Judge Rakoff laments dwindling access to courts

Judge Jed S. Rakoff writes in the New York Review of Books how limited access to the courts has eroded faith in the American justice system.  He focuses on both civil and criminal courts and here is an excerpt on criminal trials:

While US citizens thus no longer have much real access to their courts in many civil and regulatory matters, you might think they would still have meaningful access in criminal cases, which are beyond the jurisdiction of any administrative court, let alone private arbitrators. But in reality, the real decisions in criminal cases are made by the prosecutors, not the courts. This is because, as a result of draconian and often mandatory penalties imposed by both Congress and most state legislatures during the last decades of the twentieth century, it is much too risky for any defendant, even an innocent one, to go to trial.

Instead, over 97 percent of those charged in federal criminal cases negotiate plea bargains with the prosecution, and in the states collectively the figure is only slightly less, about 95 percent. In most cases, as a practical matter (and sometimes as a legally binding matter as well), the terms of the plea bargain also determine the sentence to be imposed, so there is nothing left for either a judge or a jury to decide. While the immediate result is the so-called mass incarceration in the United States that has rightly become a source of shame for our country, the effect can also be seen as just one more example of the denial of meaningful access to the courts even in the dire circumstances of a criminal case.

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