It is unusual to hear a senior federal judge like Jed Rakoff of the Southern District of New York refer to the U.S. judicial system as “draconian,” but he did in a recent speech before the 11th Annual Harry Frank Guggenheim Symposium on Crime in America at the John Jay College of Criminal Justice.

“We created this monster and it's taken on a life of its own,” said Rakoff, referring to judges who impose “terrible sentences” that send defendants to prison for long periods of time without questioning the system. He said that too many judges “have bought into this draconian system, and I find that to be terrible.”

Rakoff said that judges used to strive to find better solutions than jail for offenders, such as drug programs or job training programs. With the rise in crime rates, judicial attitudes have changed and judges now use jail as a default position, Rakoff said.

Rakoff noted that earlier in his career, a much higher percentage of criminal cases when to trial. Today, only about three percent of federal cases and five to six percent of state criminal cases go to trial, with the vast majority settled through plea bargaining.

The senior jurist took issue with plea bargains, saying that the process is a “system of totally secret justice” where prosecutors hold all the cards and are often able to get most defendants to plead guilty by threatening them with longer prison sentences imposed through mandatory minimums or tougher sentencing guidelines. Often, this leads to innocent people pleading guilty.

“This is a system, because it's so totally un-transparent, is it inevitably going to lead to some serious mistakes,” Rakoff said. Because plea bargaining is conducted behind closed doors, Rakoff said that “No one ever knows what the truth is, no one ever knows what the facts are.”

Rakoff said that more judges should speak out, which he decided to do a few years ago after reflecting on all the cases where he was encouraged to impose harsh prison terms on those pleading guilty to low-level crimes. He noted, “I'm very worried that the verdict of history about the attitude of judges toward jail will not be very favorable.”

The Cogdell Law Firm is a boutique law firm focusing on large, complex business and criminal financial-related litigation, including white collar criminal defense, securities fraud, health care fraud investigation, criminal appeals and state criminal defense. When results matter most, contact Dan Cogdell at (713) 426-2244 or [email protected]