Why Do the Innocent Plead Guilty?


Several years ago, Judge Jed Rakoff began writing articles for the New York Review of Books.  The revised essays are the basis for his recent book, Why the Innocent Plead Guilty and the Guilty Go Free, where he concisely shares his views on problems with the current legal system. 

It seems counter intuitive for someone who knows he is innocent to agree to a plea, but Judge Rakoff lays out a pretty clear and compelling reason why this happens so often.  It starts off with good intentions.  Judge Rakoff explains that our desire to crack down on crime and be consistent with sentencing led to the creation of the Sentencing Guidelines, which mandate a specific amount of jail time for a conviction.  However, that change inadvertently led to prosecutors gaining quite a bit of leverage for plea negotiations.  It is common for an unrepresented defendant to feel that the best option is to plead guilty to a lesser crime and receive only a short prison sentence so as to avoid being convicted of a more serious crime, which carries a much longer prison sentence. 

Good intentions seem to play a part in explaining how those responsible for some of the more egregious crimes, such as the people who worked for the banks and perpetuated mortgage fraud in the early 2000s, never got near a courtroom, much less a prison cell.  The DOJ, tasked with investigating and prosecuting this large-scale fraud, decided that it would be too difficult to prove that the high-level executives intended to commit these criminal acts.  Moreover, the DOJ also believed that even if they were successful at prosecuting these large banking institutions, the disruption to the business would have a detrimental effect on the economy, an effect worse than the crimes allegedly done.

The result was that the very largest institutions, banks and corporations, were fined and tasked with self-policing to prevent future criminal acts (rehabilitation as it were), all with the hope that the criminal activity would stop.  The hope was that a better, more ethical culture within the corporation could grow and replace one that was corrupt.  Meanwhile, the individuals responsible for the fraud were never punished.

Other chapters in the books discuss the procedures and processes we have implemented to be better: to rely on scientific methods, even if they might be faulty; to find ways to be more efficient; to focus on catching and prosecuting terrorists.  The unexpected result is that we have slowly eroded away the protections for defendants so carefully laid out in the Constitution. 

The last chapter of the book, ominously titled, “You won’t get your day in court,” outlines the many ways low and middle-income people are frozen out of a fair judicial resolution of their case.  The biggest cause is the expense of a hiring a lawyer. The average person can’t pay for an attorney. Many attorneys won’t take cases on contingency because the payout would be too low to be worthwhile.  Other examples include forced arbitration clauses, or settlement agreements.  The result is that for citizens, “the courts are not an institution to which they can turn for justice, but simply a remote and expensive luxury reserved for the rich and powerful.”

The judge’s frustration is clearly displayed throughout the book, and he concludes that change should come from the legislature. He speculated that might be difficult to do, since most legislators are reluctant to make changes that are seen as “soft on crime.”  Nevertheless, he remains hopeful.  Recently, Congress was pressed by voters to pass the First Step Act, which lowered mandatory minimum sentences on some drug crimes.  He remains cautiously optimistic that American voters will once again rise to the challenge and make other fixes to our legal system.

Jed S. Rakoff, Why the Innocent Plead Guilty and the Guilty Go Free and Other Paradoxes of Our Broken Legal System. New York: Farrar, Strauss and Giroux, 2021.

 

Here’s an update about a couple of core legal resources that all attorneys used in law school.  They are the Restatements of the Law and the Uniform System of Citation, (the Bluebook). These long-established titles have undergone some changes in the past few years.  Regarding the Restatements, the new publishing plan has caused the law library to rethink where the materials should be placed in the collection.

Published by the American Law Institute (ALI), the Restatements of the Law include many titles and their respective supplements, appendices, and numbered new versions.  Various titles cover major areas of law such as contracts, torts, property, judgments, conflict of laws, and others.  ALI began the system in 1923 to issue “restatements” that would promulgate one highly authoritative source stating the common law, with rule-like content and explanatory material.  In recent years, they devised a new numbering system in 2014, and they converted their more specialized “Principles of the Law” series to Restatements in 2015.  The narrower topics appear in more recent restatement titles which reflect ALI’s decision to publish new titles without any numbers.

It’s possible that only a law librarian would savor delving into the details about the changes.  However, our users should know that we’ve departed from our customary scheme of placing all the Restatements in one section of the library.  Our new scheme involves keeping the older Restatements, with their broad subject coverage, in the north reading room where they’ve always been.  The newer, more specialized, topical restatements are dispersed into the collection where similar subject matter is located.  That way, users who are browsing an area (i.e. employment law) will find that a restatement was published for the topic.  The law library continues to acquire the Restatements in print, and they are also available on our Westlaw service.

A new edition of the Uniform System of Citation (aka the Bluebook) is published about every five years.  The library has the current and several previous print editions.  The Bluebook is a combined effort of law review editors at four law schools–Yale, Columbia, University of Pennsylvania, and Harvard.  The 21st edition came out in 2020 and is noticeably smaller than its recent predecessors.  The decrease in size is due the elimination of Table T2, which accompanies Rule 20 on “Foreign Materials,” from the print version.  Table T2 is now online only.

The Bluebook not only describes how to cite to various electronic resources, but it is itself available in electronic format and includes access on mobile devices.  There is a cost for the online version.  The Bluebook editors would like feedback from attorneys and judges and comments can be sent to editor@legalbluebook.com.

For those who would like a very condensed overview of the new Bluebook, the law library also has the User’s Guide to the Bluebook: Revised for the twenty-first edition, by Alan L. Dworsky.

 

Are We More than the Sum of Our Parts?

Cover photo of the Sum of Us by Heather McGhee.

Heather McGhee’s recent book, The Sum of Us: What Racism Costs Everyone and How We Can Prosper Together, dispels the myth that righting the wrongs caused by institutional racism and discrimination is a zero-sum game, that is, what is good for someone else, is bad for me.  Instead, she illustrates many times over how discriminatory policies not only hurt and diminish the target group, but she also writes how these bad policies and practices hurt the community as a whole. 

The book covers many historical and current instances of laws that are aimed at Black people or other minorities.  Each event was followed by how other people, usually poor, White people, are also adversely affected.  For example, just after the Civil War, a critic of slavery named Hinton Rowan Helper wrote a book that asserted that slavery impeded the economic growth of non-slaveholders in the South.  Slavery, which enriched a few, politically powerful landowners, meant that there was little investment in public benefits like schools, libraries, and similar institutions.  His research found that states in the North, such as Maine, had 236 public libraries, while Georgia in the South, had only 38 public libraries.  Similarly, the small state of New Hampshire had over 2300 public schools; Mississippi had only 782.  The net result was that economy in the North was growing, but in the South, the economy was stagnant.  The lack of investment in these public amenities not only hurt the suddenly free but extremely poor ex-slaves but also poor White people as well.

In more recent times, McGhee recalls a case from 1971, Palmer v. Thompson, where the U.S. Supreme Court decided that closing the public swimming pool rather than operating a racially integrated pool did not deprive Black citizens equal protection under the law.  The Court’s reasoning was that Black residents did not suffer any discrimination because they were not singled out by not having access to public pools – White residents were equally deprived.  No pools for anyone. 

There was much resistance in trying to rectify these inequities, because opponents persuaded the public that reforms that gave benefits and resources to one group meant that there were fewer resources for everyone else – that is, they would suffer while others would prosper.  And that did not seem fair.

So how does McGhee propose we move forward?  Her theory is that solidarity is the answer.  In the chapter where she talks about unions, she describes the history of one of the first labor unions, the Knights of Labor.  Their working theory was to include everyone, no matter one’s race, ethnicity, or gender.  All were welcome to join.  They believed that if everyone united behind a single cause, say, an eight-hour workday, or limits on child labor, then management could not use one group of people against the other.  And for a while, that worked.  Many benefits workers receive today are due to the work on unions. 

But as union membership decreased, so did their power.  To illustrate this point, McGhee describes the attempt at starting a union at a Nissan plant in Mississippi that failed.  While many workers wanted the protections from a union, enough people in management, people with longevity with the company, or people who had a chance at upward mobility at the company viewed the start of a union as a threat, and they managed to thwart the creation of the union. 

In the last chapter of the book, she describes the revival of a town in Maine, which was in danger of withering away after the textile industry slowly closed down.  In the late 1990s an influx of Somali immigrants helped revive the economy.  Despite some ugly protesting by White Supremacists, the community, a mixture of long-time White residents and newer immigrants, thrived.  In fact, the combined African immigrant population in the state added over $190 million in state revenue through taxes in 2018.

McGhee concludes her book with these inspirational words:

Since this country’s founding, we have not allowed our diversity to be our superpower, and the result is that the United States is not more than the sum of its disparate parts.  But it could be.  And if it were, all of us would prosper.  In short, we must emerge from this crisis in our republic with a new birth of freedom, rooted in the knowledge that we are so much more when the “We” in the “We the People” is not some of us, but all of us.  We are greater than, and greater for, the sum of us. 

 

Law Day 2021: Advancing the Rule of Law Now

In 1961, Congress proclaimed May 1 as the official date for celebrating Law Day.  It is a chance to celebrate the role of law in our society and to cultivate a deeper understanding of the legal profession.  Each year there is a theme which is chosen to call attention to the law and its impact on our lives.  On Law Day, bar associations, law libraries, professional associations, courts, and many other organizations celebrate by sponsoring educational programs, holding legal clinics, organizing courthouse tours, and more! 

This year’s theme is “Advancing the Rule of Law Now,” to remind all of us that we the people share the responsibility to promote the rule of law, defend liberty, and pursue justice.  President Biden issued a proclamation which can be read here.  Considering this year’s theme, President Biden wrote,

The theme of this year’s Law Day, “Advancing the Rule of Law Now,” is particularly fitting at this moment in our Nation’s history. Recently, we were again called to recognize that democracy is precious and fragile.  We have witnessed grave threats to our democratic institutions and to the rule of law itself. These tragic events have taught us once again that when we are united, we can overcome the greatest challenges and move our country forward — but it takes a commitment to law over demagoguery, and the enforcement of law free from political interference, to do so.

A Proclamation on Law Day, U.S.A, 2021
APRIL 30, 2021

Ramsey County celebrated this year with a program that was sponsored by both the Ramsey County Law Library and the Ramsey County Bar Association.  The featured speaker was Mark Osler, whose presentation was titled Reconsidering Criminal Justice After the Death of George FloydProfessor Mark Osler is a former federal prosecutor and reform advocate who teaches at the University of St. Thomas.  He was joined by Erikka Ryan, Director of Diversity, Equity, and Inclusion at the Minnesota State Bar Association, who facilitated the discussion after Professor’s Osler’s presentation. 

In his presentation, Professor Osler described the continuum of changes regarding how the judicial system acted in response to deaths caused by police officers in Minneapolis and St. Paul.  In 2015, Jamar Clark was shot by two police officers, and the Hennepin County Attorney declined to prosecute them, believing that there was not enough evidence to convict.  Contrast that to last month, when a jury convicted Derek Chauvin of second-degree murder in the death of George Floyd. 

Professor Osler also pointed out a bold change in the Chauvin trial that had not happened in the past:  the entire trial, from picking the jury, the witness testimony, and finally the reading of the verdict was televised so that everyone could see the process.  The transparency of the proceedings allowed the community to believe that the process and verdict ended in a fair result.  

And so, even as we have evolved as a community, so must we examine and amend the laws that govern us so that the rule of law can be implemented and applied fairly.  The Conviction Review Unit Advisory Board, the investigation of the Minneapolis Police Department by the Department of Justice, and the various bills going through the state and federal legislatures – these are just some of the steps we are taking to evaluate our laws and make plans to move forward and effect change.  We share the responsibility to see that the law is created, implemented, and respected so that all Americans are treated with fairness and dignity under the rule of law.

 

More Libraries for National Library Week

To end National Library Week 2021 with a bang, we thought we’d tell our readers about CALCO, the Capitol Area Library Consortium.  Member libraries of CALCO represent a variety of state agencies, as well as entities of the judicial and legislative branches of Minnesota government.  CALCO was formed in 1973 to encourage cooperation among the government libraries.  Today, there are fourteen full members and four associate member libraries.  Associate members are libraries or affiliated groups that share the same interests as CALCO, but do not meet the membership criteria. The Ramsey County Law Library is an associate member of CALCO.

All CALCO libraries have experienced staff to help its patrons find information.  Other benefits of the CALCO Libraries:

  • Provide access to unique services and government materials that are not available elsewhere. 
  • Have material available in print, but also in microforms, electronic, and other formats.  For example, the Minnesota State Services for the Blind Library has audio and braille resources available to Minnesota residents.  In addition, the libraries include publications on diverse topics including the arts, business and economics, environment and natural resources, health, history, law and legislation, public policy, and transportation.
  • Provide access to their unique collections to the public.  The general public can find these unique materials through the online catalog or by contacting the library.  (Note that hour and access might be limited due to COVID-19.  Please contact each library directly for access.)

The pandemic has forced many of these libraries to adapt to providing services remotely, as many of the librarians were forced to work from home (and many still do.)  Dan Gausman from the State Services for the Blind Library observed, “Our service model has always been by phone and by mail.  Given that our offices are closed to the public during the pandemic there has been no drop-in, drop-off, or pick-up service.”   

The CALCO Librarians meet regularly to keep each other apprised of the issues within their respective libraries.  These regular meetings have been especially helpful in the last year, as Dan Gausman commented, “I also appreciate that our member libraries can offer support to each other during these difficult times.”

To see a full list of CALCO member libraries visit CALCO’s website at https://mn.gov/library/index.html.

Be kind to your librarian, and have a wonderful National Library Week!

 

Happy National Library Week 2021!

To celebrate National Library Week, we would like to tell you a little bit about a local library.  Not ours – I’m sure you know quite a bit about the services we offer.  The library you should know about is the George Latimer Central Library, located just one block west of the courthouse.

The George Latimer Central Library (“Library”) is the main branch of the St. Paul Public Library system.  It has over 350,000 books and other materials.  The Library was established in 1882 with a collection of over 8000 books.  In 1900, the library moved to a space on 7th Street, but community initiative and an unfortunate fire in 1915 spurred on construction for a new library. 

The building’s architect was Electus Litchfield, a prominent New York architect who is also known for designing the Masonic Temple in Brooklyn and Bellevue Hospital in New York.  The cost for building the new library, including the research library named after notable railroad baron and philanthropist James J. Hill, cost $1.5 million dollars.  The building was completed in 1917 and has been there, across the street from Rice Park, ever since.

In 2014, the library was renamed the George Latimer Central Library, honoring a former mayor of St. Paul.  Mr. Latimer was born in Schenectady, New York and was a graduate of Columbia Law School.  He came to St. Paul in 1963 and practiced law until 1976 when he was elected mayor.  Mr. Latimer served as mayor from 1976-1990, and later served on the Library Board of Trustees from 1998-2012, and as chair from 2008-2012.  In May 2014, St. Paul Mayor Chris Coleman announced the renaming of the library, which was received with much enthusiasm.  As Kit Hadley, the former Director of the St. Paul Public Library said,

We are honored to have Mayor Latimer’s name placed on Central Library.  All of Saint Paul has benefitted from his tireless work, from education to affordable housing to helping those in need. There is no more fitting name for this library given Mayor Latimer’s work with the Friends of the Saint Paul Public Library and the fact that libraries are active centers for community engagement.

Happy National Library Week everyone! 

 

What to Know about the Derek Chauvin Trial

Gavel

This informational post contains links to resources relating to the Derek Chauvin Trial.

Links to all the Court documents relating to the Derek Chauvin trial.  This page will link to trial information for the other defendants (see section for related cases). 

Links to a live feed of the trial can be found on Court TV, as well as on various news pages, such as MSBNC, CBS Minnesota, YouTube, and many other sites.

The City of Minneapolis has a page that lists street closures, trial updates, and a link to report suspicious activity. 

Links to the statutes for the charges:

Link to Court’s profile of the judge for this case, Judge Peter A. Cahill.

Brief description of the judge, defendants, and attorneys involved with the case, article from Minnesota Public Radio.

The Court created a Media Guidance document that provides information for working reporters and court personnel to address and/or resolve logistical questions regarding media coverage of the trial.

You can find updates about other cases occurring in Hennepin County during the trial. 

During the trial, the Hennepin County Law Library will continue to provide reference services to patrons by phone (612-348-2903) and email (law.library@hennepin.us).  You are also welcome to visit, call, or email, the Ramsey County Law Library for help.

 

To acknowledge Women’s History Month, the law library wishes to note two significant achievements in Minnesota court history. The first was in 1991 when Minnesota was the first state in the nation to have a majority of women on its state supreme court.  The second achievement is happening now in 2021, when the state’s five appellate and executive courts now have women holding top positions.

In 1991, Governor Rudy Perpich appointed Sandra Gardebring to the Minnesota Supreme Court.  She joined three women on the court:  Justice Rosalie E. Wahl; Justice M. Jeanne Coyne; and Justice Esther M. Tomljanovich (see above photo).  With a seven-member court, the four women comprised a majority. While this majority wasn’t maintained continuously over the intervening years, the current Minnesota Supreme Court also has a majority of women:  Chief Justice Lorie Gildea; Justice Margaret H. Chutich; Justice Natalie Hudson; and Justice Anne K. McKeig (see photo below).

Minnesota State Supreme Court Chief Justice Lorie Gildea was recently joined by Judge Wendy S. Tien in a chief judge role.  Chief Judge Tien leads the Minnesota Tax Court, effective March 17. However, other chief judges have been selected over the years to lead various courts.  Now the state’s five appellate and executive courts are all led by women. They include:  Court of Appeals Chief Judge Susan Segal; Minnesota Office of Administrative Hearings Chief Judge Jenny Starr; and Minnesota Worker’s Compensation Court of Appeals Chief Judge Patricia Milun.

 

Dr. William D. Green
Professor of History, Augsburg College

As Black History Month comes to an end, it is the high honor of the Ramsey County Law Library to recognize Dr. William D. Green for his scholarly research and captivating publications about Minnesota African American history.  The winner of two Hognander Awards, Dr. Green has published many works that describe nineteenth and early twentieth century events and individuals that highlight Minnesota’s African American heritage.  The two books that received the Hognander award are The Children of Lincoln: White Paternalism and the Limits of Black Opportunity in Minnesota 1860-1876and Degrees of Freedom: The Origins of Civil Rights in Minnesota, 1865-1912. The esteemed Hognander award is given biennially as part of the Minnesota Book Awards.  The award is supported by the Hognander Family Foundation, and it recognizes and celebrates the most outstanding scholarly work about Minnesota history published in the previous two years.

Dr. Green also showcases his scholarly endeavors through his fascinating, live storytelling. The law library collaborated with the Ramsey County Bar Association in October 2020 to present Dr. Green’s program about Nellie Francis, featuring his remarkable story of an African American suffragette. The October virtual program was attended by hundreds of attorneys. Dr. Green not only drew from his expansive research about Ms. Francis, but he also provided an enthralling tale through his palpable regard for Ms. Francis and her accomplished life.  Nellie Francis: Fighting for Racial Justice and Women’s Equality in Minnesota was published in January 2021.

In addition to Dr. Green’s books listed above, the law library also has A Peculiar Imbalance: The Rise and Fall of Racial Equality in Early Minnesota available for loan.  However, his research, scholarship, and published work goes far beyond the titles mentioned here.  For Minnesotans and readers around the U.S., Dr. Green’s contributions to African American history and research are a gift for all.

 

The biography of an extraordinary woman

Nellie Francis

Regular readers of our blog will remember the announcement last fall regarding a CLE about Nellie Francis, a local civil rights activist who was instrumental in passing an anti-lynching law in Minnesota and who also worked to bring the right to vote to women.  We are happy to report that the biography of Nellie Francis, written by Dr. William D. Green, Professor of History at Augsburg University, has been published and is available at the Ramsey County Law Library.  This extensively researched book chronicles Nellie’s story, telling us about her family, her friends, her activism, and historical context of the events in her life that influenced her. 

Of particular interest is the information written about her family.  Her grandmother, Nellie Allen Seay, for whom she was named, was a strong influence in her life – so much so that after her husband died of yellow fever, she moved back to Tennessee to live with her.  Dr. Green also detailed information about other family members that were influential in her life, such as her mother, sister, and of course, her husband Billy Francis.  Billy, like Nellie, was heavily involved with the local community, and was friends with Fredrick McGhee, a prominent St. Paul attorney.  Billy eventually took over McGhee’s law practice when McGhee died in 1912.

In addition to telling Nellie’s story through the lives of her family, Dr. Green also writes about the people in her community.  Nellie was a member of many organizations, such as the Everywoman Suffrage Club, the Red Cross Suffrage Group, the Booklover’s Club and Social and Literacy Society of Pilgrim Church, and the National Association of Colored Women’s Clubs, to name a few.  But Professor Green also tells the reader about other prominent people she worked with in these groups.   Not only did Nellie meet and work with both Booker T. Washington and W.E.B. DuBois, she met several U.S. presidents, including President Taft and President Harding.  But she also worked with other women, like Clara Ueland and Mary Church Terrell, on civil rights issues and the women’s suffrage movement.

Nellie’s story is also told in the context of major events in Minnesota, the most infamous being the lynching of three Black men in Duluth in 1920.  The next year, she helped to enact the state’s anti-lynching legislation, which was passed on April 20, 1921.  This well-researched book also describes the start of the restrictive covenants that were cropping up in Minneapolis and St. Paul and how it impacted Nellie and her husband when they tried to buy a house in a White neighborhood.  (Neighbors offered them a thousand dollars to not move in.  They did anyway.)  

To learn about a remarkable woman and learn more about Minnesota history, as well as the history of important African Americans in Minnesota, please do read this new book, Nellie Francis:  Fighting for racial justice and women’s equality in Minnesota by Dr. William D. Green.  This book is available at the Ramsey County Law Library.