Why Do the Innocent Plead Guilty?

Judge Jed Rakoff unveils his new book Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System with former Judge Paul Cassell of the University of Utah College of Law, Carissa Byrne Hessick of the University of North Carolina Law School, and moderator Jeffrey Rosen. They discuss the current challenges in American criminal justice today and share innovative proposals for reform.

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Hon. Jed S. Rakoff has served since March 1996 as a United States District Judge for the Southern District of New York. He frequently sits by designation on the Second and Ninth Circuit Courts of Appeals. His most noteworthy decisions have been in the areas of securities law and criminal law. Judge Rakoff has written over 170 published articles, 750 speeches, and 1800 judicial opinions, and has co-authored five books, the most recent of which is Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System.

Hon. Paul Cassell is Ronald N. Boyce Presidential Professor of Criminal Law and University Distinguished Professor of Law at the University of Utah College of Law. He previously served as a U.S. District Judge for the District of Utah from 2002-2007. Professor Cassell has also published numerous law review articles and is a co-author of the nation's only law school textbook on crime victims' rights, Victims in Criminal Procedure, as well as the co-author of Debating the Death Penalty: The Experts from Both Sides Make Their Case.

Carissa Byrne Hessick is the Ransdell Distinguished Professor of Law at the University of North Carolina School of Law, where she also serves as the Director of the Prosecutors and Politics Project. She is the author of the forthcoming book, Punishment Without Trial: Why Plea Bargaining is a Bad Deal, which will be published in October of 2021.

This episode was produced by Jackie McDermott, Tanaya Tauber, and Lana Ulrich. It was engineered by Greg Scheckler.

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This episode was produced by Jackie McDermott, Lana Ulrich, and John Guerra. It was engineered by Greg Scheckler.

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TRANSCRIPT

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jackie McDermott: [00:00:00] Welcome to Live at the National Constitution Center. I'm Jackie McDermott, the show's producer. Last week, we kicked off our new season of programs with a discussion of the challenges in American criminal justice. Today, Jeffrey Rosen was joined by Judge Jed Rakoff, author of the new book, Why the Innocent Plead Guilty and the Guilty Go Free, as well as former Judge Paul Cassell and Professor Carissa Byrne Hessick. Here's Jeff to get the conversation started.

Jeffrey Rosen: [00:00:28] We'll jump right in Judge Rakoff with your, a wonderful new book. And you begin very clearly and you helpfully sum up your arguments. Some of these essays began in the New York Review of Books where you developed a very powerful and accessible way of writing about the legal system.

And your first chapter is about the scourge of mass incarceration and you argue that there's no question that the data suggests that there is tremendous sense of over-incarceration in America and yet the evidence for whether it actually reduces crime is mixed. And yet these laws are the result of laws that were passed a generation ago at a different time.

And they're not repealed because they remain popular. Tell us more about why America suffers the surge of mass incarceration and whether or not incarceration reduces crime.

Jed Rakoff: [00:01:22] So thank you very much, Jeffrey. And thank you for inviting me to this very, very excellent panel. I am of course intimidated to be the only non-tenured professor on this panel, but I'll do the best I can.

More than any other reason, the reason I wrote this book is because I feel judges must speak out about the scourge of mass incarceration. It is we judges who put those people in jail. Now, [we didn't create] mandatory minimums and career offender statutes, and the like, but nevertheless we are the instruments of this terrible situation.

For the last 20 years up till through 2019 more than 2 million people were either in jail or prison in the United States. So that was a fair, fairly constant number. I will add one caveat to that in a second. But and that was despite the fact that throughout those years, crime rates were mostly declining.

But it didn't decrease the number. We were locking up a higher and higher percentage of those who were accused for longer and longer periods of time. The result of this is first that the United States is now the world's leader in number of people in prison.

There was a time when we could all boast, when I was growing up, we were the world's leader in cars or steel or something like that. Now we're the world's leader in incarceration and it is very sad. 25% of all the people incarcer -- incarcerated in the world are incarcerated in the United States. Furthermore, they are predominantly young men of color.

60% are black and Hispanic males between the ages of 18 and 34. They are being taken away from their families and their communities at a critical time in their lives and their family's development lives. And the result frankly, is, is devastating. It's interesting in 2020, which my, the statistics in my book go through 2019, but just this past year, the preliminary statistics, according to the Vera Institute are that there was a decrease in two to 1.8 million as opposed to the over 2 million that had been a constant for over 20 years. And the reason for this was partly the pandemic. The -- particularly in rural areas where they had little capabilities of dealing with a pandemic, fewer people were being sent to prison.

And it was partly the result of some of the few good steps that have been taken like the First Step Act and bail reform. But according to the Vera Institute, the one group that did not show the slightest decrease, even in this pandemic period, even in 2020, was young black males. So this is not only a terrible situation in itself, but it has clear implications for the nature of our legal system.

Jeffrey Rosen: [00:05:04] Thank you very much for that introduction to this very important topic. Judge Cassell, in his first chapter Judge Rakoff gives you a shout out and he notes you as one of the judges or former judges who have denounced America's mass incarceration rate. At the same time, your career has been devoted to advocating for the rights of crime victims.

And in addition to all that we had a great podcast about, you know, the beginning of the corona crisis about the corona crisis and the criminal justice system. And I wonder now that we're hopefully, you know, seeing light at the end of the tunnel, what your response is to Judge Rakoff's note about the data.

Why is it that young African-American men have not gone down in incarceration rates while other groups have, and more broadly, what do you think the data tells us about whether or not this these mass incarceration rates do lead to a decrease in crime?

Paul Cassell: [00:06:01] I appreciate you as asking those questions, which will keep us busy all night.

Also a pleasure to be on a panel with my former colleague, professor Hessick and also with Judge Rakoff, who's written just a monumental book that I'm sure everyone wants to take a look at may not agree with everything in it, but certainly will learn a lot from reading it.

Yeah. I have been a critic of some very excessive sentences. I had to impose a 55 year sentence on a low-level drug dealer, which I thought frankly, was a waste of taxpayer resources and, and an insult to victims of other very violent crimes that might see their offender go to prison for a much shorter period of time. And I think Judge Rakoff's statistics are correct.

Obviously he talks about the very high incarceration rates. I do think, however, we do have to put a bit of context onto some of those numbers. One of the reasons we have such high incarceration rates in the United States is we have high victimization rates. So Judge Rakoff mentioned we have 2 million people a year going to prison.

We have, I think almost by an order of magnitude more, maybe 20 million, depending on what level of victimization you use victims of crime every year. So when you have high levels of victimization, it's not surprising to find --high levels of incarceration. And I do think if we look at the trajectory of crime rates in America over the last 40 or 50 years we see that as incarceration rates fell in the 1960s, crime rates went up.

The response as Judge Rakoff points out in his book in the seventies, and particularly in the eighties was to increase incarceration. And that does seem to have played a role in reducing crime. Although the extent to which it played that role is the subject of debate. I guess, one area where I think we need to be perhaps focusing even more resources is on policing.

Judge Rakoff was talking about why is it that we're not seeing a reduction in incarceration rates for young men who are African-American? I think one of the possible explanations for that is that we're seeing a particularly in the last six months or so a startling increase in crime rates in the inner city areas, such as the South and West Sides of Chicago.

Beginning in the last week of May, homicide rates in Chicago increased by 50%, five, 0%. And the vast majority of those victims, 85% or more are African-American African-American descent. And many of them are also young males. And so when you have high victimization rates, you are going to inevitably have high incarceration rates.

And I think then the question is what can we do to fight the scourge of crime? Because if we fight the scourge of crime, then we won't have to of course incarcerate as many people,

Jeffrey Rosen: [00:08:50] Professor Hessick, your response to what you've heard Judge Rakoff and Judge Cassell suggest about the causes of mass incarceration and, and maybe focus on causes that you'd like to highlight and including perhaps the topic of your new, new book, Plea Bargaining,.How, how, if at all, does the plea bargaining system fit into the over-incarceration rates?

Carissa Byrne Hessick: [00:09:16] Sure. Thank you so much, Jeff. And thank you for including me. It was an absolute joy to, to read Judge Rakoff's book. It's incredibly well-written and compelling, and I'm delighted to be on a panel with two men who I greatly admire including my former colleague, who I always enjoy listening to. Even though we rarely agree.

I do however, have to agree with him, that we can't ignore that incarceration is a response to crime. It's a response to crimes, some of which involve victims and some of which don't. And one of the questions we need to be asking ourselves is why is incarceration the first and sometimes the only tool that we use to address crime?

A number of people have written very persuasively about other approaches that would help to address the sort of victimization that Professor Cassell was mentioning, including increased social services spending other sorts of revitalizations in some of the neighborhoods where we see high crime rates. But instead, what we see is a rush to put people in prison.

I'm in the middle of a big empirical project on state legislatures, and I can't tell you how often I read through testimony where somebody has committed a crime. There's already a book, a law on the books dealing with that behavior. But the response of the legislature is to pass a new crime or to lengthen sentences. On some level, what we need to do is we need to recognize that just putting people in prison, isn't going to solve the problem of victimization.

It's one response, but it's probably not the most effective. So why do we have so many people in prison? We've gotten really good at that on some level, I should say. We've gotten very good at that. The system has been changed, so that's everyone expects when charges are filed, that there will be a conviction.

Not that there'll be a trial or a jury, but that there will be a conviction. We used to have much higher trial rates in this country. And along with those higher trial rates were a significant number of acquittals. And I think that frankly made people uncomfortable. And it was easy to argue that we needed broader laws or heavier sentences to avoid those sorts of acquittals and to get people to plead guilty.

I don't think it's any accident that as the criminal trial rate bottomed out, so did the civil trial rate. I think Judge Rakoff captures this very well in his book that the justice system just isn't in the business of dispensing justice anymore. It's in the business of processing cases, and those are very different things.

And I think if you like efficiency, you might be able to defend what we have now, even though it's horribly inefficient in some ways, But if you care about reaching trying to figure out what actually happens and trying to figure out what's the best way to deal with the individuals involved, then the system we've set up in the United States right now, isn't the system that you're, that you're going to want.

Jeffrey Rosen: [00:12:37] Wow. Powerfully said. Our criminal justice system is not about dispensing justice, but resolving cases. Judge Rakoff, you have a chapter. Your second chapter is Why Innocent People Plead Guilty, and you include, really stark statistics about plea bargaining, which I'll just share because when I learned them long ago in law school they surprised me, and I know they'll be striking for our friends who are watching.

n 1980, you write 19% of all federal defendants went to trial; by 2000 the number had decreased to less than 6%; by 2010, to less than 3%, where it's remained ever since in the States. The figure for criminal cases going to trial is now down to almost 2%. What should our friends make of the fact that nearly all criminal cases do not go to trial, but instead settle with plea bargains and other means, and what, how does that affect why innocent people plead guilty?

Jed Rakoff: [00:13:33] So the common theme to this change is as these in my view, harsh laws were passed in reaction to rising crime in the 60s, 70s, 80s you see a direct correlation with the decrease in jury trials. And the reason is clear the--

if you go to trial, the prosecutor has alleged in his indictment, voted by the grand jury every crime that he thinks he can reasonably prove beyond a reasonable doubt. And so now with mandatory minimums and guidelines and career offenders, you're facing 20, 30, 40 years, even if you're relatively low level in say a big drug conspiracy.

So what is a prudent defense counsel -- and I was a defense counsel for 15 years-- what do you do at that point? You go and you plea bargain with the prosecutor and you say, look, my guy is really not that bad. He was at the low end. How about letting him plead to a lesser included offense or a superseding charge that will only have maybe five years mandatory imprisonment as opposed to 20 years.

And the notion that your client will turn that down just because in some cases he's innocent overlooks the risk that he is taking. And the risk he's prepared not to take. Here are some statistics that are even worse. I'm sorry to say than those in my book, these again are from this was I looked this up today.

I'm actually I have a criminal trial going on. So there is at least one jury trial left in the United States. But I took a few minutes to look this up. The Innocence Project, which has used DNA to exonerate now over 375 people who were accused and found guilty of really serious crimes, murder, rape very serious crimes.

Of that 344 or about 12% pled guilty to crimes that we now know they were factually innocent of. But here's even worse. There's something called the national registry of exonerations. And that covers all types of exonerations for the last 30 years or so. And that has now recorded 2,754 exonerations. Of that, 569 or about 21% were people who pled guilty.

I mean, this is staggering. These are people who are innocent, who are doing time in prison, which is no fun because they didn't want to risk having to face a much higher penalty if they were convicted at trial. These are also people who often are very cynical about the legal system. Don't believe the system will exonerate them.

But it's really more than anything, the risk that they want to avoid the risk of very long time that drives this unfortunate situation. So. That is, that's the gist of it.

Jeffrey Rosen: [00:17:09] Thank you very much for that. Judge Cassell Judge Rakoff just said, people plead guilty 'cause they're afraid, even though they're actually innocent, they may be wrongly convicted.

And yet you've recently published important articles arguing that the rate is actually lower than estimates when it comes to wrongful convictions. Your article, Overstating America's Wrongful Conviction Rate: Reassessing the Conventional Wisdom About the Prevalence of Wrongful Conviction talks about the growing body of academic literature, about the problem of wrongful convictions.

And you also have contributed to a symposium about how often innocent people are actually convicted. Tell us about the data and your conclusions on it.

Paul Cassell: [00:17:50] Let me, let me be clear. In each case of a wrongful conviction, of course, it's something that the system should work very, very hard to try to avoid, but there are trade-offs involved here, and I think that we need to put them into some sort of context. As Judge Rakoff mentioned, they're about 2 million people a year that go into custody. And if you go back as I think some of his statistics that he's just citing go back for, let's say 20 years, you're now looking at a pool of, let's say 40 million cases.

Now, can we find some cases in that pool of 40 million where innocent people have been convicted? Sure. Certainly we can, as he points out and others have pointed out, but what are, what are the lifetime risks here? I, it's obviously difficult to measure that precisely. There isn't a, a sheet somewhere that totes up exactly how many innocent people were convicted, but we can make reasonable estimates.

And the articles that you just cited by me attempt to do that. I come up with a figure of about a one out of 150,000 persons face a lifetime risk of being convicted wrongfully and sent to prison for a violent crime. And if you do the math, it turns out that you're about twice as likely to be struck by lightning in a given year, as you are to be wrongfully convicted and sent to prison for a violent crime. So that's not to say we should get rid of lightning rods or that we should get rid of protections in our criminal justice system against convicting the innocent. But it is to say that we need to take account of the relative relative risks here.

What can we do to reduce the risk of wrongful conviction? I, I certainly am in favor of that. And I think one of the big problems with our criminal justice system is something that Judge Rakoff's book does touch on, although I think I would give it perhaps even some more emphasis. A lot of what goes on in America's criminal justice system today does not deal with the substance of cases, but procedure associated with cases.

We seem to spend a lot of resources litigating -- did the police get a search warrant? Did they properly give Miranda warnings and different things like that? And that seems to be an area where defense attorneys then prioritize their efforts. I think we need to change that and we should be prioritizing the question, is this person guilty or innocent?

For example, one of the things I was surprised to learn in some of my research is apparently it's an accepted strategy for defense attorneys not to ask their clients whether or not they were guilty of the crime, because if they find out the person's guilty, then, then that may play certain restraints on the kinds of defenses they can then raise.

So I would change the rules so defense attorneys are required to ask their clients, did you do it? And then try to investigate that particular question with more aggressiveness than seems to be the case that right now,

I think we could modify doctrines like the Miranda doctrine, which places a lot of emphasis on -- what did the cops say? And what kind of waiver forms did they use? We could change that for example, to videotaping of interrogations, and maybe give the police more latitude to ask questions. And in that way we could move away from rules that focus on procedure and begin to focus on substance, including the substance of whether someone is guilty or innocent.

Jeffrey Rosen: [00:21:02] Thank you very much for all that. Professor Hessick how do you, what do you make of on the one hand Judge Rakoff saying that innocent people actually will plead guilty because they don't trust the system to exonerate them. And Professor Cassell saying actually in the aggregate, very few innocent people are convicted.

And I, I have two specific questions, just one of our friends asks does the judge have to accept a plea bargain? And I wonder if you could also tell the remarkable story you shared at a conference in 2018 about a public defender in the Bronx who told you he'd never been able to convince a client to reject the plea deal, no matter how bad that plea deal was, if it included immediate release, and the innocent client who actually pled guilty.

Carissa Byrne Hessick: [00:21:43] Sure. I'd be happy to. And let me, let me say something let me say something at the outset, which is, I totally appreciate why Judge Rakoff is talking about innocent people pleading guilty.

I opened my book on plea bargain with a story, about a gentleman here in North Carolina, Damian Mills, who pleaded guilty to a crime he didn't commit. It's a powerful story. But the answer in my mind, at least to why innocent people plead guilty is because everyone pleads guilty. We aren't able to appropriately sort the innocent and the guilty at the beginning of a case.

And the pressure is to get people to plead guilty, and that pressure is placed upon the guilty and the innocent alike. One, one instance of this that stands out to me involves a very guilty defendant who he and his father were arrested for growing large quantities of marijuana in their farm. I believe it was in upstate New York. And he told his lawyer, he wanted to go to trial and the lawyer was like, no, no, you shouldn't, you shouldn't go to trial.

And he's like, no, no, I want to go to trial. And so the lawyer told the prosecutor that they should get a competency hearing for the client. The judge agreed. He had a competency hearing and they thought he was insane. The mental health professional was like, no he's sane, he just wants to go to trial. So then again, they were negotiating and the lawyer was like, I really just can't believe that this guy wants to go to trial.

He's facing enormous, enormous penalties if he goes to trial. So they asked for a second and then a third competency hearing. The judge, the prosecutor and the defense attorney all agreed, this man must literally be crazy, in order to insist on trial. He eventually went to trial and was convicted and sentenced to some ridiculous amount of time in prison.

And the Second Circuit reversed because the delay in holding him over for all these competency hearings violated his speedy trial right. The case is United States v. Tigano, out of the Second Circuit, it's a 2018 case. But I think that that case illustrates that this isn't a problem with getting innocent people to plead guilty, it's that the system is designed to make everyone plead guilty.

And not just people facing really large sentences. People who are facing minimal penalties, if they're convicted, the system has a way of pressuring them into pleading guilty by insisting that they come back to court again and again and again, before they can finally get a hearing where they have to take time off from work, they might miss a court date.

They have to get subway fare or get -- borrow a car and get childcare for their kids. It's, you know, there's a famous book about this called The Process is the Punishment. Where whether you're guilty or innocent, it's not worth it. The gentleman that I spoke to, the public defender from the Bronx, told me that he, when he was in misdemeanor court, the offer on the table for all of his clients would be, if you plead we'll release you immediately, this is for his clients that were in custody. And he couldn't convince any of them not to take that deal because staying in jail even another day or two, just didn't seem worth it to them.

So in some ways what we've built for ourselves, isn't a system that just convicts everybody. It's a system that's designed to convict. And I just don't see, I don't see how we can fix it just for innocent people. I don't think that that's possible. And I'll add one last thing just to be a total joykill here.

I agree with my former colleague Professor Cassell that we should care an awful lot more about guilt and innocence. The problem is the system that we've built is designed to allow that to be bargained away. In the state of Arizona which has a strong libertarian streak, they passed some really robust criminal discovery bills where criminal defendants could get basically open-file discovery as soon as they were indicted.

So as soon as they had a preliminary hearing or the prosecutor went to a grand jury. So what'd, they do, they started arresting people and offering them deals that were only good up until they got indicted. That's that's what happens in Arizona now.

Maricopa County, that's the big County where Phoenix is, they actually have a specialized court just to process plea bargains of people who haven't yet been indicted. So they set up a system designed to circumvent discovery rules. Which I'm sure professor Casell would agree with me, if we want to sort the innocent from the guilty, we probably need to know what the evidence is.

And yet everyone in the system goes along with it because we've stopped thinking about a criminal trial as a moment to sort the innocent from the guilty. It's -- we just think of it as a moment in time where we're processing people from people who happened to have been arrested, to people who are now convicted.

Jeffrey Rosen: [00:26:39] Wow, powerful examples and a strong suggestion about the costs of moving to a plea-driven system rather than a jury trial system, and all that is given up. Just to all three of our panelists, I'm watching the Q & A box, which is just full of thoughtful, powerful questions. I'm going to keep for at least one more round or so asking Judge Rakoff to put on the table, the broad topics in his book, but all three panelists should feel free to pick out any questions they think are especially interesting in the course of their responses.

Judge Rakoff, you have a chapter on why eyewitness testimony is so often wrong, as well as a chapter on the failure and future of forensic science. And that's related to yet another chapter about the future of the death penalty, will the death penalty ever die? Why don't you share some of your main thoughts on all of those points?

Jed Rakoff: [00:27:34] Forensic science and eyewitness testimony have proven to be often very inaccurate, but they're very different. Let me start with eyewitness testimony. Eyewitness testimony is very powerful. Typically this is a bystander who just happened to see a crime being committed.

And they take the stand. If a case goes to trial or they tell the prosecutor, if the case goes to a plea bargain, I am a hundred percent sure that Mr. Jones -- pointing out a photograph or in court, the actual defendant -- is the person I saw commit this crime. According to the Innocence Project, 70% of the cases where they were able to show from DNA that the person was actually innocent, involved eyewitness testimony in which an eyewitness testimonies -- eyewitness said that that defendant had committed the crime.

And I'll give you just one example to illustrate, the case of Kurt Bloodworth. He was convicted in 1984 of rape and murder. And there was no physical evidence. There was no circumstantial evidence, but there were no fewer than five eye witnesses who said that they had seen him either commit the crime or at least in the vicinity of the victim just before the crime was committed. And so not surprisingly, the jury found him guilty.

So for years, he asked for DNA. And finally, after being refused four times by the courts, the Innocence Project got involved and they were able to convince the court to let them test the DNA that had been taken from the victim, from the semen that was found in her vagina when she was examined.

And what that showed was that Mr. Bloodworth was totally innocent. And it also showed that another person was totally guilty. A person that had been a suspect, but the cops had not followed up because of all the eyewitnesses who put it on Mr. Bloodworth. And that fella, because there's no statute of limitations on murder, was then prosecuted and pled guilty and actually confessed, confessed in great detail to how he had committed this crime.

Meantime, of course, poor Mr. Bloodworth spent nine years in prison until that occurred. Why is eyewitness testimony not as good as one thinks it is? Sometimes it's obvious things like bad lighting or things like that. My absolute favorite legal movie as it, I'm sure it is of others is My Cousin Vinny.

And in My Cousin Vinny there is a lot of exposure of what a bad eyewitness testimony can be by people who have bad eyesight or people who are looking through smudged windows, et cetera. But the National Academy of Science did a science scientific study of why this evidence was bad. And I was fortunate enough to be co-chair of that committee.

And what they, what we learned is there are many infirmities in the human perceptional equipment and the human memory that cannot easily be cured and yet are not recognized by most people, including the very people who make the eyewitness identification. And I'll give you just two examples.

One is the racial factor. For reasons not yet known, but it's well established that it exists, people of one race are not as good at identifying the fine facial features of someone of a different race as they are of someone of their own race. And this cuts across all races. So whites are not good at discerning the fine facial features of blacks. Blacks are not good at discerning the fine facial features of whites and so forth.

A different kind of problem is what's called the merger effect, the tendency of the human memory to fill in gaps. So typically an eyewitness may see the perpetrator for maybe two or three minutes and maybe really often focused on the gun or other weapon that's being used but will see the face. And then a few hours later he is shown a photo array by the police.

It used to be mostly lineups, but these days they -- thanks to computers that produce photographic arrays set, typically seven photos of people who look somewhat alike. And then the person is asked to do you see anywhere in those seven photos the person who committed the crime, who you saw commit the crime.

Now the eyewitness studies these very carefully. He knows he's got an important job to do. And finally he will say, well, I think it's it's number two. And number two may have a scar above his right eyebrow. That's not why he's picking him out, and he didn't really remember anything about the scar of the person he saw. By the time he goes to trial, or by the time even that he talks to the prosecutor three months later, those memories will have merged.

And he will now say, I am sure it's this guy. 'Cause I will never forget seeing that scar above his right eyebrow. And what he's really remembering, but he doesn't consciously realize it is you saw that for the first time when he looked at the photo array, not when he saw the actual person, and that leads to inaccurate identifications.

I do want to talk about forensic science, but let me stop there 'cause I've gone on at some length.

Jeffrey Rosen: [00:34:02] Thank you very much for the fascinating examples. Judge Casell do you share Judge Rakoff's view about the limitations of forensic science and of eyewitness testimony or not? I think you you, you may have some different views; and then as you answer, just 'cause we are getting so many questions about potential reforms, if you could begin to introduce the question of what changes you think either from legislatures, judges, prosecutors, police officers, defense attorneys, or other actors might address the concerns that you think are most urgent.

Paul Cassell: [00:34:40] Yes. So this is an area where I, yeah, I agree with Judge Rakoff that we need to be very concerned about eyewitness testimony.

And he's gone through a number of the reasons here tonight, why we should be concerned about eyewitness testimony, his book discusses this at greater length. I would add the caveat, however, that again, when we're talking about the number of cases that are involved, a wrongful conviction, we're talking about a very tiny percentage of cases in the criminal justice system.

And I think there's good reason to believe that that tiny percentage is declining over time. It was interesting, Judge Rakoff mentioned the case of Kurt Bloodworth that was a case from 36 years ago. And if the same facts were to materialize today Bloodsworth would not be convicted because we now have in place a robust DNA infrastructure that would test the information and the evidence that was available in that case.

And so he would never have been charged much less wrongfully convicted. And I think that makes the point that a tiny percentage of wrongful convictions is declining over time. One thing that is not improving over time, however, is our crime clearance rate in this country. I published some articles on this most recently a 2016 article in the Boston University Law Review that talks about America's crime clearance rates.

In 1965, the year before the Supreme Court handed down the Miranda decision police in this country solved or cleared about 60% of all violent crimes. And then when Miranda came down restricting the ability of police officers to get confessions, it fell over the next couple of years to about 45%.

And we've been at that level ever since essentially. And so that's an area where our law enforcement system is not as good as it was even back in 1965. So you mentioned what kind of reforms should we have? I think we should take advantage of technology. And I'll talk again about the area of confessions.

I think what we ought to do anytime someone's arrested in the United States is videotape the interrogation to make sure the police are behaving fairly, they're not coercing someone, not entrapping them with questions that are misleading or something along those lines. But at the same time, I think we should give police officers more discretion to ask those questions and get, get rid of some of the technical Miranda rules that do not focus on guilt or innocence, but focus on, on procedure.

So that would be, I think, one of the kinds of reforms that we could do, and more broadly, I think we need to think about how to refocus our criminal justice system away from procedure and onto the substance of whether someone is guilty or innocent.

Jeffrey Rosen: [00:37:22] Professor Hessick, what's your response to Professor Cassell's provocative suggestion that we should focus less on procedure and more on the substance of guilt or innocence? His specific proposal which is well, well known and provocative, that rather than focusing on a Miranda technicality, is the police should have broader discretion to seek confessions, but they should all be videotaped, that would be accountable.

And then, you know, relate that to your thoughts about Judge Rakoff's concerns about limitations by witness testimony and forensic evidence. And in addition to all that, come up with some reforms -- a simple question. We're approaching the end of our wonderful panel. So let's get as much of your wisdom as we can.

Carissa Byrne Hessick: [00:38:01] I do. So let me say a few things, first of all I think I disagree with Professor Cassell in terms of how much the system focuses on procedure right now. So many cases plead early in the process, they plead before motions could be filed. And the sorts of procedural issues that Professor Casell is talking about can be litigated.

In fact, an agreement not to file those sorts of motions is priced in to many plea bargains, and a defendant who has the temerity to say, I'd like to challenge the confession, is going to be told in no uncertain terms that the plea bargain that they will be offered will be worse than the plea bargain they can get beforehand.

So do we read a lot of cases that litigate these issues? We do read a lot of cases. How often do they get litigated when they actually exist? Far less frequently, I think, than Professor Cassell thinks. And if you believe, and I'm not sure that I do, if you believe that we exclude evidence in order to change the behavior of police officers, I'd say that the police officers know how unlikely it is that their particular activities will be challenged.in a given case. They know that the defendant will likely be offered a plea bargain.

So there's that. I appreciate Professor Casell's point that we don't have good information about how many innocent people plead guilty. And it's possible that people are overstating the number of people who plead guilty.

I, I think we all need to recognize that we're operating with a lack of information, but I will say one thing where I think we probably all do agree. Which is that that risk is not born evenly across the population. Jeff, you, me, Professor Cassell, Judge Rakoff. I don't think any of us are going to be falsely accused of a crime.

I think the chances of that are incredibly low. And even if we were accused, I think we'd probably know the right sort of people to get the review, the second look that we would need in a prosecutor's office. So even if the chances are low, I think it's important to recognize that the chances are higher for some people than for others.

What about the bigger question about problems with eyewitness evidence and forensics evidence? I don't have good answers to those questions except to point out something really depressing. Which is I keep telling you, it's a problem that everyone's pressured into pleading guilty, but the alternative to that is a trial.

And I, I think Judge Rakoff's examples show us, and we know ourselves, trials aren't perfect. Juries are doing the best that they can to figure out what happened, but they don't know for sure. And we're always going to find out that at least sometimes they got it wrong.

Now I think we used to have a sense -- I don't know how long ago that sense existed -- but I think we used to have a sense that the juries were supposed to err on the side of acquittal, right? The famous maxim from Blackstone about 10 guilty men going free. I don't think we feel that way anymore. I think that we acutely feel the injustice of a guilty person being acquitted as well.

And that's the danger that we have when we say we're just going to allow everything to be resolved at trial. What's the answer? I don't know that I have very good-- a very good answer to that, Jeff. I I think part of it is judges being less willing to accept plea bargains that are offered to them by the prosecution and the defense attorney without asking questions about it.

I think in low-level cases we have a justice court model. We have there's one in Salt Lake City, and several other places across the country, where a defendant can insist on a trial and if they get convicted, they get an automatic trial de novo in a, in a court of record, a sort of a real court, the justice court isn't, sort of competent to necessarily convict people that way. I studied the justice court in Salt Lake City for my book. And I found that when push came to shove, defendants were much more likely to go to trial there to insist on going to trial. The response was actually prosecutors dismissing a large percentage of cases.

So maybe part of the question is if we've empowered one side to to sort of pressure the other, if we've been powered prosecutors to pressure defendants, by making the stakes too high to go to trial, what would the landscape look like if we tried to even that out?

I mean, I think we've seen that a lot when it comes to the civil system. With tort reform, there was a sense that one side had too much leverage. I would hope that we would start thinking about the criminal justice system the same way and trying to balance out the leverage because that's certainly not where we are now.

Jeffrey Rosen: [00:42:43] Thank you very much for that. Well, we now come to the part of our discussion where we're going to hone in on reforms and Judge Rakoff your book for all of its wonderful virtues -- and I'm sure our friends who've been watching. I hope you've been persuaded to, to read it -- it's not exactly cheerful in its final two conclusions. You have a chapter called Don't Trust the Courts and you also tell us don't really trust the legislatures to be sources of meaningful reform.

So tell our friends why you reached those, those rather dispiriting conclusion in your book, but why you believe that judges and courts should take a more vigorous role in the kind of reforms that you think are necessary. And then give us a sense of what some of those concrete reforms are.

Jed Rakoff: [00:43:30] So the reason I was first motivated to start writing articles about this was what I was seeing in my own court. And I was saying in the courts of my colleagues and my feeling that judges needed to be more vocal about this because the politics in the United States for a long time were very punitive.

You didn't get elected unless you were tough on crime, unless you wanted to lock them up. Um,I, I do want to digress for one half second to say one thing about the, where I disagree with Professor Cassell. He has written a brilliant article on -- that argues that the number of people who are innocent, who are actually convicted is much smaller than many people believe.

This is, however. and I think he would agree, very hard to measure and all sorts of assumptions have to be made. And so they're --. I think from my standpoint, we really don't know the answer. What I do think we know a little bit better is the percentage of people who plead guilty, who are actually innocent.

I gave those statistics at the beginning, from the 11% from the Innocence Project and the 21% from the National Registry of Exonerations: there, we know these people were held to be ultimately proven to be innocent, but they pled guilty nonetheless. And my -- sure, those cases were maybe the subject of particular interest, that's why there was exoneration because lawyers thought maybe there's something about these cases that are doubtful.

But even if we're talking about, you know, 5% when you consider 5% of 2 million people. What is that, a hundred thousand people who are in prison right now who pled guilty to crimes that they did not commit? I don't think that's a trivial number. And I think we have to, to, to recognize that. Now having said all that the what could be done?

Well, some of these problems are more easily solved than others. I do think the starting point would be to do away with mandatory minimums and career offender statutes and as well as what have turned out to be very harsh guidelines.

The, the, the federal judges are on record for many years now, as opposing as a group, mandatory minimums where you're not sentencing the human being before you, or even sentencing the crime before you; you're dealing with some legislation, legislative abstraction that was introduced because it was good politics. So that would be a starting place.

I think that since so much of the present system for better or worse is in the hands of prosecutors, I think we should do a lot more about educating prosecutors, for example, eyewitness testimony that I mentioned before. In my experience, prosecutors are completely unaware of the more subtle problems with eyewitness testimony that results from problems with memory, that problems with perception, things that are deep in the human psyche can't easily be cured.

We don't have a magic wand that says we're going to make everyone's memory much better. But we can at least alert the prosecutors, train the prosecutors to be much more conscious of this when they make the, what is the critical decision, the plea bargain decision. I also somewhat more controversially would involve the judiciary in the plea bargain process earlier.

This is now forbidden in the federal system. There's a rule that says judges can't get involved. And in a way, I think that's kind of strange here. It is 90% of the system you had, judges are not allowed to be involved in it. And I think if judges could get involved much earlier as they do in a few States, Connecticut and Florida, for example you would get fairer results of more results that as was pointed out, are closer to the merits, the real merits of the case.

So I, in my book, I suggest a bunch of other ideas some of which I am quite confident will never be enacted, but the I'll stop with those, those beginning ones.

Jeffrey Rosen: [00:48:37] Thank you for all that, for emphasizing the importance of reform of sentencing practices and mandatory minimums. You note in the book that the First Step Act, a landmark bi-partisan act has passed Congress, which does include some sentencing reform.

And recently in the COVID quarantine period legislatures in some States, including North Carolina have adopted First Step Acts at the state level, that reduce mandatory minimums. Um,Professors Cassell and Hessick, the one rule of Constitution Center panels is we really do try to end on time, which gives us just three minutes before we have to sign off.

I, I think we can give Judge Rakoff the fuller last word, because we're commenting on his great book. But if each of you could just share with our friends in really just a few sentences, which reforms of the criminal justice system you think most important to adopt? That would be great. Judge Cassell.

Paul Cassell: [00:49:30] Yeah for me, I think it's very clear. I think we need more voices in our criminal justice system, specifically the voices of crime victims. I think that could play a role in plea bargaining and many other things. I note, for example, in Pennsylvania, that Marcy's Law, a proposed constitutional amendment to the Pennsylvania Constitution, is currently in litigation before Pennsylvania courts, but hopefully the voice of Pennsylvania's voters will be heard. And the voice of, of voters all over the country that have been adding crime victims' rights measures will be heard because I think that's one way to improve our criminal justice system is by more inclusion of voices in the process.

Jeffrey Rosen: [00:50:10] Thank you very much for that. Indeed. Professor Hessick, last word to you.

Carissa Byrne Hessick: [00:50:14] Yeah. And I'll say, I think we've spent most of tonight, for good reason, talking about very serious crimes with serious punishments, but the vast majority of criminal cases in this country are misdemeanor cases filed in state court.

And so if I had to propose one reform that would change things, it would be aimed at those cases. It would be that we can't keep people in jail pretrial, if they've been arrested for a misdemeanor, they should be presumptively released. And that they shouldn't have to keep showing up at court time and time again, for all of these appearances. We don't require that of civil litigants, and that processes of the punishment pressures them into pleading guilty. They just don't think it's worth it to keep showing up and never have a trial. So those two changes, I think, would dramatically shift the balance of power when it comes to plea bargaining.

Jeffrey Rosen: [00:51:01] Thank you so much Judge Jed Rakoff Judge Paul Cassell, and Professor Carissa Byrne Hessick both for ending exactly on time, beautifully brought in, and also for a really provocative discussion.

Friends, thank you for taking an hour in the middle of your evenings during this busy, challenging time to educate yourself about the Constitution. Please continue that education, first of all, by reading. We must grow in wisdom by, by, by books. And I want you to consider reading Judge Rakoff's new book Why the Innocent Plead Guilty and the Guilty Go Free, Judge Paul Cassell's book Victims in Criminal Procedure, and Professor Hessick's forthcoming book, Punishment Without Trial: Why Plea Bargains are a Bad Deal.

Continue to join these Constitution Center programs. And if you're not a listener, please check out our We the People podcasts, which every week, debate constitutional issues just as we're debating them tonight. Thank you friends. Thank you to our panelists. I hope everyone has a good night.

Jackie McDermott: [00:52:01] This episode was produced by me, Jackie McDermott, along with John Guerra and Lana Ulrich. It was engineered by Greg Scheckler. Please rate, review, and subscribe to Live at the National Constitution Center on Apple Podcasts, or follow us on Spotify and join us back here next week. On behalf of the National Constitution Center, I'm Jackie McDermott.

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