Preet Bharara: I’m pleased to welcome Judge Jed Rakoff on the podcast.

 

Jed Rakoff: It’s a pleasure to be here.

 

Preet Bharara: I don’t know if you know this, your Honor. You know, when I used to appear in front of you—and I did many times—I was scared of you a little bit. And there are prosecutors, young and old, and defense lawyers who were a little bit nervous to appear in front of you. Do you try to have a certain kind of demeanor in court, or do you think you just—judges should just be themselves?

 

Jed Rakoff: No, I don’t think judges should be themselves in the sense of too informal or too conversational. Unlike, for example, the conversation we’re having now, when a judge puts on the robe, you are no longer your individual with your individual idiosyncrasies. You are representative of the rule of law. And that’s a very humbling but also important function, and you need to conduct your court with the seriousness that that entails. I’m not out to intimidate anyone, but what I am out to do is make sure that they understand everything that goes on in a court is serious business and needs to be taken seriously.

 

Preet Bharara: But I’ve been there when you crack jokes. You will crack jokes on the bench.

 

Jed Rakoff: Well, the things is, when I was a lawyer and I would crack jokes, no one would laugh. Now, everyone’s required too, so it’s very ego-satisfying.

 

Preet Bharara: I believe it’s in the rules. I laughed too. I’m still laughing. There was a time when people thought they had to laugh at my jokes, and that doesn’t happen anymore either.

 

Jed Rakoff: Well, you know, [?merits we’ll allow] [00:01:28].

 

Preet Bharara: Did you—would you like to be described as a tough judge?

 

Jed Rakoff: Tough but fair is what I think is what most judges aspire to. And I know—again, it is not because I don’t have the highest respect for the lawyers. And many lawyers are nervous when they’re in court. Many of them have worked very hard and are disconcerted if the judge asks them a sarcastic question or a difficult question. But the object of this whole process is to get at the truth and to resolve disputes in accordance with the law. And that has to be take with a degree of decorum and high seriousness that can sometimes be intimidating. When I was a practicing lawyer, and I was for 25 years before I went on the bench, there was never a time that I appeared in court when I wasn’t nervous as a cat. But I think that’s a good thing. I think that reflect my knowledge and the knowledge of every lawyer that this serious business.

 

Preet Bharara: This is a broad question. What is your view of the proper role of the judge? And the reason I ask is there’s this ongoing debate from time immemorial since there’s been any kind of judicial system of whether the judge is supposed to simply decide disputes that appear before him or her, call balls and strikes, like Justice Roberts famously said at his confirmation hearing, or have his or her eye more broadly on what justice is and righting wrongs, as opposed to figuring out what the law strictly allows or requires in a certain case.

 

Jed Rakoff: So, although that is, as you say, an ongoing debate, the truth is that most judges are in the middle of that, including myself. Your first and immediate duty is to decide the dispute before you, and you have to decide it in accordance with the law. But the Anglo-American legal tradition is one of the law developing from case to case. And there are many, many cases—I would probably say the majority of cases—where you have a certain flexibility, and you can move the law forward or you can move the law backward, or you could just leave it static. And in deciding how to address that, I think a judge, a good judge, says to herself or himself, have circumstances changed? Is this different? Is that precedent that was set in 1850 no longer really relevant to the situation we’re confronted with today?

 

Now, a district judge has the further problem that you’re bound by your immediate superiors, the court of appeals, and ultimately, by the Supreme Court. So, you have, in some ways, less flexibility. On the other hand, it’s at the district court level, the trial court level, where the facts get decided, or the facts often drive the law, as the saying goes. And the outcome legally is often affected by the facts of the case. I will, with great apologies, tell one more joke.

 

Preet Bharara: Please.

 

Jed Rakoff: So, this is to illustrate the difference between the three levels of federal courts. So, three judges went duck hunting. It was a Supreme Court justice, a court of appeals judge, and a district judge. And they had a permit that only allowed them to shoot ducks, but no other birds. So, the first flock of birds flies across the sky. The Supreme Court justice picks up his gun, and then he puts it down. He says, “You know, it sort of looks like a duck, but I’m not sure if it meets the original meaning of the word duck. I’m gonna have to look into the Federalist Papers and do a lot of research before I can decide whether it’s a duck or not. Then a second group of birds flies across the sky, and the court of appeals judge picks up her gun, and then she puts it down. She says, “You know, I think it’s a duck, but I don’t feel comfortable making that decision without consulting with my two colleagues on the panel, so I’m not gonna be able to shoot.” And then the third group of birds flies by, and the district court judge puts up his gun, bam! And the bird falls dead on the ground. And he turns to his colleagues, and he says, “Sure hope it’s a duck.”

 

Preet Bharara: How many ducks did you shoot?

 

Jed Rakoff: Every day.

 

Preet Bharara: Every day. Good. On this point, though, of what the proper role of a judge is, is it proper for a judge to have a policy agenda or things that they want to fix?

 

Jed Rakoff: So, the answer is, it depends on the situation. Policy is mostly set by the legislature and by the executive. But there are particular areas where judges are looked to as the protectors. And I’m talking about free speech, the rights of minorities, the rights of unpopular people. Because the executive and the legislature do the will of the majority. But as we all know, there are times when there is a tyranny of the majority

 

Preet Bharara: But why do you call that policy as opposed to just enforcing what the law is? If the law doesn’t protect the minority, is there something you’re supposed to do about it?

 

Jed Rakoff: My only point is that I think judges have a special obligation to take account of the rights of minorities, of the rights of free speech, of the rights of unpopular individuals, because those groups have no one else that will protect them in the way that the majority has the legislature or the executive protecting them.

 

Preet Bharara: But presumably, if you were deciding some question that involves those groups, there is a lawyer representing that interest. Isn’t that sufficient?

 

Jed Rakoff: Well, there are lawyers and lawyers. And in many cases, in fact, people are not represented by a lawyer, so that’s another very major problem in our legal system of unrepresented people. But it’s a substantial number of cases where the judge really has the very awkward role of having to help out legally the—what we call the pro se defendant, the person who’s representing themselves, and yet at the same time, decide fairly between the parties. But more generally, to answer your question, it is rare for most judges—certainly it’s rare for me to sort of spring a whole new theory on people. I think I’ve really only done it once in all the cases I’ve had.

 

Preet Bharara: I’m gonna get to that in a moment.

 

Jed Rakoff: Yeah. But it is not unusual for a judge to ask questions that will bring out ideas and considerations that maybe have not yet been focused on by the lawyers, and which the judge does because the judge thinks that’s an issue that ought to be considered.

 

Preet Bharara: So, you said once that that there are some cases where you could argue that one conclusion should be reached versus the opposite conclusion. And you said, “In such cases, a judge’s policy leanings will often influence the judge’s decision.” Are you saying that that’s just a natural part of human nature, or that that’s how it should be, and that’s okay?

 

Jed Rakoff: It is a natural part of human nature, so you can’t avoid it. I think what a judge has to do is be careful that he’s just not exercising his prejudices, his biases, his personal agendas. That is not proper. That is a violation of your oath as a judge. But if the case is one where there are alternative possibilities and you then have to exercise foresight, that’s an important part of what any judge does. How will this play out, not just in the case before me, but how will it play out in the 500 cases that will come up in the future? And in assessing that, your own broadly defined policy considerations inevitably play a role.

 

Preet Bharara: I want to ask you about a case that you presided over when I was in the office as a line assistant. It was not my case, but two close friends of mine were the prosecutors in that case.

 

Jed Rakoff: Excellent, excellent lawyers.

 

Preet Bharara: You know what I’m gonna talk about.

 

Jed Rakoff: I do.

 

Preet Bharara: And it’s a case in which it’s called the United States v. Quinones. And it’s a case in which the defendant was charged with, among other things, the murder of someone he thought was a confidential informant for the government. And I remember, because the prosecutors were friends of mine, they showed me some of the evidence, one piece of which was a picture of the victim, who had been tied to a chair, beaten, strangled, burned—unclear if he was burned to death or he was burned after.

 

Jed Rakoff: And it was worse than that. He was tortured for hours before they finally killed him.

 

Preet Bharara: As gruesome a crime as you come across.

 

Jed Rakoff: Yes.

 

Preet Bharara: And also, an assault on the justice system and the ability of people not to be held accountable.

 

Jed Rakoff: Yes.

 

Preet Bharara: It’s the worst kind of crime. Now, the office—not under my leadership; I mean, I wasn’t there yet as the U.S. Attorney—decided to seek the death penalty. I think it hadn’t happened in that office in decades, and it happened maybe once or twice since. And I never sought the death penalty in any case during the seven-and-a-half years when I was there.

 

Jed Rakoff: Actually, my understanding was the U.S. Attorney then, Mary Jo White, did not particularly want to seek the death penalty even there, but she was so overruled by central justice in Washington.

 

Preet Bharara: Was John Ashcroft the attorney general at the time?

 

Jed Rakoff: Yes.

 

Preet Bharara: There was some of that playing out. And that was a terrible case in which the parties made arguments, the lawyers on both sides made arguments about whether the death penalty was okay in that case or not.

 

And you decided, in an opinion that surprised everyone, including my friends, that the death penalty was unconstitutional. And you can correct me if I’m wrong, but in a nutshell, for folks who are listening, you basically said that it was a due process violation, the death penalty, because if it turns out that you were actually innocent, you wouldn’t be able to make your case of innocence, because if the death penalty had been carried out, you’d be dead. So, interesting—clever, some might say. Ultimately failed in the court of appeals. How did that come about, that that was a decision you made based on arguments that had not been put forward by any of the lawyers?

 

Jed Rakoff: Right. That’s the case I was referring to, was the only case I’ve been the—if you will, the initiator as opposed to just asking questions and things like that. So, I’ll give you—it’s a background. And I think I have to state at the outset that when I first went on the bench, I was a proponent of the death penalty. My brother had been murdered in cold blood, and if you had asked me at the time of his death, did I favor the death penalty for the guy who murdered him, absolutely. I changed my mind—

 

Preet Bharara: Can I just stop you here for a moment?

 

Jed Rakoff: Yeah.

 

Preet Bharara: Sorry, Judge. So, what you described is a very human feeling, if you’ve been a victim of a crime or you’ve had a close relative. And that’s a terribly tragic story that not a lot of people know about you. Would you describe your desire for the death penalty for his murderer to have been something that you felt in your gut and your heart?

 

Jed Rakoff: It wasn’t based on any consideration of on the one hand or on the other hand, the kinds of reasoning that a judge goes through. It was an instinctive human emotion, which I totally understand. I think to this day, the people who are opposed to the death penalty, many of whom I greatly, greatly respect, are less sensitive to that aspect of human emotion than they should be. And certainly, I felt it in my gut.

 

Preet Bharara: Before, you must have had a view on the death penalty, because you had been a lawyer and thought about these issues. Did your feeling in favor of the death penalty increase?

 

Jed Rakoff: Oh yes.

 

Preet Bharara: Substantially?

 

Jed Rakoff: Yes.

 

Preet Bharara: Yeah.

 

Jed Rakoff: Before the, I didn’t have—I hadn’t been called upon in any of my cases to really examine it. So, I had sort of an everyday person’s knowledge. And I was vaguely aware that there were competing studies as to whether it had a meaningful deterrent effect or not, that kind of policy debate. But it was not something that I had really looked at carefully.

 

Preet Bharara: But also, racial disparity. You were aware of those studies too.

 

Jed Rakoff: I became more aware of the racial disparity later, but I was at least aware of it. And I knew it was much more common in the South, and it was much more common again African Americans, and that there was a long history of black men allegedly raping white women and then being put very quickly to death. So, I was generally aware of that problem.

 

Preet Bharara: So, let’s go back to the Quinones case.

 

Jed Rakoff: Well, I have to give you a little bit more background.

 

Preet Bharara: Sure.

 

Jed Rakoff: So, the big thing that intervened between the time I went on the bench and the time I had this case was the Innocence Project. And they had shown scientifically and definitively through DNA testing that there were dozens—it’s now hundreds—of people who had been convicted of murder and other very serious crimes, had been given either life imprisonment or the death penalty, had been in prison for decades, and then lo and behold, it turns out they were completely innocent. And that was quite mind-boggling to me. As a former prosecutor, I had been under the—what I now consider the illusion that mistakes like that were very, very, very rare. And I don’t think that is the truth, and I think the evidence now is there are more wrongful convictions than we ever imagine. So, that was the fact change that was part of the change.

 

But the other change was a case called Herrera. And it was a case that I had read, and I went back when I first got the Quinones case and reread it to make sure I was—hadn’t forgotten what it stood for. And my view—and it’s still my view, though the court of appeals disagreed with on this—is that that case stands for the proposition that it is a violation of due process to deprive someone who is actually innocent from asserting and bringing forth meaningful proof of his actual innocence, no matter how much longer after the original conviction an appeal it may be. The reason that people disagree about that case is there were multiple opinions. There was no one opinion commanding the majority. But the key opinion, in my view, was Sandra Day O’Connor’s, and she provided the fifth vote for the majority in that case.

And she states emphatically that she’s only joining the majority because she takes it to be the law of the land that it’s never too late to prove that you are factually innocent.

 

Preet Bharara: Right. And your point was that, well, there’s one time when it’s too late. If you get executed.

 

Jed Rakoff: Yes. And for these people who were being exonerated who had been in jail for 20 years, there are a lot of other people who there was strong suspicion may have been innocent too, but it was too late because they had been executed. So, that was, to my mind, when I combined the legal thrust of Herrera with the major change [?and facts] [00:16:38] brought about by the Innocence Project and DNA, I thought this was a new situation and called for a different approach. So, then I had to confront the question, should I suggest it to the parties?

 

Preet Bharara: Yes.

 

Jed Rakoff: I’d never done that before. I’ve never done it since in any thing like that major way. But I felt I had no choice.

 

Preet Bharara: Was it because of the significance of the issue?

 

Jed Rakoff: Yes. And as the Supreme Court has said in many cases, death is different. And so, I raised it with the parties, but I gave the government not one but two chances to litigate it. So, after they had indicated that they thought I was completely wrong, I wrote an initial opinion and said, here’s why I still think I’m going this way, but I want to put it down on paper and give the government another shot to object to it. And I took very seriously their objections, but I still was convinced. I will mention to you, it’s the only case I ever showed to another judge before I decided it.

 

Preet Bharara: Which judge?

 

Jed Rakoff: Leonard Sand, who was a great judge who recently died.

 

Preet Bharara: Yes, he was.

 

Jed Rakoff: Because again, I was bothered by the fact that here it was—I was asserting a theory that originated with me, that didn’t come from the lawyers.

 

Preet Bharara: Right.

 

Jed Rakoff: And so, I thought I should be really hesitant about that.

 

Preet Bharara: Can you share what Judge Sand thought about that?

 

Jed Rakoff: Yeah. So, I showed Judge Sand the first opinion. I showed him the briefs of the government after the first opinion. I said, I’m thinking of coming out the same way. Please take a look at it. I’d really appreciate your giving me your view. And he came back, and he said, I think you’re right. Unfortunately, he wasn’t sitting on the court of appeals.

 

Preet Bharara: Do you think other judges would have had the same reaction, and did you get the sense that there was a bad reaction from other judges? I’ll just—in doing research for this interview, I came across a Wall Street Journal headline that was kind of negative—don’t feel bad. I’ve had them about myself too—about your decision in the Quinones case where they said, “Run for office, Judge,” taking the view that you were engaging in policy like you shouldn’t have. Did you have any other reaction that was less kind than Judge Sand’s?

 

Jed Rakoff: Not from my fellow judges. Judges in my court pretty much don’t comment on each other’s cases.

 

Preet Bharara: Because what goes around comes around.

 

Jed Rakoff: But I got hate mail. I got one death threat, which I had to report to the marshals and so forth. So, I did get some negative feedback. But that’s why they give us life tenure, is so that we can make our decision as best we can and not have to worry about elections.

 

Preet Bharara: Do you think it’s inappropriate for people, whether they’re politicians or editorial writers, to harshly criticize a judge or his or her decision?

 

Jed Rakoff: I think it is perfectly lawful to do so under the First Amendment. And no one should pay any penalty. I think because judges can’t fight back, we are prohibited from issuing a press release—oh, that terrible attack in X or Y or Z is unfair. We can’t do that, so.

 

Preet Bharara: But doesn’t it seem—but there are other people who could argue on a judge’s behalf.

 

Jed Rakoff: Yeah, usually the bar association will come to—I do think—

 

Preet Bharara: Or other reasonable people.

 

Jed Rakoff: I don’t think it’s appropriate for a lawyer to be vociferously critical of a judge except in the most extreme circumstances.

 

Preet Bharara: Is it appropriate for a president of the United States to be vociferously critical of a judge?

 

Jed Rakoff: I think the answer to that is it’s within the president’s constitutional right. But I think he ought to take account of the fact that the judges can’t fight back. So, it can be, in extreme circumstances, a form of bullying. But I wouldn’t say—

 

Preet Bharara: But how can it be bullying if the judges have life tenure?

 

Jed Rakoff: Well, bullying not of the judge, but of the institution. The judiciary is ultimately dependent on the high opinion that the people of the United States have of their judges, otherwise we wouldn’t be able to enforce our opinions; otherwise, we wouldn’t be able to carry on our every day tasks. In theory, we have the marshals to enforce our opinions. That’s just the theory. The reason people follow what we decide is because they basically believe the rule of law, even if they may disagree with a particular decision. So, I do think it’s incumbent on the other branches of government not to undercut that. But that doesn’t mean if President Lincoln had been alive when the Supreme Court decided Plessy v. Ferguson and he had said this was outrageous, I think that would have been consistent with his duties.

 

Preet Bharara: So, it depends on the case, in some ways.

 

Jed Rakoff: Of course. Everything depends on the case.

 

Preet Bharara: Now, so if politicians shouldn’t criticize judges, do you have a view on the propriety of judges criticizing in the other direction? And I say that because you have been outspoken on a lot of things. I’m outspoken.

 

Jed Rakoff: I don’t think I’ve ever criticized by name any elected official at any rank.

 

Preet Bharara: I think that’s right.

 

Jed Rakoff: Judges are forbidden under the code of ethics, for example, of entering into the political fray. And the Supreme Court is not governed by our code of ethics, so that’s a special category that I know you may be trying to sneak me into. But I’m not gonna comment on—

 

Preet Bharara: I was gonna ask—Judge, you anticipate well, that if you had any view of what Justice Ginsburg said last year during the election cycle about Donald Trump.

 

Jed Rakoff: So, Justice Ginsburg is one of the greatest Americans I know. I am just totally in awe of her. Her whole life is one that the rest of us just would hope to emulate even a little bit.

 

Preet Bharara: I would agree with that.

 

Jed Rakoff: She probably made a mistake on that one occasion. I think she acknowledged that. And that was—the rest of us who have never made any mistakes should cast the first stone, so.

 

Preet Bharara: Not here. Did you have any personal feeling—not intellectual angst, but personal angst when you were making the decision about the death penalty in Quinones, given the history with your brother? How did you deal with that?

 

Jed Rakoff: It really came out at the sentencing, because after I was reversed by the shortsighted second circuit—yeah, that’s a joke, but I did disagree with her, the decision. I do think my view will ultimately be the view of the law of the land. But after I was reversed, the case went to trial. The jury had a choice between the death penalty or life imprisonment, mandatory life imprisonment. They unanimously chose mandatory life imprisonment, and they were aware of all the gruesome facts that you’ve mentioned. But they still felt that this was not a case to impose the death penalty. So, then we went to the formal sentencing. In some ways, it was—there was not much for me to do, because it was a mandatory life imprisonment. But the government brought forth the mother of the victim. And she made a passionate statement. I was moved in my heart, and I mentioned—the first time I’d ever mentioned in any public setting what had happened to my brother. But I wanted her to know that I could feel what she was feeling, that I had not forgotten those feelings at all. So, that was the way it came out.

 

Preet Bharara: Are you saying it’s important for judges to have empathy for everyone who appears in front of them?

 

Jed Rakoff: Yes, absolutely.

 

Preet Bharara: You mentioned that statement, and I read something you said about that victim speaking, and it struck me very hard, what you said. You said, speaking about the Quinones sentence, but I think more generally, “The victim wants to have some reassurance that there is cosmic justice, so to speak.” What is cosmic justice, and what is the prosecutor’s role, the judge’s role in making sure that that happens? Because the law is not written for cosmic justice.

 

Jed Rakoff: So, the law deals with technicalities, deals in a broader setting with policies. The death penalty debate tends to be a debate about does it have a deterrent effect and things like that. Those are all important, but they’re missing the human emotional element. Congress, in the law that I have to apply in every single sentence, says that the court must take account of deterrents, and this and that, and “just punishment.” Now, what do they mean by that? What I interpret that to mean is people need to be reassured that there is a moral order; that ultimately, what is true and right and good will win out. And in a world in which so often, that is challenged, and terrible things occur, it is particularly important in the United States that people feel that ultimate justice will be done. And that’s really what I meant. And by the way, it cuts both ways. The victim needs to be very much considered. But the defendant is a human being too, and there’s empathy that has to be exercised in that direction as well. And they’re his—the defendant’s family, there are always many people who have to be taken account of.

 

Preet Bharara: Speaking more about sentencing in cases that are not as life and death as the death penalty case, one of the reasons why I have never been interested in having your role is even though as a prosecutor, we would advocate for certain sentences, I really didn’t want to be a person who has to decide and be the ultimate decider of how many days, weeks, months, years you take liberty away from a human being. I think it would weigh on me too much. And that might surprise some people. And how does it—how do you handle that as a judge? You do it all the time.

 

Jed Rakoff: Well, you’re not alone. I know some very, very fine lawyers who I think ought to have been judges, who would have been great judges, who have declined to even be considered for it for the same reason you are. So, I guess my view is that if someone has to do this difficult job, better that it should be someone who is neutral, who is experienced, who has seen a lot of life, and who can see both sides, or—well, if there are more than two sides, many sides of the situation. So, I think I’m no better at it than anyone else. But I do think the judiciary is well-situated to be the people who decide what a sentence should be. I mentioned that because Congress and many of the state legislatures have taken a lot of that power away from judges with things like mandatory minimums. And that’s terrible. And that means sentences, what you are going to do with this human being who’s done some bad things, but who is also a human being, is going to be decided in the abstract by some law that was passed with no knowledge of any of the individuals who might come up in cases. And as you know, there have even been federal judges who have resigned because they think mandatory minimums required them to give an unjust sentence.

 

Preet Bharara: And even lesser than that. I’ve been in the courtroom when some judges become so moved that they take a break. And I don’t know if they go back and consult a law book, or their faith, or something that’s extrajudicial, and if that’s appropriate or not. But I can’t imagine doing it, and I can’t imagine doing it on a regular basis, even though, obviously, prosecutors make many decisions that have a consequence on sentencing. But one of my question to you is, so that people—

 

Jed Rakoff: Although I have to interrupt on a later note.

 

Preet Bharara: Please, we could use it right about now.

 

Jed Rakoff: Yeah. So, I was talking to the folks here at the studio, and I said, I’m gonna ask Preet Bharara whether he wants to run for governor. And I know he will say no. And that’s a sure sign that he’s gonna run for governor. Now, having now set you up, are you gonna run for governor?

 

Preet Bharara: I am not. I don’t even want to be a judge.

 

Jed Rakoff: See? That’s all the proof I need.

 

Preet Bharara: You came all the way here to ask me that question?

 

Jed Rakoff: Yeah.

 

Preet Bharara: On tape? But to what degree—when you had to sentence someone to a mandatory minimum because that’s what the law required, did you chafe at it?

 

Jed Rakoff: Yes.

 

Preet Bharara: Did you sort of say, I have to do it, and then you go home and have a large Scotch? I mean, how do you and your colleagues deal with imposing sentences they don’t believe in?

 

Jed Rakoff: So, putting aside from the fact that I don’t drink, so it would be a large Coca Cola. But in all seriousness, I try before every sentence—I try to figure out as best I can, with knowledge of all the frailties that any judge has, what is the right sentence in this case, regardless of guidelines, regardless of mandatory minimums, regardless of anything but what I think justice requires. And when it is something very different from what I am required by law to apply, I feel absolutely terrible.

 

As I mentioned, my colleague, John Martin, resigned from the bench just because he couldn’t take that anymore. It is also—looking at it in a much broader sense, mandatory minimums are one of the causes—by no means the only cause—of this terrible problem of mass incarceration that we have in this country, where we’re locking up millions of people, far more than any other country in the world. There’s a couple studies that are so insightful. Juries, if asked after they convict a guy, what sentence will you give, almost always recommend a lenient sentence. The same people, if they read about a crime in the newspaper, say, throw around the key! Lock them up forever! And that’s because they’re only seeing half the story. They are seeing the awful crime. But they don’t see all the innumerable other factors that operate that may often be mitigating factors.

 

Preet Bharara: Right. So, you try a little bit, and you think it’s right, when the sentencing guidelines talk about mostly what the crime was, you think it’s better, and more proper, and more just to focus on the overall character of the person.

 

Jed Rakoff: Absolutely.

 

Preet Bharara: But how can you ever know that?

 

Jed Rakoff: The guidelines are, in my view, totally misguided. They start with the premise—in my view, the irrational premise—that all the many factors, the kind of things we’re talking about, and a host of other factors that inform sentence can somehow be set down as numbers. Two points for this, four points for that.

 

Preet Bharara: It’s a mathematical fetish. And most people who are listening probably don’t realize the under the federal system, there’s literally a grid across the top.

 

Jed Rakoff: Right.

 

Preet Bharara: You have categories of what your criminal history is and how many priors you have. On the left, you have a point system, and it looks more like a bingo card than a recipe for doing justice.

 

Jed Rakoff: You said it very well. And they used to be mandatory. For 15 years, they were mandatory. Now, fortunately, they are discretionary, but they still play a role because the law requires the judge—the very first thing he does at sentencing—to determine what the guideline sentence is. And so, psychologically, it still has an effect.

 

Preet Bharara: I think it’s very easy to criticize the guidelines, and I have negative views about a lot of the guidelines also, and I did as the United States Attorney. But like everything else, the question is, what do you do instead? And one of the reasons that I would never want to be a judge is I’m not sure humans are capable of coming up with a perfectly just system for deciding how many hours, weeks, months, years of liberty you take away from another human being. How can it be that you can know with precision in the eyes of either Lady Liberty, or justice, or anyone else that for this person, six years is enough, as opposed to seven years. And the gap between the six and seven years, when you’re doing this as a business, you don’t give it a second though, really. But that’s a year of someone’s life during which lots of things can happen. It can make the difference between seeing your child graduate or not, or being in a relationship or not, or missing the death of a relative or not.

 

And so, I’m more pessimistic on this idea that you could give more discretion to judges. I don’t know that that ultimately will give you cosmic justice. Do you think that sentencing laws and guidelines are too tough across the board? An the particular thing I want to ask you about, if you have a view, is what the current attorney general, Jeff Sessions, has done with respect to how to treat people who are eligible for mandatory minimums in low level drug trafficking. And at one point, the former attorney general, Eric Holder, issued guidance to the field when I was the U.S. Attorney, saying we should consider not throwing the book at people who were low level, nonviolent, etc. And Attorney General Sessions has largely withdrawn that. Do you have a view on whether that’s good or wise?

 

Jed Rakoff: So, I think you should put it in historical perspective. Congress, not just the attorney general, not just the executive, but Congress as well, steadily ratcheted up sentences for 30 years. This was initially a reaction to the rise in crime in the beginning of the late ‘60s. Crime peaked in 1995. It has gone down every year since then, and yet we continue to apply policies that, if they ever made sense, only made sense in the context of rising crimes. The policy you’re referring to was the policy of both Republican and Democratic attorney generals. Holder was somewhat unique in cutting back on it, and he didn’t do that immediately, but he did eventually. The prosecutor’s defense of all that is that it tends to get people to cooperate. So, the theory is, we only can build cases by getting low level people to cooperate against higher level people, and the way we do that is by throwing the book at the low level people, and then they will flip and give us the case on higher level people. There’s some truth to that. But I think, like all truths, it’s got to be balanced and not made an across the board policy.

 

Preet Bharara: Last question. Quick answer, because I know you have to go teach a class. If you could wave your—

 

Jed Rakoff: At your alma mater.

 

Preet Bharara: At my alma mater. If you could wave a magic wand, and I believe you may have one—and change one thing.

 

Jed Rakoff: The magic wands belong to my daughter, so.

 

Preet Bharara: Well, we can use her magic wand. If you wave a magic wand and change one thing to improve the delivery of justice in the criminal justice system, what would it be?

 

Jed Rakoff: I think I would restore to judges almost total responsibility for a sentence, not only by doing away with mandatory minimums and guidelines, but also, closely related to that, by having judges have some scrutiny over plea bargains, so that it wasn’t the prosecutor who was in effect sentencing or determining the sentence, but it was really the judge. I think when left to themselves to determine what justice is, the judges would do a far better job of sentencing, and we would not have mass incarceration.

 

Preet Bharara: And you say that even though—I trust you’ll agree with me—that there are some judges that have a lot of fallibility, and don’t get it right, and are not as thoughtful as some judges you may be familiar with.

 

Jed Rakoff: So, in this cold, cruel world, people make mistakes. People view things differently, and the only person who ever got it always right was the former U.S. Attorney. But in all seriousness, yes, of course. So, you have to choose, if you will, the lesser of two evils. And I think judges are better at it than any of the alternatives.

 

Preet Bharara: Judge, I want to thank you again for appearing on your first podcast.

 

Jed Rakoff: My pleasure.

 

Preet Bharara: Thank you so much.

 

[End of Audio]