Pace Law’s Distinguished Fellow in Criminal Justice Mimi Rocah recently appeared on the “Law & Crime” network to discuss the government’s use of a cooperating witness with host Caroline Polisi. Ms. Rocah explained the process of using a cooperating witness in a federal prosecution. Although a cooperator must first plead guilty to the highest possible crime (and possibly other unrelated crimes), the incentive to cooperate in a federal investigation is significant. If the government finds that the cooperator has information against more culpable parties and they testify truthfully, the government will ask the judge to sentence the cooperator below the mandatory minimum under the sentencing guidelines. See the interview here.
See Rebecca R. Ruiz, Attorney General Orders Tougher Sentences, Rolling Back Obama Policy, New York Times (May 12, 2017).
POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.
The Honorable Jed S. Rakoff, Senior Federal District Judge serving on the Southern District of New York, is one of the most distinguished federal judges and one of the most outspoken on criminal justice issues. A previous PCJI post reported on Judge Rakoff’s recommendations for the process of plea-bargaining. In November 2014, the judge addressed this issue further in an article he wrote for the New York Review of Books.
Prior to assuming the bench in 1996, Judge Rakoff was a federal prosecutor in the Southern District of New York, where he served as Chief of the Business and Securities Fraud Prosecutions Unit. He subsequently entered private practice and worked, among other assignments, as a defense lawyer on securities law prosecutions.
Judge Rakoff has been a friend of the Pace Law School community. He has on several occasions judged Pace’s Grand Moot Competition. He has also mooted Pace’s International Criminal Court moot court team, drawing on his experience as an advisor to International Criminal Court prosecutors at The Hague.
In an article published in the May 21, 2015 issue of the New York Review of Books, Judge Rakoff thoroughly reviews the issue of mass incarceration in the United States. The judge recently addressed this issue further in a speech he delivered at a conference at Harvard Law School in April 2015.
The judge notes that while the population of the U.S. is about 5 percent of the world’s population, U.S. prisons house nearly 25 percent of the world’s prison population.
Judge Rakoff attributes these statistics in large part to strict sentencing laws adopted, beginning in the 1970s, by Congress and State legislatures. These laws, which included mandatory minimum sentences for both violent and non-violent crimes, were intended to reduce the high rate of violent crime the U.S. was experiencing in the 1960s and 1970s. “The dictate common to all these laws,” the judge writes, “was that, no matter how minor the offender’s participation in the offense may have been, and no matter what mitigating circumstances might be present, the judge was required to send him to prison, often for a substantial number of years.”
In the years following adoption of these laws, the U.S. crime rate significantly declined. “The unavoidable question,” Judge Rakoff says, is whether the decrease in the U.S. crime rate can be attributed – either wholly or at least in some part – to the adoption of these strict sentencing laws. Judge Rakoff reviews several analytical studies that attempt to answer this question. The judge notes that the answer to this question is especially important because of the social effect of these laws: “by locking up so many young men, most of them men of color, we contribute to the erosion of family and community life in ways that harm generations of children, while creating a future cadre of unemployable ex-cons many of whom have learned in prison how better to commit future crimes.”
Judge Rakoff’s conclusion from the evidence presented, and the claims made, in these studies is that “one cannot fairly claim to know with any degree of confidence or precision the relative role of increased incarceration in decreasing crime.”
To rebut public belief to the contrary, the judge writes that
those whom the public does respect should point out why statutes prescribing mandatory minimums, draconian guidelines, and the like are not the solution to controlling crime, and why, in any case, the long-term price of mass incarceration is too high to pay, not just in economic terms, but also in terms of shared social values.
Federal District Judge Jed S. Rakoff has a long-standing reputation for being an honest, open-minded, and fair jurist when presiding over criminal cases. He has continually shown the courage to address some of the most profound issues within our criminal justice system, and has always taken the “high road” in doing so. Many criminal defense practitioners have lauded Judge Rakoff’s judicial wisdom as well as his “no-nonsense” attitude when dealing with prosecutors that play fast-and-loose with their ethical obligation to disclose favorable evidence.
According to Professor Peter Widulski of Pace Law School, who once served as a law clerk for Judge Rakoff:
Judge Rakoff is one of the most brilliant and respected members of the federal bench. He is a man of the highest integrity, and his dedication to the law is a model for all jurists and lawyers. This dedication is manifested not only in his work on the bench but in the extensive teaching he has done for many years at Columbia Law School.
Recently, Judge Rakoff has proposed innovative changes to help reform the plea-bargaining process. He suggested a new process whereby magistrate judges would hear evidence and issue plea bargaining recommendations pre-trial. Such proceedings would allow both the prosecution and defense an opportunity to present relevant facts, and to weigh-in on the evidence likely to be presented by the government at a trial.
Judge Rakoff explained that such a process would bring “plea bargaining from behind closed doors and relieve pressure on the defendants deciding whether to risk a longer sentence by heading to trial.” He also noted that judges should become more involved in the process to protect defendants from feeling bullied into pleading guilty and help prevent overzealous prosecutors from using mandatory minimum sentences as a coercive bargaining chip.
Judge Rakoff estimates that from 1% to 8% of the prison population may be the result of false guilty pleas. He notes that the “current process is totally different from what the founding fathers had in mind.” He explained that more needs to be done to protect innocent people from coerced pleas –as “even 0.5% [of false pleas] would total more than 10,000 [innocent] people” in prison.
In 2009, Judge Rakoff was also outspoken about sentencing inequities created by mandatory minimums for firearm offenses. In Unites States v. Ballard, Judge Rakoff refused to submit to the government’s request to impose a Guideline range sentence on non-gun counts, and to stack consecutive mandatory sentences for each firearm conviction on the defendant’s armed robbery counts. He noted that the case did not warrant the 64-year sentence advocated by the prosecution and refused to become a party to such an “unconscionable result.” He found that the imposition of a one-month sentence for the non-firearm counts was proper given the two consecutive 25-year sentences required under 18 U.S.C. § 924(c).
Judge Rakoff explained that the case was illustrative of the distorting effects of mandatory minimum sentences, given that a co-defendant was given a plea bargain excluding mandatory minimums, and obtained a sentence of 168 months in prison. He observed that the extreme sentencing disparity between the co-defendants was simply a result of one exercising his constitutional right to go to trial –while the other defendant did not. He noted that
[w]hen the letter of the law so far departs from justice as to become the instrument of brutality, common sense should call a halt.
In 2006, Judge Rakoff also took a courageous stance against the disproportional sentencing recommendations that may occasionally arise in a case under the Sentencing Guidelines. In United States v. Adelson, Judge Rakoff imposed a non-guideline sentence of 42 months imprisonment to a defendant convicted of conspiracy, securities fraud, and the three of the false filing counts -although the Government argued that the Sentencing Guidelines, if properly calculated, called for a sentence of life imprisonment.
Judge Rakoff noted that what the case “exposed, more broadly, was the utter travesty of justice that sometimes results from the guidelines’ fetish with abstract arithmetic, as well as the harm that guideline calculations can visit on human beings if not cabined by common sense.” He concluded that “[t]his is one of those cases in which calculations under the Sentencing Guidelines lead to a result so patently unreasonable as to require the Court to place greater emphasis on other sentencing factors to derive a sentence that comports with federal law.”
It is to be hoped that all members of the Bar will rally behind Judge Rakoff to help facilitate reform to correct the injustices caused by the combination of our plea-bargaining process and harsh mandatory minimum sentencing.
A true leader of his time, “Judge Rakoff enjoys well-deserved admiration for fairness, and he has the courage and insight to address important issues of law and the administration of justice, without fear or favor” said Professor Widulski.
- Daniel Beekman, Judge Jed Rakoff says Plea-Deal Process is Broken, Offers Solution, New York Daily News (May 27, 2014).
- David G. Abrams, SDNY Judge Takes Exception to Stacking of Mandatory Minimums, New York Federal Criminal Practice Blog, (April 16, 2009).
- United States v. Ballard, 599 F.Supp.2d 539 (S.D.N.Y. 2009).
- United States v. Adelson, 441 F.Supp.2d 506 (S.D.N.Y. 2006).