Garrett Snedeker analyzes proposed reforms to the criminal justice system as presented in Judge Rakoff's Why the Innocent Plead Guilty and the Guilty Go Free. Rakoff's arguments against "mass incarceration," the death penalty, and the treatment of detainees are dismissive enough to alienate rather than convince his opponents.

Some excerpts:

"The slim 178-page book is a collection of essays Rakoff initially published at the New York Review of Books. Rakoff, a federal judge who has taken senior status from the Southern District of New York, walks readers through what he views as noteworthy ills of the modern American legal landscape and his proposals to remedy them. To be sure, his chapters on the underenforcement of white-collar crime and the overemployment of plea bargaining are quite informative. However, three subjects, on the incarceration of criminals, the death penalty, and detention of accused terrorists, are misplaced targets of Rakoff’s ire. They exemplify an unfortunate trend throughout the book: one missed opportunity after another opportunity to convince anyone who might disagree with him."

"As Rakoff seeks to reduce sentences and return convicted criminals to civilian life, 2020 featured one of the starkest year-over-year increases in crime in American history. Heather MacDonald reports that 'the local murder increases in 2020 were startling: 95% in Milwaukee, 78% in Louisville, Ky., 74% in Seattle, 72% in Minneapolis, 62% in New Orleans, and 58% in Atlanta.' Rakoff’s idea that at present 'brave' judges should begin more aggressively defying the citizenry’s input on mandatory minimums while facing stark increases in crime seems ill-timed."

"...[I]n telling an emotional story about his brother’s brutal murder and his moving on from his initial desire to see the death penalty meted upon his brother’s killer, Rakoff unfortunately fails to articulate the retributivist case for the death penalty either for his brother or for those who sought justice in Charleston. For example, In Eichmann in Jerusalem, Hannah Arendt powerfully argued in the context of the Holocaust that someone may do something so evil that no one should share the earth with that person. Relatedly, legal scholar Hadley Arkes writes on the importance of retributive justice, 'It makes a profound difference when we don’t begin by ruling out capital punishment in those "smaller murders"… For what we are saying then is that we take those lives quite as seriously, we attach as much importance to them, as to the lives of those uncles and aunts, grandfathers and grandmothers, who died in the Holocaust.' Instead, in a regrettable blind spot, Rakoff fails to acknowledge that the retributivist case explains as much support for the death penalty as his claims that the death penalty is a symptom of 'systemic racism.'”

"Rakoff bemoans the judiciary’s 'hands-off approach to dubious practices associated with the war on terror.' Yet, this 'hands-off approach' draws upon the logic underlying the separation of powers. Federal judges, with their role confined to specific cases and controversies, lack not only the institutional competence but also the accountability to determine the course of our national defense. As I have written in these pages, the executive’s duty of 'maintaining a sovereign defense… is never "out of session" as a legislative or judicial body often are.'”

Read the full piece here.