Thank you to the author, publisher and Netgalley for the ARC.
Review of this novel will be posted soon.

Published by Farrar, Straus and Giroux on February 16, 2021

Jed Rakoff covers much more than the two topics featured in the title of this brief overview of the problems that plague the judicial system. His first chapter discusses America’s ridiculous overreliance on incarceration as a solution to crime. He acknowledges a correlation between a declining crime rate and a swelling prison population while reminding the reader that correlations do not prove causation. When I was taking criminology decades ago, I remember a professor arguing that crime rates correlate with age because “crime is a young man’s game.” Crime rates may well have fallen because baby boomers got older, not because more of them were locked up. In any event, Judge Rakoff explains that mass incarceration has social costs that must be weighed against the potential benefits of a declining crime rate. Another punishment chapter explores the perils of using the death penalty in a system that is plagued by mistake and racism.

A few chapters explore the reasons that the judicial system so often imprisons the innocent. Mistaken eyewitness identifications and junk science masquerading as forensic science are two of them. Both subjects have been explored at length in other books and journal articles, but Judge Rakoff’s book is a good introduction for readers who want a quick summary. I particularly liked the judge’s advocacy of the suggestion that forensic science should be conducted by independent organizations, not by crime lab technicians who regard themselves as working for the police. Science should be neutral, but forensic scientists who see themselves as “helping” the police have a proven tendency to slant their conclusions to support an arrest.

The innocent plead guilty because they fear they will get a longer sentence if they risk a trial and lose. The risk is appreciable, given the evidentiary problems and biases that impair the system’s fairness. Judge Rakoff calls for greater judicial involvement in plea bargaining (although perhaps not involving the judge who presides in the case) to assure that the evidence actually supports guilt and that the defendant is actually guilty.

A chapter on brain science is again a useful introduction to the uneasy relationship between a judicial system that holds people accountable for intentional misconduct and a branch of science that can’t tell us what the word “intends” even means. Again, excellent books and articles have been written on the subject that explore the topic in greater detail.

Some of the middle chapters tackle problems in more depth. I particularly liked Judge Rakoff’s nuanced explanation of the Justice Department’s failure to prosecute corporate leaders for financial fraud, opting instead to “change corporate culture” by entering into deferred prosecution agreements with corporations that the companies view as a cost of doing (fraudulent) business.

Other detailed chapters bemoan the federal courts’ loss of authority to correct unfairness in the state criminal justice systems, largely through a whittling down of habeas corpus review. In that context, Judge Rakoff explores the impact of the “war on terror” on the loss of federal authority to assure that states respect the federal Constitution. Congress and conservative justices on the Supreme Court have been complicit in assuring that profoundly unfair decisions in state court, as well as unjust detentions at Guantanamo, are largely ignored by the federal judiciary.

Political observers have long documented the rise of executive branch power at the expense of congressional oversight. Judge Rakoff suggests that judicial oversight of the executive branch in our system of checks and balances has been nearly abandoned by the Supreme Court (particularly, I would add, when the president is a Republican). The judge offers a history lesson that stretches from the Supreme Court’s first Chief Justice to explain how the Court’s view of its institutional power is rooted in a politically expedient deference to a branch that holds greater power (lacking command of a military, the judiciary depends on the executive to enforce its decisions). That deference is particularly strong when the executive branch claims authority to trample rights in the interest of national security.

Along the same lines, Judge Rakoff examines judicial doctrines, including narrow interpretations of standing (the rules that determine who has suffered an injury that entitles a litigant to sue) and the political question doctrine (the notion that some issues, like gerrymandering, are better decided by legislatures than courts), that shield governmental misconduct from review. Another chapter discusses the difficulty of obtaining access to the civil judicial system for a variety of reasons (such as the prevalence of arbitration agreements and the cost of hiring a lawyer — a cost that banks foreclosing a mortgage can bear more easily than homeowners facing foreclosure). He returns the discussion to the criminal justice system by emphasizing an earlier point about the ways in which defendants and their lawyers have grown increasingly powerless, as sentencing guidelines and other procedures divert decision-making authority from judges to prosecutors, who often decide (regardless of the defense lawyr's skill) not just the crime of conviction but the sentence that will be imposed. That regime has resulted in ever-increasing sentences.

All of this will be familiar to people who follow law and the judiciary. The system really is broken. It has been for years. For those who aren't familiar with the problems that Judge Rakoff spotlights, the book serves as an excellent introduction to a variety of problems that need to be addressed. Judge Rakoff suggests possible improvements at various places in the text, but meaningful improvement will only come if America insists upon Supreme Court justices who value justice more than their interest in maintaining a system that is largely designed to keep power in the hands of the powerful.

RECOMMENDED

I've always been so fascinated in this topic, so when I saw there was an entire book written (and by a judge, I knew I had to add it to my list). While the content in this book is extremely well-researched and compelling, I did struggle a bit with the presentation (I was unaware the concept of this book started as essays); but once I got used to it, it was fine. A little dry at times, but a necessary read. I *do* wish, however, that we got a little bit more narrative from Rakoff as a Judge & the first-hand experiences he had with innocent people pleading guilty - what he had in the book was so interesting & I would have loved to read more about that.

Thank you to Farrar, Straus and Giroux & the author for providing me with a copy of the e-book in exchange for an honest review.

I’ve long known that our judiciary system has a lot of loopholes and flaws, but I didn’t know much about what they are. So when I heard about this book, written by a senior federal judge, I immediately wanted to read it. I’m glad I did. It felt like the perfect introduction into this topic — enough information and data to help you understand the situation and how it came to be, but not so much detail as to feel overwhelming or slow.

While it does read a little bit academically (I mean, the guy’s a judge), it’s also broken into very short chapters, and it’s a short book overall, which helps make it feel more approachable. I learned a lot of things I didn’t know before, especially about plea deals and forensics and eyewitness testimony. And while I did feel more engaged with the first eight chapters (which were more about how the system fails people) and a little less with the last five (which were about how the system has failed itself and its purpose), I still learned something new from all of them.

If you don’t know much about the shortcomings of our current judiciary system in the US and want to learn more, this is a good place to start.

Excellent Examination Of US Judicial System. This is an excellent examination of the US Judicial system, from a former US District Court judge. Indeed, the *singular* outright flaw in the ARC copy I read was its lack of bibliography and citations, which I expect will be corrected in the published edition. For the most part, Judge Rakoff's examinations and explanations ring true and he cites several well known works in the field, including Michelle Alexander's The New Jim Crow during the discussion of the problem of mass incarceration. My only quibble - and it is just a quibble, just as the comments I am about to refer to are almost asides themselves - are a couple of points where the Judge makes comments about a couple of cases of a more political nature. (Including Bush v Gore and Citizens United, among perhaps a handful of others.) Overall one of the better examinations of the breadth of the US Judicial system, and even its acknowledged origins as a set of essays isn't really obvious or noticeable. Very much recommended.

"Why the Innocent Plead Guilty and the Guilty Go Free" by Jed Rakoff is an important look at the justice system in America. Rakoff explains how those who are most targeted by America's legacy of oppression are those who become the victims of the criminal justice system regardless of whether or not they actually committed a crime. On the other hand, he explains the reasons why corrupt executives often face no consequences for defrauding the public and how the average worker is losing ways to take legal action when they are actually wronged. Some of the chapters in this book reminded me of the "Justice in America" podcast, which I really enjoyed, so if this podcast piqued your interest then this book probably will too.

As a long time trial lawyer who also teaches about legal topics, I am well versed in the issues raised by the author regarding the criminal justice system in its current form. This book raises many legitimate issues, but without a clear picture of how to implement change. Many of the suggestions set forth are valid, but many require a LOT of money to implement (such as independent crime labs or taking more cases to trial). I'm also not sure what "better" system could be used to oversee plea bargaining. Judges in many states are just as beholden to voters as district attorneys. As the arbiter of a case, judges rarely know as many details regarding the proof as the prosecution and defense. How would they be in a better place to extend a plea offer without becoming just as involved with the facts? I see this book as the starting point of a conversation, but would have loved more discussion of ways to fix these issues that don't raise the standard of proof from "beyond a reasonable doubt" to "beyond all doubt". I was provided a copy of this book for free in exchange for an honest review. I am rating this book 4 stars because I do believe it is a great primer for those who do not work in the area of criminal justice even though I, personally, wanted more from it.

What a thought-provoking read! Plea bargains are an often overlooked part of our criminal justice system and their overuse by prosecutors has been a key factor in creating the conditions that have caused mass incarceration. Excellent investigative writing and very necessary for these times.

Absolutely fascinating. A new perspective on crime and the law, this is the book true crime fans have been waiting for, There are no answers but can anyone really be surprised? At least this brings an important perspective in professional insights to the argument.