New York Review of Books
presents lively commentary from three legal experts and a response by Judge Jed Rakoff who, in an article published last month, proposed employing magistrates soon after an indictment is filed to make the system fairer so that innocent people aren’t unjustly pressured into accepting plea bargains.
Former federal judge Nancy Gertner writes of the current system:
It is true too, in view of such threats of long terms in prison, that there is a strong possibility that the innocent may plead guilty. It may well be a rational calculation, given the penalty of going to trial, for there is clearly such a penalty. The prosecutor typically induces a plea by offering a “carrot,” the lesser charge, and at the same time a gigantic “stick.” It is not simply that he may well tack on additional charges enabling mandatory or even consecutive punishments, should the defendant go to trial. He also can threaten that he will introduce evidence of uncharged conduct at the sentencing, or even evidence of counts for which the defendant was acquitted, so long as the defendant is convicted of something. No other common law country in the world enables the prosecutor to seek a sentence based on criminal conduct never charged, never subject to adversary process, never vetted by a grand jury or a jury, or worse, charges for which the defendant was acquitted.
You can read all of the commentary