Unequal Justice When it Matters

Jed S. Rakoff's article in the latest issue of The New York Review, "Justice Deferred Is Justice Denied," a review of Brandon L. Garrett's Too Big to Jail: How Prosecutors Compromise with Corporations, provides a valuable critique of the concept of "deferred prosecution." However, given Rakoff's experience as a judge, I am not sure what to make of his comments when comparing deferred prosecution with a decision to take a case to a jury trial. The fact is that, when a large corporation is involved, whether the case is brought against the corporation itself or individual employees at just about any level in the organization chart, the corporation will have access to a far more generous supply of litigation expertise than either the government or individual(s) filing the case. The idea that the courtroom provides even a remote approximation to a level playing field is dangerously idealistic. The result is that those who are disadvantaged, financially or physically, by negligence or malice from a large corporation, will be even more disadvantaged in any attempt to seek justice and any contingent compensation for those damaged, let alone punishment for the guilty. Until we recognize that our justice system is as broken as all the other elements of our current governmental structure, we shall be at the mercy of those who appreciate just how much power their wealth entails.