Writing in the Nov. 22 issue of the New York Review of Books, U.S. District Judge Jed S. Rakoff of the Southern District of New York addressed the likelihood that there are too many instances in which federal court defendants plead guilty not because they are, but because they have been presented with a plea bargain which must be agreed to promptly or potentially lost or diminished with the passage of time.
Rakoff observed that the prosecutor is at a distinct advantage, because indictments are often structured with multiple counts so as to portend enormous sentences upon conviction, the potential of which frequently serves to bring about early pleas that obviate the need for the government to prepare and go to trial. Rakoff recognizes that with the number of pending criminal cases, plea bargaining is a necessary and important facet of the criminal justice system.
But to the extent that individuals may be prompted to enter pleas, despite legitimate and significant defenses to be offered at trial, Rakoff believes that efforts should be made to minimize the potential for false guilty pleas. The suggestion offered in the New York Review piece is that, at least on a trial basis, it might be useful for a magistrate judge to meet separately with the prosecutor and defense counsel after an indictment is returned—or even earlier—and for the meeting to be recorded but placed under seal.
As per Rakoff's suggestion, the magistrate would be informed of the evidence and the issues in the case. Evidence might be examined and witnesses interviewed under certain circumstances, all of which would be confidential and without prejudice to either side. While this process is being carried out, the prosecutor would be prevented from offering any plea bargains or making any threats.
There would then be separate meetings with both sides and, if indicated, recommendations as to the disposition of the case, including possible dismissal of the charge or suggestions as to a reasonable plea bargain. Rakoff says that he is "… under no illusions that this suggested involvement of judges in the plea-bargaining process is a panacea. But would not any program that helps to reduce the shame of sending innocent people to prison be worth trying?"
We agree and believe the experiment ought to be carried out. New Jersey would be a good place to start.