Rakoff on plea bargains

Jed Rakoff came to my attention when he refused to accept a civil settlement between the Department of Justice and a bank, saying it wasn't in the public interest. 

Why Innocent People Plead Guilty

The thesis being that people have every reason to plead guilty when the immense power of the state is behind a prosecution and the chance for a plea bargain removes risk. Folks are risk averse, after all. 

But the problem with everybody pleading guilty is twofold: first, often, individual justice isn't done. Second, justice isn't seen being done. There aren't public records of what happened and who is responsible and why. 

Not practicing criminal law, I don't have a lot to say about the propriety of plea bargains other than to say I think it's likely Rakoff has a point. Perhaps to a lesser extent, I think the same rules apply for civil trials. Settlements are often about who can pay and who will pay, not who ought to pay. There are a lot of reasons for this: clients, no different from anyone else, are risk-averse. Deliver a great result and it's "job well done;" deliver a terrible result and it's "no more work for you." Lawyers internalize this. Trials are expensive - and if the lawyers aren't expensive enough, the experts sure are. Trials are inconvenient and uncertain. 

But trials are also important. They provide guideposts to help determine settlements in similar cases. They give the world - or those who want to find it - a record of who did what and who was at fault. The outcome of a trial likely hews closer to justice than settlements often do. 

It is interesting to watch this thought process be internalized for class actions, where judges are now occasionally rejecting settlements. With regard to which judge I'd prefer, the answer is more often based on willingness to try a case than based on supposed liberal or conservative tendencies.