We think of the justice system as a search for truth. Evidence presented, guilt or innocence decided, fair outcomes delivered. But the reality is often more complicated. Most cases it never go to trial, and outcomes are shaped by incentives that have little to do with guilt or innocence. So how does the justice system actually work? And why do so many innocent people plead guilty? Hi everyone, I'm Lynn Toman and this is Three Takeaways. On Three Takeaways I talk with some of the world's best thinkers, business leaders, writers, politicians, newsmakers and scientists. Each episode ends with three key takeaways to help us understand the world and maybe even ourselves a little better. Today I'm delighted to be here with Judge Jed Raycoff. He's a senior judge for the famed US District Court for the Southern District of New York. He is also a former federal prosecutor and criminal defense attorney. As a judge, former prosecutor and former criminal defense attorney, he brings a very broad and unique perspective. I'm excited to find out why the innocent plead guilty and the guilty go free, which just so happens to be the title of his new book. Welcome, Jed. Congratulations on your book and thanks so much for being here today. Thank you. So Jed, why do the innocent plead guilty? In the 1960s, 70s and 80s, crime rates were increasing dramatically in the United States. And the reaction to that was to pass laws that imposed very severe penalties for criminal activity, even fairly minor criminal activity. These were laws that took away the discretion of the judges and mandated mandatory minimums of 5, 10, 15, 20. In some cases, as much as 45 years of prison, also career offender statutes, which mandated life imprisonment if you were convicted of three felonies, even if they were fairly minor felonies, and sentencing guidelines, which originally were mandatory, now are discretionary, but are still very harsh. The result of all that is that no one can take the risk of going to trial even innocent people, because if they are convicted, they will face huge amounts of time in prison. They plead bargain. And the statistics are that between 1980 and 2000, the number of cases that were plead bargain went from 80% to 97%, and it has continued to add, or even been slightly higher. In state courts today, where both criminal activity is prosecuted, cases that go to jury trials are less than 2%. Instead of what the Constitution contemplated, which was a trial by jury, the sort of thing you see still on the media and on TV, the reality is you got to plead guilty or you will face huge penalties if you lose. Now, of course, if you're innocent, you have a chance of being acquitted, but the system is not so perfect. And we know now that through the work of the Innocence Project, that quite a number of people who go to trial are, in fact, innocent, and we only learned that many years later. Plus, most defendants, particularly poor people of color, are very cynical about the system, and so they don't have much faith that they will be acquitted, even if they are innocent. So the bottom line of all this is that the pressure created by these harsh laws is so great, that even innocent people plead guilty, and it's roughly about 10% of all criminal defences presently in course rate. Judd, how do plea bargain sentences compare to trial sentences if a defendant is found guilty? There usually one half to one third of what they would get if they went to trial. That's called the trial penalty. The plea bargain is designed from the defendant's standpoint to get him a lower penalty than he would face if he was convicted at trial. It's not to be unexpected that a plea bargain sentence on average would be lower than the similar sentence as opposed to a trial. So you might be a low level guy in a big drug distribution conspiracy and let's say a cocaine distribution conspiracy. The guy at the top, I'll say 14 defendants, that would be a typical case in my court. Yeah, he's a really bad guy and he distributed tons of cocaine and he ought to go away for a long time. Down at the bottom is what I might call a schnuck, a person who is maybe a courier and transported a few grams of cocaine from one place to another if you return for a few hundred dollars. But under the law, all the conspirators are considered collectively for sentencing purposes and so the conspirators, each of them, face a 40-year mandatory minimum because of the many kilos of cocaine that the conspiracy as a whole, had distributed. You now are representing Mr. Schnuck, had you go to the prosecutor and you say, how can you give my guy 40 years? He admits that he was involved in one little transportation of a few grams and the prosecutor says, yeah, you're right, I'll tell you what, since I don't want to go to trouble going to trial against this guy, if you plead guilty in two weeks, I will give you a 10-year count. To an outsider like me, 10-year sounds an awful lot of time for someone who just transported a few grams of cocaine. But to the guy himself, it's a huge reduction from the 40 years he would face if he went to trial and was convicted as part of this conspiracy. He never thinks he's getting a good deal, but he thinks he is getting a deal he can live with, but it's still very harsh. One of the objectives of the mandatory sentencing that you talked about that was passed on a bipartisan basis by Congress in the 1980s was consistent sentencing. Did that work? Did sentencing become more consistent? Did it become fairer? No, and this is something that is not so well known, even to some of my colleagues. What happened was that sentencing in effect was transferred from the judge to the prosecutor. In the cases I've just given, the prosecutor is saying you'll plead to a 10-year count rather than go to trial on a 40-year count. There's no judge who would give that guy more than 10 years for transporting a few ounces of cocaine. Maybe a lot of judges would love to give him much less, but they can't because the law says they must impose these mandatory minimums. Sentencing is really being determined by the prosecutor. Now, there are prosecutors and prosecutors. Even within the same office, you will find relatively tough prosecutors and relatively softer prosecutors. It's the line prosecutor who always makes these decisions. If you're lucky and Mr. X is the prosecutor, he may give you a five-year count in the example I just gave, whereas Mr. Tough Guy may say, I'll give you a 10-year count, but only if you plead within the next week and otherwise it goes up to 20 years. So the prosecutor is determining the sentence, but there's tremendous variation among the prosecutors, and therefore you still have variations in sentencing that are totally irrational. No one knows this because unlike the old days where you could compare the sentences of one judge and one district to another, now there's no data to compare the sentence given by prosecutors Smith with the sentence given by prosecutor Jones. It's all arrived at in oral secret agreements in the prosecutor's office, and no one knows anything other than the bottom line. He's going to plead guilty to a five-year count, a 10-year count, a 20-year count, or whatever. That is horrifying. If you look at the several million people that are in prisons in the United States, can you talk about what their criminal activity they were convicted of was and what the average sentences are? What do we know about the people in our prisons? We know that the United States leads the world by a substantial margin in the number of people it puts in prison and jails. For the last 20 years, it's been over 2 million every year. That is 25% of all the people in jail in prison in the world. We use the say when I was growing up, the United States was the leader of the free world. Well, now we're the leader of the unfree world in the sense of we lock up so many people. The second thing we know is that even when crime rates go down, it doesn't affect that statistic. We still have 2.2 million people locked up year after year. Why is that? Because under these laws, the courts are giving ever longer sentences and an ever-grater percentage of people who are charged are sentenced to long periods of time. For example, something like 19% of all presently incarcerated people are doing mandatory life sentences. Many of them not because they committed murder or things like that, but because they committed three felidies, and even though the felidies may not have been individually, that major under the rear offender laws, three strikes in your out, they get mandatory life and in terms of what crimes these people are committing aside from the 10% of completely innocent and didn't commit any crime, it varies a lot from state to state or jurisdiction to jurisdiction. In the federal system, it's mostly drug cases, often minor drug cases, but drug cases, that's the biggest part of the federal incarceration. In many states, it's minor, robberies, burglaries, and some other states, it's assaults, we're a big country and there's a lot of variation. So there's no one crime that sticks out, but the overall result is pretty much the same everywhere. And how did these sentences compare to other countries? We lead the world both on a per capita basis and on a absolute number basis by substantial margin. We're not even close to China or Russia, we're much higher than either of those countries in terms of number of people we lock up and we've been the leader, I'm sorry to say, for the last 20 years, we're locking up, mostly people of color, 60% of that group, even more so people who are poor, that's 80% of the group. And we are ruining their lives, we are ruining their family's lives, we are ruining their communities in many respects. By the way, it's very expensive, it could cost 160 billion dollars a year to lock up all those folks. So it's having a devastating effect. If you are a black male, your chances of being arrested sometime in your lifetime are one in three. If you are a black male, your chances of spending time in jail or prison sometime in your lifetime is one out of nine. So these are huge proportions of black male society that are being ripped away from their families usually at a very important time in their life, taken away from their jobs and they will never be able to get the same kind of jobs again. And yes, some of them did commit crimes, but not crimes warning this kind of punishment. If somebody has drugs, let's say two ounces of marijuana, what kind of sentence would they get in the United States as compared to another country, or if they break and enter a home, how would a US sentence compare to other countries? US sentences are usually much higher than most western countries. The sentences on paper in China are even harsher than our sentences. Lots of desenses on paper, but the number of people who were actually locked up in China or executed in China is much smaller than in the United States. But taking countries like Germany, France, the Scandinavian countries, like that, their average sentences are typically about one third to one quarter. What are so? Wow, so much less. The sentences are very different between the US and western countries and even the US and China or Russia. But out of the justice systems themselves compare to other countries have this plea bargain arrangement, or are they trial by judge or trial by jury? The jury system is pretty much unique these days to the United States and to countries that come out of the Anglo-American system, so they were former British colleagues or things like that. Most countries don't have a jury system. I think that's a shame. The jury system is a terrific system. The trouble is, we've now devised a system where no one ever gets a jury trial because they never get to trial. But in most countries, other than those that were once part of the British Empire, a judge makes the decision. I think the biggest difference is that judges are much more powerful in many countries than they are in the United States when it comes to the criminal justice system. There are no mandatory minimums in most of these countries. There are no career offender statutes in most of these countries. The judge often plays a investigative role at the outset of the case, something that is completely far into the American system. What can we do to improve our criminal justice system? It would be terrific to do away with all mandatory minimum laws while career offender laws, but even more so to reduce the penalties involved. The second thing that should happen is more attention should be paid to why it is that people don't want to go to trial even when they're innocent because of wrongful convictions with bad evidence because of a sinister system about the system because of feeling that the lawyers are not really representing them. That is all changeable. Most of it could be changed with money and greater resources. The third thing, a more subtle thing is to moderate the position, the attitudes of prosecutors. I have another specific proposal. We don't think it's going to come to be, but in my ideal world, it would happen, which is that every prosecutor would spend six months out of every three years being a criminal defense lawyer for indigent defendants in another district, another district, so there'd be no conflicts. They would see things from both sides having seen it both as a prosecutor and as a defense cala. I think it makes a huge difference in how fair you are when you can see both sides. It would also cause prosecutors to be much more careful in taking the evidence provided to them by the police. The police are 99% of the cases honest. There are some rotten apples, but that's not what I'm talking about. I'm talking about the fact that they only see one side of things and the only report one side of things. Therefore, the prosecutor is getting a skewed view, which could be counteracted by the prosecutor saying, how about that other suspect? Before I ask you for your three key takeaways, is there anything else you'd like to discuss that you haven't touched upon? Yes, real briefly. We've talked so much about the criminal justice system, but it should be of equal concern to people that everyday folks can't get into court and can't have a lawyer if they're dragged into court even in everyday civil matters. So the statistics are that 20 years ago, if you were an individual who was either bringing a case as a plaintiff or were forced into a case as a defendant, you had a lawyer in almost every case. Now, two thirds of those people don't have lawyers. In housing court and family court, which are the two courts where most people get involved on civil matters. In some states, not all, in some states, this is as much as 90% of the individuals don't have lawyers. The statistics, again, are overwhelming. If you have a lawyer, you do much better, as you would expect. And if you don't have a lawyer, there are many reasons why this has come about. Lawyers have priced themselves out of that market. Their market has become the market of corporations and rich folks. There has been a decline in things like labor unions, which uses supply lawyers to their membership. There's been a push supported by the Supreme Court to force cases to go to arbitration rather than to go to court, even though in an arbitration, you don't have a jury, you don't have to process, you don't even have off in the rules of evidence. There's been increasing similar deference to sending matters to administrative agencies rather than into the courts. And there again, the courts have tended to say, yeah, that's fine. We give great deference to what is decided by a so-called administrative law judge who was so intipically selected by the head of the agency and who not surprisingly decides for the agency in 90% of the cases. Without multiplying their other causes as well, there is a real lack of access to the civil justice system on the part of everyday individuals. Last question, what are the three key takeaways you'd like to leave the audience with today? The first is that none of these problems are beyond being fixed. There's nothing inevitable about any of this. The second thing is to fix it a change in attitude of the American public. One of the reasons for those very harsh criminal laws is that most voters are big supporters of law and order. And it's not because they're inherently unfair people. It's just because they read about the crimes and they don't read much about the mass incarceration and the harsh penalties and all the other things. It's a question of educating the American people. That may sound on awfully polyadish view, but I think that is at the heart of changing the system. And the third, if you really want to know what is going on in the system, you've got to read my book. Thank you, Jet. This has been great. I did enjoy your book. If you're enjoying the podcast and I really hope you are, please review us on Apple podcasts or Spotify or wherever you get your podcasts. It really helps get the word out. If you're interested, you can also sign up for the three takeaways newsletter at threetakeaways.com where you can also listen to previous episodes. You can also follow us on LinkedIn, X, Instagram, and Facebook. I'm Lynn Toman and this is Three Takeaways. Thanks for listening.
