stand. I don’t think he was suggesting that they were attempting to convict people who they knew to be innocent.  They were just taking a short cut to putting a “bad guy” away.

At the time we were all excited about the “inside information” the professor was giving us.  But now I can’t help wonder why he didn’t speak out publicly against this clear abuse of due process. That’s why I think that the insightful essay by federal district court judge Jed Rakoff  on innocent defendants pleading guilty  is  so important, not just for its message, but also for the messenger.  Judge Rakoff  is an  ‘insider” willing to speak out on wrongs within his organization.

I urge you to read Judge Rakoff’s clear and concise explanation of how this sad situation came a http://www.nybookbout ( s.com/articles/archives/2014/nov/20/why-innocent-people-plead-guilty/)   Here I will merely  summarize his conclusions.  Contrary to what you see on television, almost all criminal prosecutions are resolved by plea bargains. Poor defendants are often caught between the high dollar amounts set for bail and the  harsh sentences that prosecutors can demand if a client is convicted after a jury trial.  Almost all defendants accept a plea bargain, even some who know they are innocent.

Currently there are 2 million people in American prisons because of plea bargains.   Judge Rakoff points out that if the percentage of innocent defendants who plead guilty to a crime they did not commit was only 1% of that number, it means that 20,000  innocent people  are wrongfully imprisoned. But  most experts estimate the true percentage to between  2% and 8%.  That means the actual  figure might well be 100,000 or  more. Picture a large football stadium filled with innocent people serving time for crimes they did not commit. Then picture a couple more stadiums full of spouses, children, and parents who are impacted by their loved ones’ incarceration.

I think we have here a massive violation of fundamental human fairness. If the lofty phrase “officer of the court” has any meaning at all, it should suggest that every lawyer should take responsibility for  this  practice that poisons  our criminal justice system..

Of course, it’s tempting to leave this problem to the experts, the prosecutors and judges who run the court system. That’s when I think of my law professor.  Offering and accepting perjured testimony also seems a basic violation of due process of law, but the professor stayed silent except to entertain his students with his insider knowledge.  I’m sure he had his reasons.   Maybe he liked being a judge and didn’t think criticizing the police would be a good campaign tactic.  Maybe, as a law professor, he felt an outsider and did not see it as his role to speak out about an “internal” matter.

That’s the problem. There is always a  reason to remain silent. Yet  silence supports the status quo.    I imagine that the judges and prosecutors who run the criminal justice system also have their reasons for not publicly opposing the combination of high bails and aggressive plea bargains that lead to the imprisonment of innocent people.  Prosecutors want a conviction and judges feel a duty to move cases through the litigation pipeline. I don’t think we  can expect the insiders to solve this problem without the participation of the profession as a whole.

History tells us that in 1862 a band of Sioux warriors was executed by the United States Cavalry. Just before they were shot, the prisoners chanted in unison “I’m here.”   It was both an affirmation and a protest.  The innocent men and women in prison are still here.  So is Judge Rakoff.   It’s time for the rest of us to make our presence known.

1 Comment

  1. quin denvir says

    Well said. A very real problem everywhere, especially with mandatory minimum sentences and massive sentencing enhancements, which enable prosecutors to threaten lengthy, often life, sentences if the defendant doesn’t take the plea offer.


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