By Nancy Gertner | The New York Review of Books | January 8, 2015 issue
In response to Judge Jed Rakoff’s piece “Why Innocent People Plea Guilty” in The New York Review of Books, CLBB faculty, former Federal Judge, and Harvard Law School Professor Nancy Gertner submitted the following letter to the editor. Gertner targets threats, coercion, and prosecutorial power as reasons innocent people plead guilty.
To the Editors:
Judge Jed S. Rakoff’s article “Why Innocent People Plead Guilty” is spot on, but doesn’t go far enough. True, we have a federal plea system, not a trial system. True, to call the process “plea bargaining” is a cruel misnomer. There is nothing here remotely like fair bargaining between equal parties with equal resources or equal information. The prosecutors’ power—as Judge Rakoff describes—is extraordinary, far surpassing that of prosecutors of years past, and in most cases, far surpassing the judge’s. Judge John Gleeson, a federal judge of the Eastern District of New York, made this clear during a case involving a charge for which there is a mandatory minimum sentence. As a result of the prosecutor’s decision to charge the defendant with an offense for which there is a mandatory minimum sentence, no judging was going on about the sentence. The prosecutor sentenced the defendant, not the judge, with far less transparency and no appeal.
Indeed, there were times during my seventeen-year tenure on the federal bench in Massachusetts that inquiring of a defendant as to the voluntariness of his guilty plea felt like a Kabuki ritual. “Has anyone coerced you to plead guilty,” I would ask, and I felt like adding, “like thumbscrews or waterboarding? Anything less than that—a threatened tripling of your sentence should you go to trial, for example—doesn’t count.” Continue reading »