What can be done? Rakoff said prosecutors should have smaller roles in sentence bargaining and the mandatory minimum sentences should be eliminated.
“But to be frank, I don’t think, politically, either of those things is going to happen. … When it comes right down to it, I think the public really wants these high penalties, and that’s because when these harsh penalties were imposed [in the 1980s], the crime rate went down.”
Another more controversial solution is to allow judicial involvement in the plea bargain process. A judge who is not involved in the case could take a first pass at an agreement, working with prosecutors and defense attorneys.
“What I have in mind is a magistrate judge or a junior judge would get involved,” Rakoff said. “He would take offers from the prosecutor and the defense. … He would evaluate the case and propose a plea bargain if he thought that was appropriate, and he might, in appropriate cases, say to the prosecutor, ‘You don’t have a case and you should drop it.’ This would be very difficult for the judiciary; it’s not something I come to lightly, but I can’t think of any better solution to this problem.”
Until extraordinary action is taken, Rakoff said little will change.
- Stanford Legal Design Lab