From Preet: Judge Jed Rakoff

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Preet Bharara’s new podcast, “Stay Tuned with Preet” on CAFE, is now live. Listen here on Apple Podcasts.

Part of growing as a person is being open to new ideas. It’s something that is often lacking in our national discourse – the ability to talk to other people, to receive new information, and to change our opinions as a result. But that’s exactly what happened to Judge Jed Rakoff, a Senior United States District Judge of the U.S. District Court for the Southern District of New York.

When he first arrived on the bench, Judge Rakoff was a proponent of the death penalty for a very personal reason: his brother had been murdered in cold blood. It’s a very human reaction – when people are victims of a crime, or when they have loved ones who are victims of a crime, they want some measure of what he calls “cosmic justice.” They want to feel like the universe is somehow evening out their pain, and making things right.

“It was an instinctive human emotion,” Judge Rakoff said. “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.”

Two things changed his mind. First, the Innocence Project demonstrated that there were a large number of instances of people being convicted for serious crimes that they had not actually committed.

“I had been under the illusion that mistakes like that were very, very, very rare,” Judge Rakoff said. “And I don’t think that is the truth. I think the evidence now is that there are more wrongful convictions than we ever imagined.”

The second thing that changed his mind was a case called Hererra v. Collins, in which Sandra Day O’Connor – then an associate justice of the U.S. Supreme Court – found that it was a violation of due process to prevent an innocent person from asserting meaningful proof of his or her innocence, no matter how long it had been since their conviction. Judge Rakoff decided that meant the person had to be left alive in order to be able to assert his or her innocence – and it was on the strength of that opinion that he decided that the death penalty itself was unconstitutional. While his decision was overturned, he continues to believe that he made the right call, capping a remarkable shift for a judge who once believed that the death penalty was not only constitutional, but also a necessary and positive piece of U.S. law.

“There are particular areas where judges are looked to as the protectors,” Judge Rakoff said. “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.”

For the full episode, take a listen here. Subscribe to the podcast. And stay tuned for more.

Preet Bharara’s new podcast, “Stay Tuned with Preet” on CAFE, is now live. Listen here on Apple Podcasts.