Remedial reading: Why the Innocent Plead Guilty and the Guilty Go Free, by Jed Rakoff.

“But select capable men from all the people—men who fear God, trustworthy men who hate dishonest gain—and appoint them as officials over thousands, hundreds, fifties and tens. 22 Have them serve as judges for the people at all times, but have them bring every difficult case to you; the simple cases they can decide themselves. That will make your load lighter, because they will share it with you.” – Jethro’s advice to Moses (Exodus 18: 21-22, NIV)

“Settle matters quickly with your adversary who is taking you to court. Do it while you are still together on the way, or your adversary may hand you over to the judge, and the judge may hand you over to the officer, and you may be thrown into prison.” – Jesus, in His sermon on the mount (Matthew 5:25, NIV)

Come the end of this week I should be in Swarthmore, Pennsylvania, attending my 60th college class reunion. As the date draws near, the memories have been coming back, first in a trickle – then in flood – and now I’m losing sleep. I’d registered casually a month or two back, but it’s belatedly dawning on me that this is a big deal. In part that’s because it’s only the second time in six decades I’ve returned to campus to meet with my classmates; the first (and last) was twenty years ago, and that visit was greatly truncated, due to some job conflicts. In part it’s because I’ve been following an online chat of my classmates and am being reminded once again that I was possibly (yeah, probably) accepted by Swarthmore merely to add a smidgen of geographical diversity. In the 1960’s a kid from Pittsburgh was considered an outlier in a group comprising mostly more-talented, better-educated students from New York City and Philadelphia.

I’d been naïve enough when I arrived from a high school fifty percent bigger than the college to wonder if I might not only be one of the brightest but also just possibly one of the most athletic. The correct answer, it turned out, was evident even before the end of freshman orientation: an emphatic none of the above. For four years I was by turns dazzled and inspired and, yes, occasionally depressed by the brilliance and insights of the students and the faculty of the place, as well as their (usually multiple) athletic and artistic gifts.

So, I’ve been channeling my earlier college-age self the past few days, essentially cramming for my finals.

Subscribers to this blog are familiar with my occasional posts under the heading of remedial reading – a look at books (mostly) that I’ve finally gotten around to reading, only to discover I should have picked them up much earlier.

This post and the next two explore remedial reading with a special twist. They’re focused on works by thoughtful, accomplished classmates – folks who’ll be at the reunion. I don’t want to face them without having read some of their stuff. The three classmates in question have written far more than what I’m reporting on here – and my other classmates have published and written extensively as well. So my apologies to all, in every direction, in advance. But this is what cramming is. Those sins of indolence over the past sixty years have caught up with me. I don’t have time to read more than just a few scraps of what’s out there.

Here goes.

Start with the Honorable Jed Saul Rakoff, a senior United States district judge of the United States District Court for the Southern District of New York. But he’s not just any federal district judge, as you’ll see if you check out the link to the Wikipedia article and other sources. In addition to writing some 1800 opinions in his day job (he’s only been a judge since 1995 so that averages out to 60 per year), he’s written more than 150 published articles (about 2-3/year), given 700 speeches (something like one a month), and authored and co-authored a few books (say, one per decadal-class-reunion).

And let’s look at his 2021 book Why the Innocent Plead Guilty and the Guilty Go Free. In case you are harboring any lingering doubts about the book’s contents or where the author is coming from, it’s subtitled And Other Paradoxes of Our Broken Legal System. Simply to read the title evokes a quiver of anticipation. This is what you’re seeing in the headlines every day – including – perhaps especially – this very week. You want what you’re seeing explained. The same applies to the chapter headings. A sample: the scourge of mass incarceration (looking not just at the nation’s extraordinarily high number of jailed, but also the racial inequities reflected in those statistics); why the innocent plead guilty; why high-level executives are exempt from prosecution; the Supreme Court’s undue subservience to the executive branch, etc. Interspersed are chapters dealing with the shortcomings of eyewitness testimony and forensic science, and the potential of the latter; the war on terrorism’s war on law, etc.

It’s all in here! Each heading brings both a sense of déjà vu and an appetite to learn more, drawing the reader in. Read the book through and you’ll realize Jed has relatively painlessly helped you organize all the random bits about justice and the legal system you’ve experienced and been accumulating in your brain over a lifetime into a coherent whole. What’s more, he’s given you greater insight into why things are the way they are – and laid out options for improvement going forward. These include stripping prosecutors of some of the unchecked opportunity for intimidation they enjoy in the early hours of the legal process, assigning judges a greater role in any plea bargaining, giving judges more latitude in their sentencing, prosecuting corporate executives for criminal behavior versus levying fines on the corporations they lead, and much, much more.

Bottom line? You really want to read this book – and whenever the opportunity presents, use what you’ve learned to ratchet the legal system a bit closer to one America can view with pride. To further whet your appetite, you might view one of the several video interviews on line. Here’s a sample, from C-SPAN.

Friday at 3:30 Jed Rakoff will be moderating a panel with the title Distrust of Science in America and What Can Be Done About It. Wouldn’t miss it for the world.


One closing note: Unsurprisingly, a few of the book’s recommendations call for additional investment in the legal system infrastructure – more courts, more judges, and more trial by jury, and the like[1].

Which is where the two Biblical passages come in – one from the Pentateuch and the other from the New Testament. In the first, Moses, the lawgiver, found himself overwhelmed with the daily task of settling disputes arising among the vast migrant people under his charge. His father-in-law, a Midianite, suggests a judicial infrastructure. Twelve or so centuries later, Jesus, surveying the court system that resulted, reminds his hearers, in effect – you really don’t want to become entangled in the legal system. Whatever it takes, you and your adversary should muster the forgiveness, own up to any accountability, and rally the will to compromise that will enable you to resolve your differences on your own. True then. True today.

[1]This latter reality reminds me of another book, one I read several years ago, entitled The Future of the Professions: How Technology Will Transform the Work of Human Experts, by Richard and Daniel Susskind, a father-son team. They note, in brief, that not only lawyers, but also doctors, financial advisors, educators, journalists, and many other professionals (even pastors and rabbis) are too few in number and too costly to meet the needs of society. They go on to discuss the impact technology in general and AI in particular might have on the professions broadly. Another must-read.

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