Punishment Without Trial

[music]

0:00:07.8 Trevor Burrus: Welcome to Free Thoughts. I’m Trevor Burrus.

0:00:10.1 Aaron Powell: And I’m Aaron Powell.

0:00:12.1 Trevor Burrus: Joining us today is Carissa Byrne Hessick, the Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr. Distinguished Professor of Law at UNC Chapel Hill Law School. Her new book is Punishment Without Trial: Why plea bargaining is a bad deal. Welcome to Free Thoughts, Carissa.

0:00:25.9 Carissa Hessick: Thanks so much for having me.

0:00:28.3 Trevor Burrus: So we’ve recently had some pretty high-​profile trials in the last few months. Carl Rittenhouse, Elizabeth Holmes, the Theranos founder. So it seems like the jury trial as the centerpiece of the American criminal justice system is doing pretty well right now. I mean, we had… Back in the day, we had OJ, and we’ve had a lot of high-​profile trials. So is it not the case that the jury trial is doing very well?

0:00:53.5 Carissa Hessick: Yeah, no, no, it’s definitely… It’s not the case, right? If you watch just the news, you’d think that most cases go to trial, but that’s really not what happens, it’s the opposite in fact. 97, maybe even 98% of the convictions in the United States every year are the result of people pleading guilty, usually with the plea bargain, rather than having a trial before a jury of their peers. Even though it doesn’t seem that way when we turn on the news, that’s what the numbers tell us.

0:01:29.2 Aaron Powell: But this seems… The people who are charged with a crime typically know if they did it, right? And so if they are presented with the opportunity of, I’m gonna go to trial and they’re gonna muster all the evidence that is against me, and I know I did it, so the evidence is probably gonna come out against me, so I might as well take this plea which is going to give me potentially less time in prison that I could have otherwise, or at least get this whole process over with. What’s wrong with that?

0:02:00.5 Carissa Hessick: Yeah. Okay. So I think that there are two things wrong with it. First, I wanna push back on the premise that most people who are pleading guilty know that they’re guilty. For one thing, maybe they’re guilty of something, but they’re not guilty of what they get charged with. Or maybe it’s actually not clear whether they’re guilty or not. I think it’s easy to forget how many crimes are written with, what I call, sort of qualitative language, where juries have to make decisions about whether something was reasonable or unreasonable. The defendant doesn’t know, the defendant probably thought whatever he or she did was perfectly reasonable, that’s why they did it. Or in white-​collar cases where there are questions about whether something qualifies as corrupt or whether somebody was defrauded, all of those sorts of questions, there’s not sort of a clear-​cut answer whether the defendant did something or didn’t do something as a legal matter, and we need the jury to make those sorts of decisions, and that gets cut out of the system. So that’s one thing. But that’s totally fair. Let’s talk about the cases, and there are probably a lot of cases, where the defendant did something, stole something, right, shop-​lifted, and the defendant knows that that’s what the defendant did, and they’re being told that they should plea guilty, and if they don’t plead guilty they’ll go to jail for a lot longer.

0:03:13.5 Carissa Hessick: I think the answer to that is… It’s that last piece of it, right? Plead guilty or else we will send you to jail for a lot longer. That’s really problematic, because what we’re saying there is, if you insist on your right to a jury trial… Which is… I wanna be clear, it’s literally a constitutional right guaranteed to you. It’s not like we were like, “Oh, I have a right to do this,” and you just mean like I should be able to. Here it’s literally written in the Constitution twice that you have a right to a jury trial. We’re telling people that we will punish them for that, whether that’s giving them a longer fine or more time in jail, or years sometimes even in prison, and that’s just… We’re not supposed to do that. That’s the opposite of what a constitutional right is supposed to be.

0:04:02.2 Trevor Burrus: Are we putting too much trust in juries? Aaron, actually, did go to law school, but it’s not really a lawyer, but when he was in… Was it after your 2L year?

0:04:13.4 Aaron Powell: No, it was my 1L year.

0:04:15.6 Trevor Burrus: He was on a jury…

0:04:19.4 Aaron Powell: It was a call for jury duty.

0:04:19.5 Trevor Burrus: Yeah, of a murder trial.

0:04:19.6 Aaron Powell: It was an eye-​opening experience.

0:04:21.6 Trevor Burrus: So yeah, Aaron, maybe you’d better… So juries seem a kind of crazy, and a joke…

0:04:25.6 Aaron Powell: Yeah, I’ll just… My experience was, it was a double homicide at a party, a Halloween party, and people had brought guns and shooting happened. And in the jury, I was made foreman because I was the only person with law training, although I don’t know how much a 1L counts as law training. And when I called the vote, one of the people said… Voted guilty, and I asked why, and the response was, “He… “, because there were two defendants but one of them had skipped to Mexico and the cops couldn’t find him. “He is guilty because good people don’t bring a gun to a party.” And that kind of attitude made me just wonder about how much… You get all the instructions from the judge about, this is what you’re looking for, this is what matters. The prosecutors and the defense attorneys have told you what to look for. But then when people are actually there, it’s just like, “This is a bad person, I wanna put them away.”

0:05:33.4 Carissa Hessick: Yeah, yeah. So first of all, that’s depressing. Thank you for depressing me so terribly like that. I guess my question to you is, do you think that that’s limited to juries? Do you think… ‘Cause I think that that’s probably what happens with police officers and prosecutors and, to some extent, judges. And in fact, some of the stories that I talk about in the book are those actors saying that that’s what they do, right? Maybe we got them for this one, right? Maybe I can’t prove it here, but I can have them sit in pre-​trial detention until the last possible minute, and then it’ll have to be like, oh… So I agree with you what happened with that jury is terrible, but what plea bargaining does is it takes the power away from the jury, it takes it away from those of us who aren’t part of the government, and gives it to the people in government whose job it is to put people in jail, and then tells them, “What about this person, do you wanna put this person in jail, what about this person, do you wanna put them in jail?” And at least when we sit on juries, first of all, there are multiple of us, right?

0:06:47.3 Carissa Hessick: So that’s terrible that that juror thought that, but hopefully the other 11 people on the jury were taking their duty more seriously, or…

0:06:55.9 Aaron Powell: Yes, it was the other 11 voted not guilty.

0:06:58.1 Carissa Hessick: Oh, well, then the system worked, right? [chuckle] The system worked. So there’s that. But on top of that, I think that, for when we sit on juries, and I should add, I’ve never made it on a jury. I always… Even if I get into the room, I get struck…

0:07:16.6 Aaron Powell: That was…

0:07:17.4 Trevor Burrus: Yeah, I’m not holding my breath for that one. Law professors who specialise in jury trials? I’m not holding my breath.

0:07:25.6 Aaron Powell: I did not expect to make it on, and when it got around to questioning me during voir dire, the… I think it was the prosecutors, the only question they asked me was, “Will your year of legal training interfere with your ability to reasonably judge the evidence in front of you?” And I replied, “I hope not.” And they kept me on.

0:07:41.8 Carissa Hessick: [chuckle] That’s fantastic. I will say, one of my big… I say this now to all of my students when I teach criminal law, is that I have these themes that I had in criminal law, and one of them is if you have a law and it says, if one of the elements is whether something was reasonable or not reasonable, they’re asking the jury to use their personal judgment. And part way through first year criminal law, one of my students got called for jury duty and she got seated on a jury. And it was a disorderly conduct and assaulting a police officer case, ’cause some dude cursed at an off-​duty cop at a public pool. And they wouldn’t drop the assaulting the police officer charge, so that’s why the guy went to trial, because he’s like… It’s like unreasonably loud and profane language, and he screamed the F word at the cop. But, you know, I think a lot of people would say is, unreasonably loud and profane, and my student said to the other jurors, “We’re supposed to use our judgment about if this is the sort of thing that someone should get punished for.” And one of the other jurors was like, “That can’t be right.” And she’s like, “Well, that’s what my law professor told me, but we can send a note to the judge.”

0:08:44.6 Carissa Hessick: And the other juror was like, “No, no, that’s fine.” It’s a public pool, you can totally scream the F word. And the guy got acquitted. So I think that’s… In some ways, I think that’s kind of what I care about, is that, if we’re gonna have important decisions being made, are jurors gonna get it wrong? They’re definitely gonna get wrong. I’d be shocked if they didn’t get it wrong. Are some of them going to be biased and lazy? Like, yeah, probably a decent chunk of them are gonna be biased and lazy. And even if more of them are biased and lazy than the people who work within the criminal justice system, ours is still a democracy, and I think we are just sort of… The balance that we struck was to make bad decisions at least some of the time, but to have those decisions being made with a certain amount of democratic legitimacy. And that’s actually something that I thought was interesting when I was writing the book and looking into the history of plea bargaining, is how important the people who wrote the Constitution and the people in the early years of the country thought the jury was to American democracy.

0:09:48.8 Carissa Hessick: So there are some things I quote in the book from John Adams, from Thomas Jefferson, talking about how if they had to pick democratic input at the level of figuring out who was going to write the laws, and democratic input in terms of who should have to go to jail, they thought the latter was more important than the former. So I do think that those people obviously got some things wrong. Slavery, for example. [chuckle] But I do think that we have to have a pretty good reason to second-​guess the decisions that they came to, and… I’ll put it this way. In the past few decades, when we’ve decided instead of having juries be the dominant way of resolving criminal cases, I don’t think things have gotten better. And I think that they’ve… I’m pretty convinced that they’ve gotten worse.

0:10:39.4 Aaron Powell: So let me ask you about that then. How did we get to a situation where the vast majority of criminal convictions come prior to any trial taking place?

0:10:51.0 Carissa Hessick: Yeah. So this is actually a hard question, and I think there’s sort of multiple answers and different things happened at different times. So, first of all, we know that there was at least a little bit of plea bargaining early in the country; there’s a book on this by George Fletcher, he finds some cases in Massachusetts where some guy’s plea bargaining all the illegal liquor distribution cases. But it didn’t happen that often, and when it did happen there was usually a big outcry when people found out about it. By the way, not because they thought that it gave prosecutors too much power, but because they thought it was corrupt. They thought it was corrupt for government officials to say, “Look, you’re supposed to get X punishment, but we’ll discount that punishment if you decide not to go to trial.” They’re like, “Why is the defendant getting let off? That’s inappropriate. We’ve decided that this is the right punishment, that’s what should happen.” So when plea bargaining would happen early on, and folks found out about it, there’d be a public outcry. Appellate courts would reverse and say it wasn’t allowed and it wasn’t permitted, they’d refuse to enforce plea bargains. And I think we only really figured out that it was widespread when in the 1920s and the 1930s there was this big movement to figure out what was happening in urban courts and the criminal justice system.

0:12:12.3 Carissa Hessick: So all these states undertook these studies of their criminal justice systems and they discovered plea bargaining. And I think… And again, when they discovered it and they found out that it was widespread, there was huge pushback, there was a push to actually impeach a bunch of judges in Chicago that were allowing plea bargaining to happen. It was considered terrible, again from the sort of corruption, “people are getting off too easy” piece of it. But it was kind of difficult to tamp down on it, it was happening everywhere. And then I think when it came to light, it came to light as well when people like…

0:12:55.9 Carissa Hessick: When people sort of in the ’20s and around the turn of the 20th century had started to worry about whether jurors were really that good at their jobs, they were worried that they weren’t very good at deciding complex civil cases, they thought they were acquitting in cases where they thought some people were guilty. So I think that there started to be this sort of disillusionment with the jury system that stopped the legal elite, I guess you could call them, from tamping down too much on plea bargaining when it was widespread. And then once the secret got out, there’s a sociologist who sort of talks about plea bargaining almost being contagious; once people realised they could plea bargain, I mean for the people in the system, including defendants, it seems like a really good idea, so it’s like a good idea spreading. It’s like Henry Ford with the assembly line.

0:13:46.5 Carissa Hessick: Once you see like, “Oh, well, things work better that way,” then everybody starts doing it. And then once everybody starts doing it, then it turns into an argument about efficiency, and it’s certainly more efficient. And then finally, and this is the last piece of it I think sort of, in the ’70s, we got so only like 10% of cases were going to trial, and now we’re down to very, very few. And I have to say, I think that at this point it’s almost a cultural issue. Everybody expects things to plea bargain, and frankly, we all conform to social expectations more often than we don’t. I don’t know, I have this fight with my kids all the time, they’re always saying, “Why do I have to do this?” And I finally broke down and I told them, for most things it’s like it’s social convention. My kid’s like, “Why do I have to wear pants outside?” And I’m like, “Social convention.” Like it’s hot, it’s… Not right now, but it’s hot in North Carolina, you’re right, pants… I understand why they don’t make sense to you, but social convention, you have to wear pants.

0:14:40.1 Carissa Hessick: So I think the social convention right now is plea bargaining. That’s the assumption that everyone goes into the system with, and I think it warps the whole system. It allows us to think, “Well, if you’ve been arrested and you’re facing these charges, we’re gonna treat your pre-​trial incarceration as though it’s just the beginning of your sentence,” and the entering of the guilty plea is just the formality. And I think that’s almost where we are. The criminal justice processes are just a formality, rather than seen as the way that we figure out what the truth is.

0:15:15.1 Aaron Powell: When you say social convention though, I guess what circle are you drawing around social? Do you mean like within the prosecutorial and defense attorney communities, or… ‘Cause I’m thinking, at the broader cultural level we don’t… The TV shows we watch, there are lots of legal TV shows, but they don’t… Law and Order is 50% about jury trials, it doesn’t tend to end with plea bargaining. It does seem like in that kind of popular conception of how the criminal justice system works, you get arrested and then you go to trial.

0:15:50.0 Carissa Hessick: No, you make an excellent point, Aaron. When I say a social convention, I mean it’s the convention within the courts. That’s what defense attorneys expect, that’s what prosecutors expect, that’s what judges expect, that’s what police officers expect too, and I think there’s an argument to be made that that probably affects how they police, because everything is gonna be dealt with through a guilty plea. But you’re right, I don’t think the American public knows that. The American public knows that guilty pleas are a thing, they know that plea bargaining can happen, but… I mean, I’m the only lawyer that my family knows, my nuclear family. I guess I’m married to a lawyer, so they know two of us, but I say things to them like, I wrote this book about plea bargaining, 97-98% of convictions come from guilty pleas. They’re like, “No, that can’t be true, I just saw the Kyle Rittenhouse trial.” And I’m like, “Yeah, yeah, that was unusual.” “Well, are you sure Steve Bannon went to trial too.” And I’m like, “Yeah, but then he pleaded guilty for the second case.” I’m like, you know… These high-​profile cases that get this attention, they confuse people. They can think of trials happening, so there’s no reason for them to think… There’s no reason for them to know this and they don’t know it. And in fact, I think that they are shocked when they find out how prevalent plea bargaining is, and the conditions under which it’s connected.

0:17:06.0 Carissa Hessick: Frankly, I talk to my friends who are civil litigators and they’re shocked too. They can’t believe that criminal defendants aren’t entitled to discovery. Right? Or that everybody is like, “Yeah, if you file a suppression motion, then your good plea deal is gonna go away and they’re gonna give you a worse… ” They’re just… They’re absolutely astounded by that.

0:17:28.0 Trevor Burrus: Let’s get into a little bit of those logistics. I’ve never really practiced law. I write amicus briefs for the Supreme Court, so I’ve never actually been in the situation where your client is faced with this choice and all the pressures that are put on those clients, and you talk about them in your book. From financial pressures to pre-​trial detention and all this stuff. But the thing that really astounds me, and as you said, you bring this up in the book, if you do civil litigations you have more rights than you do against the state; to figure out what evidence that people have against you, for example. But then the other side of this is just how coercive it actually is. It’s something that has struck me, where if they’re saying, “You want 20 years in prison or do you want two years in prison, or maybe even fewer than two years in prison.”

0:18:20.6 Trevor Burrus: I think most people, if you ask them, Would you rather be flogged 200 times or spend 20 years in prison, they would probably choose the flogging. And of course, if you flogged someone to get them to plead guilty, that would be obviously unconstitutional. So at this level of coercion, has the Supreme Court weighed in on what level of coercion is allowed, ’cause it seems like it’s extremely high at this point?

0:18:47.3 Carissa Hessick: So the Supreme Court has said, even if the person pleads guilty in order to avoid the death penalty, the guilty plea is still voluntary. The Supreme Court…

0:19:02.5 Trevor Burrus: It would be a crime if I went to someone and I said, “Give me your wallet or I will kill you.” That would be a crime. Right? So…

0:19:09.3 Carissa Hessick: Yeah, we would never say… No, exactly, right, and you can… Right. And if you were charged with theft for saying to me, “Give me your wallet or I will punch you in the face,” and I handed you my wallet, you would never be able to say, “I didn’t take the wallet by force, she gave it to me.” People would be like, “Yeah, that’s BS.” Right?

0:19:29.0 Carissa Hessick: And the Supreme Court, frankly, their cases in this area are a deep disappointment, and I’m not one of these people who’s like, “Oh, the Supreme Court, it’s nothing but politics.” Blah, blah, blah, blah. I don’t feel that way. I think the Justices often, are doing the best that they can, they take their jobs very seriously, their decisions can be explained through their methodologies and those sorts of things. But in this area, you read these cases and it’s just appalling. They come right out and say that they don’t apply their ordinary rules about the government being able to punish you for the exercise of your rights, because if they were to apply that rule, then they would have to say that plea bargaining itself is unconstitutional, they say that. I’m paraphrasing them, but that’s the analysis that they give. So it’s basically like, if we can’t apply ordinary constitutional law here, otherwise we would have to say we can’t allow this. And I’m like, yeah, exactly, that’s my point. And the person who wrote the first opinion saying that plea bargaining is constitutional was Chief Justice Warren Burger. And soon after he wrote that opinion, he gave a speech, I think it was to the ABA. And he was very blunt.

0:20:49.7 Carissa Hessick: He was like, “We have plea bargaining, we need plea bargaining, we need to encourage plea bargaining because the courts don’t have the resources to try all of these cases.” There’s no sort of sugar-​coating why the Supreme Court did this, they didn’t think that the courts could handle the volume of cases. And so their way of dealing with that was to say, they’re not going to apply the Constitution.

0:21:18.8 Trevor Burrus: The interesting thing too, is that you can allow plea bargaining, and I know that you probably know some countries do this, I think the Netherlands is one. But you could still allow plea bargaining, but you could limit the ratio of the offered plead to the possible trial penalty. So you wouldn’t know. If you’re addressing Chief Justice Burger’s concern to say, “Okay, look, maybe plea bargaining is fine, but you can’t have a ratio of 10 times, do you want two years or 20 years in prison?” ’cause then you’re getting into some level of due process concerns.

0:21:48.4 Carissa Hessick: Yeah, that’s an interesting argument, Trevor, and it’s true. And some people have said that. And I guess I’d say this, I think in some ways, this is the paradox of plea bargaining, is that the more attractive the plea deal is to the defendant, the more pressure it is on the defendant to take it. But the less attractive it is, then the less they get in return for waiving their Constitutional rights. So it’s hard to figure out how to solve that problem. Do we wanna remove the pressure from defendants to plead guilty, or do we want them to actually get something good in return for having to give up their right to a jury trial? I don’t know how to resolve that. When I was doing interviews for the book and I would talk to defense attorneys, and it’s funny, I get it, they’re in court day after day sort of slogging it out on these cases. And they would say, “You academics, you always wanna say things like abolish plea bargaining.” They’re like, “Don’t you understand? That’s one of the only tools that I have to help my clients. If I can convince the prosecutor that this is a guy with a substance abuse problem, and if we could just get him into the right kind of treatment, we could really turn his life around. That’s the way I can get him out of a 32-​month sentence in terrible prison conditions that will do absolutely nothing for him as he continues to get his drugs inside prison and comes back out with fewer skills and fewer abilities to sort of support himself.”

0:23:19.9 Carissa Hessick: So their view of plea bargaining is this various… It’s a sort of love-​hate relationship. They’re not dumb, they can see what plea bargaining has done to the system, and yet they have an ethical obligation to each of their individual clients. And so from their perspective, putting limits on what a prosecutor could give you in plea bargaining would be a disaster.

0:23:46.0 Aaron Powell: This does seem to speak to a kind of cramped perspective that tends to come from people who are stuck within a given institution, and so think of everything within the context of that institution. Because if you told me, we set up this system of jury trials, the idea is that you get judged by a group of your peers. But now, we have so many people that we’re trying to prosecute, we’re trying to put behind bars that we simply can’t keep up with the system. My first thought would be, is this because people are wildly more violent and crime-​prone than they used to be. And so the number of crimes per 1000 people has sky-​rocketed, but the evidence doesn’t appear to support that people are as prone to criminality as they seem to have always been, if not, potentially less so than they used to be. And so it seems like from the outsider perspective, the direction would be well, maybe what’s going on there is you guys are trying to prosecute too many people, or you have too many things. Because presumably, if it’s a population issue, your resources have scaled with the population because they’re paid for with tax dollars and each due person is a new taxpayer. And so that shouldn’t be the issue, so the issue is just maybe you’re prosecuting too many people, and if you can’t figure out how to give them all due process, then you should figure out how to try to prosecute fewer of them. But for people within the system…

0:25:16.0 Aaron Powell: And I think this is even… We all went to law school. You teach in a law school. Law school doesn’t seem to teach lawyers address that question of, are all these law… We learn to interpret laws, we learn to apply laws, we learn the history of that, but we don’t really question the fundamental like, “Should this be a law or not? Is this a legitimate use or not?” And so is it that we have this culture of prosecutors, judges, law enforcement people who are just like, “Well, the book said this, and my job is to do it.”

0:25:49.2 Carissa Hessick: Yeah. Look, this is a great question. I’ll say a few things. First of all, you’re right. I don’t think that we spend as much time on that in law school. Should this be illegal, takes a second chair to what does textualism tell us would be the outcome here. And one thing that I find concerning is whatever the merits of our modern approach of statutory interpretation, which makes a lot more sense and it’s a lot more predictable than it used to be, it also really cuts the judge out of the equation in terms of making considered judgments about whether something’s a good idea or not a good idea. We’ve told ourselves this story in recent decades, that judges are only supposed to interpret the law, that it’s inappropriate for them to make decisions about whether a statute is wise or not, that that encroaches on the legislative power. And I have a paper coming out in a couple of months, it’s a boring academic paper, which is not the sort of thing I would ever be asked to go on a podcast to talk about. [laughter] But there’s a really rich history in England and in the early America of judges just being like, “Yeah, no, we’re not gonna put someone in jail for that.”

0:27:07.7 Carissa Hessick: Yeah, I know you wrote the statute that way. No. No. They would just say no. And sometimes they dressed it up in ways that were sort of systematic and predictable in terms of the rule of lenity and the rule of strict construction or the rule against absurdity. Sometimes they said sort of that’s contrary to the common law, so that’s not how we’re gonna interpret it. But they were very sort of… They basically took a stance that judicial interpretation was partially about cutting back on the scope of criminal laws, and that was a role that the judiciary served for a while. And then I get it, there was all sorts of other stuff. When Congress was passing laws, and the courts kept saying, “No, you can’t do that,” and sort of public opinion turned against that. But we lost sort of a bulwark or a safety net there that kept a lot of things from being criminalised in the first place. But then look, it’s easy when we have conversations about crime in America to think about terrible violent crimes. But the truth is, most of the cases that come through the criminal justice system are not serious crimes. We’ve got probably a million felony cases a year, and 13 million misdemeanour cases.

0:28:35.7 Carissa Hessick: If we had to make decisions about how to use our resources, I bet most Americans would say we should focus on those serious crimes and maybe we should stop pursuing all of these less serious misdemeanour cases. But Americans are never asked to make those resource decisions. And because they’re not asked to do it, they do things like they call the police and they say, “We need you to crack down on these noise complaints,” or “There are people urinating on the corner, come and arrest them.” And so then law enforcement and other elected officials get the message that people really care about these quality of life crimes, which they do. I don’t want anybody urinating on my corner either.

0:29:19.3 Carissa Hessick: But if Americans were told that fewer than 50% of all burglaries get solved because police are busy chasing down quality of life crimes and throwing homeless people in jail or just going after stuff that’s annoying, that we don’t wanna have happen, I bet Americans would be like, “Yeah, burglary seemed a lot more serious and that’s probably where we should have law enforcement doing their work.” But that’s not what we asked them to do, and it’s not what we ask them to do in part because the criminal justice system has just decided they’re being asked to do too much, and so they’re gonna try to do it efficiently. And I think that that was a wrong turn. Either we should ask Americans to pay for this use of the criminal justice system, or we should ask them to come up with priorities or frankly even…

0:30:15.0 Carissa Hessick: And then I know you guys, you might not agree with me here, or think to ourselves, “Huh, if we have a problem like public urination on the corners, what are some other things that we could do besides putting people in jail for that?” Should we think about having publicly available restrooms like they do in a number of other western countries? Where it’s not just you have to go buy yourself a $4 coffee at a Starbucks to be able to use the restroom.

0:30:37.8 Trevor Burrus: It’s interesting if you are particularly cynical, and I am. [laughter] You read your book, or another book, which I recommend from which we had on past episode, Jason Berman. Chris Zuperdod’s book about criminal justice. You could be very cynical and apply Public Choice Theory and say, “This is just a bunch of self-​interested actors such as police unions, prison guard unions, elected judges, elected prosecutors who are trying to make advancements in their career, either financially or electorally, for example, on the backs of people that they’re throwing into cages.” And then America tends to forget about them. And of course, at the bottom of this is the American electorate, which seems to always vote for more criminal punishment and very rarely, although maybe a little bit in the last years, vote for less criminal punishment. And as you said, these quality of life crimes are a good example of that.

0:31:37.6 Trevor Burrus: And so it ends up being this sort of machine that convicts people, but it doesn’t actually convict them. It coerces them into pleading guilty to mini crimes that are arguably releasable from the libertarian standpoint, or hardly even crimes such as drug procession, and then brings money out of them in terms of fees. And so if you’re particularly cynical, you could say, “This is just a machine where every individual part has an incentive to put more people in prison and bring more money out of them, and stopping it seems quite daunting.”

0:32:10.4 Carissa Hessick: So yes, and I try not to think that way. But some days are harder than others. Though I’ll say, I think there are a few bright spots. So first of all, I think that although the American electorate is often willing to disappoint me personally, there are many occasions on which people get asked a stark question about criminal justice policy, and they give what I think are sensible answers. When I started teaching, I was teaching out in Phoenix at Arizona State. And soon before I got there, they’ve got a strong referendum system out there, and the voters were just like, “What are we spending so much money on prisons for?”

0:32:50.0 Carissa Hessick: And they just passed a law that forbade incarcerating people for initial drug crimes. They set up a system through a referendum that kept police and prosecutors from putting low-​level offenders with not particularly serious criminal histories who were guilty of drug crimes, not violent crimes, but drug crimes, stopping them from putting them in jail. They’re just like, “That’s not how we want you to spend the money.” And the voters put that limitation on the actors in their system, which is fascinating. And you can see stuff like that happens sometimes. There are a bunch of people who run for District Attorney now saying they’re gonna do things like not transfer kids to adult court, but to keep juveniles in the juvenile system. They’re gonna stop asking for bail all the time. So I think that some voters are listening and some voters really care, and I also think that there’s been… In the past couple of decades, maybe that’s a little bit too long. The past 10, 15 years, I think there’s been an increasing awareness on the political right about how out of control these things are, and whether it’s because you care about government spending or you care about liberty and freedom, or if it’s just because you don’t like to see institutions working badly.

0:34:11.5 Carissa Hessick: I think we’ve seen a number of folks, Right on Crime, the Heritage Foundation, Cato. I’m a big fan of Clark Neely. [laughter]

0:34:21.3 Trevor Burrus: We know, we are not right where… [laughter]

[overlapping conversation]

0:34:23.1 Carissa Hessick: Libertarian. We’ve seen the folks at the Coke foundation. We’ve seen a lot of people say this is a problem that we need to solve. So I think it’s possible, and I also think too… I think most of the people who are involved in the system, most of the people, whether they are defense attorneys or prosecutors, or police officers or judges, I don’t think they’re bad people. And I think that overall, if you had asked them why they’re doing what they’re doing, they’re doing it ’cause they’re trying to make the world a better place. I think part of it might be just trying to give them a tool kit of things that they could do, hopefully, out in the open. [chuckle] And do them in a way that’s designed to make the system better. And to try to correct some of the problems that we have right now. So I’ll give you an example. I talked to a public defender who pointed out when she’s in misdemeanour court, that the prosecutor sometimes… The supervisors would only allow the line prosecutors to give some pretty harsh deals. And there was a judge if somebody came through the court room who didn’t seem like they’d been through the system a lot, she would turn to the prosecutor and say, “Have you asked your prosecutor… ”

0:35:40.4 Carissa Hessick: I’m sorry, “Have you asked your supervisor whether he or she would be willing to accept?” And then would say something a lot less harsh. On the line, prosecutor would say, “I can get back to you this afternoon.” And guess what? The supervisor always said yes. Now, most judges will tell you that parties plea bargain and that’s up to them and it’s negotiation, and they know the facts of the case better than the judge does, and the judge shouldn’t be sticking his or her nose into it. I have questions about what they think the judicial branch is supposed to do in a criminal case, if they really think they’re not supposed to look at what happens in a plea bargain. But judges can say, “Why not try to resolve it this way instead?” Judges can say, “I’m not gonna sign off on this guilty plea if you are making this person waive their right to an appeal.”

0:36:26.3 Carissa Hessick: We’ve got Judge Sullivan in the DDC who’s telling DOJ, ’cause he’s mad at them that they have to turn over discovery and every single criminal case before he’ll enter a guilty plea, or even if it’s already been entered, that the defendant has to get discovery. Because he’s mad at DOJ and he’s been incredibly open that since the Ted Stevens case where there was a huge discovery of violation that he doesn’t trust them. And so he’s telling them, they have to hand all this stuff over. Even though the defendant’s not constitutionally entitled to it, Judge Sullivan can decide whether to accept guilty pleas or not, and he has the power, as does every judge in the system to say, these are the conditions under which I will accept guilty pleas.

0:37:04.9 Carissa Hessick: Prosecutors have the ability to say to defense attorneys, “This looks like a marginal case, let’s have a sit down and talk about what are the facts here? What’s the alternative?” I spoke with a prosecutor who’s out in rural Indiana, and he said he does that regularly. He doesn’t just make decisions based on the file. He pulls the attorney in and he says, “Lay this out for me. Tell me what you think what happened. Tell me what you think.” Now, I’d prefer if a judge and a jury were involved in that process, making the decision rather than just the prosecutor. But there are plenty of prosecutors who don’t even do that. So I think if we could normalise this sort of behaviour or better yet, say that this is literally what people are supposed to do in a system that’s built on plea bargaining, come up with a new sense of what due process could mean outside of a courtroom, then we could do a lot to correct the problems that we have now. But unfortunately, that’s not what we’ve done. We’ve done the opposite. We’ve said like, “Oh, this is a private negotiation, due process isn’t involved. As long as the defendant knows what he or she is giving up, then we’re fine.” And that’s no way to run a country.

0:38:21.9 Aaron Powell: We’ve touched a bit on this, but I’m curious about the role of public defenders in this whole conversation, because I would imagine that the overwhelming majority of plea bargains are with defendants who have public defenders representing them, and on the one hand, a public defender is defending their client, that’s their job, and so they would likely prefer to keep this person… To get an innocent verdict or minimise the amount of jail time, and so you can imagine that public defenders would prefer that there are more jury trials or less coercive plea bargaining, but on the other hand… Trevor and I both have a good friend from law school who is a public defender in Denver, and it’s astonishing how just overwhelmed he is. His case load is almost unconscionable, and so it seems like there could also be a push in the other direction of plea bargaining is the only thing that enables me to do… To basically give any support of any kind to my clients, because at least then I can… I can offer them a negotiation, but I don’t have the time to do it, so in general, where do public defenders fall in this conversation for course of plea bargaining for reform, for trying to limit this, trying to have more jury trials and so on.

0:39:55.7 Carissa Hessick: Yeah, so look, so I have no doubt that there are some public defenders who are just looking for a paycheck, I didn’t happen to talk to any of those folks when I was writing this book, the folks that I talk to, they figuratively kill themselves for their clients, they work incredibly long hours, they’re not necessarily desperate to bring cases to trial because they know what the trial penalty will do to their clients, but they’re desperate to get the best outcomes that they can for their clients, and sometimes that’s a trial, more often it’s trying to convince the prosecutor to drop inappropriate charges or to dismiss a case all together. But you’re right, so many of them that I talk to are incredibly, incredibly overwhelmed, and because of that, when I wrote the book at the end in the sort of the solutions chapter, I’m sure there is something… I am sure there’s some technical non-​fiction word for that I’m supposed to use, but I think of it as the solutions chapter. I say basically, that there’s really not that much that public defenders can do ’cause they don’t have a lot of power, but since I wrote the book, I’ve actually come to think that I was wrong about that. For one thing, I spoke to some public defenders, some rural public defenders in Missouri, they had a new defender in there, and he was saying that he was just depressed, that they assumed everything was gonna plead, and so he just said, let’s…

0:41:15.9 Carissa Hessick: It’s a red pill moment, let’s assume every single case is gonna go to trial and work it up that way, and they thought that the cases were coming out differently because of that. They were not thinking to themselves, “Oh, maybe there’s a suppression issue here, I might mention it to the prosecutor,” they were instead working up the suppression motion and telling the prosecutor, “Here’s the suppression motion, I’m filing tomorrow.” And then it was up to the prosecutor to be like, “Holy crap, okay, I’m dismissing” or, “Well, if that’s what you’re gonna do, here’s the new offer.” So I think that that mindset change could work, but it doesn’t take care of the resource problem that you’ve identified and this one, I’m still thinking about it, and this might be a dumb idea, but I can’t help but think about my incredibly brief stint at a fancy New York law firm when I graduated from law school, and how the firm had this huge sort of “whoa” moment because it looked like one of our cases was gonna go to trial, ’cause that doesn’t happen very often in civil litigation, at least not the sort of civil litigation that’s handled by these firms that build our lawyers out at a lot of money and in fact, because of that there are some firms… I’m thinking of Bartlit Beck in Chicago that have grown up that they just…

0:42:34.8 Carissa Hessick: They specialise in trials because it’s so infrequent for these sort of fancy, well-​paid lawyers to have trial practice that those firms get hired by the fancy law firms to try the cases because the clients are nervous because there are so few trials happening. The disappearance of the trial isn’t just in the criminal system, it’s in the civil system too. Then I started thinking to myself, you know what, those same super fancy law firms think of all the pro bono appellate criminal work that they do. If there’s a criminal case before the US Supreme Court, the chances of that being handled by some fancy partner at a law firm is super high, and they do that before the courts of appeals too, because when their paying clients have these cases, they wanna be able to say, “Oh, partner Joe over here has seven circuits arguments and two Supreme Court arguments under his belt, so you can trust us with your case.” They could do that with criminal cases too. There are all of these big law firms who get… They want their associates to do pro bono work, one ’cause it makes them look good, but two, because they want them to get good experience, so I gotta wonder whether there might not be the ability to come up with some sort of clearing house or something like that, especially… Especially for the associates in the city to help out the defender offices that are not in cities, for the folks in…

0:44:11.0 Carissa Hessick: For the folks in Kansas City to be going out to the rural counties where they’ve got a defender’s office with four people and working for two months there or something like that. The experience that they would get would be tremendous, so it would be like a win for the firm, but it also just seems like it could really help with capacity in the system as well.

0:44:31.0 Trevor Burrus: That’s definitely one area where even my hardened libertarian heart would believe in spending a ton of more money on public defenders, ’cause that’s the state coming after you. So we could have better representation, that could be its own episode, how few resources so many public defenders have to call experts or anything like that, but it seems to me that getting people to spend money, is difficult enough, but really we should be looking at prosecutors and of course, John Pfaff, who’s been on the show a couple of times, he gets sited in the book, sites prosecutor behaviour is a major reason for the increase in incarceration, although the data is so bad that we never really know, but prosecutors just seem strange, and if you… Months ago, we had Mark Godsey on the show, who is a former prosecutor turned defense attorney, Innocence Project founder in Ohio, that their behaviour is just perplexing so often, and they can do things.

0:45:30.1 Trevor Burrus: One thing that has always struck me as strange is that they can offer people 10 fewer years in prison if they testify, but a defense attorney cannot do anything even remotely similar to induce testimony. You can give someone 10 years of their life back, but defense attorneys can’t even give them a dollar or you’d be disbarred and so prosecutors are doing all this stuff, they have so many levers they can pull, and they seem like they’re just single-​mindedly focused on conviction numbers, which is a problem from their ethical standards and just a huge part of what’s going on in that system.

0:46:03.3 Carissa Hessick: Yeah, so I feel deeply ambivalent about prosecutors. One of the things that I do at UNC in addition to just teaching my classes is I had something up called the prosecutors in politics project, because as you mentioned, the data in this area is just horrific. We have 2300… More than 2300 elected prosecutors in this country, we had to put together a database of who they were ’cause you couldn’t even figure that out, it changes from time to time. Texas will re-​draw some lines or something like that.

0:46:37.6 Carissa Hessick: So we’re just trying to gather data because we know so little about them, but the theory that Pfaff and others have endorsed, I understand the appeal of it. We know that prosecutors often fail to act, they often fail to prosecute, and so they could do that more often, and that’s a way to bring leniency to the system. He’s not wrong, it’s just… It seems almost like a strange thing to do, to tell somebody your job is X, and you could make the world better by taking job X and then doing not X, and I think because of that, we’ve actually seen… We’ve seen a lot of these prosecutors not just sort of reduce the number of cases that they bring, but say they’re gonna focus on different types of cases, and I’m not super enthusiastic necessarily about what those cases are gonna be. So for example, the Progressive candidate that ran in Queens against Melinda Katz, part of her platform was she was gonna go out there and she was going to start criminally prosecuting landlords that weren’t appropriately taking care of their buildings or employers that weren’t paying over time and treating that as theft.

0:47:51.5 Carissa Hessick: And I understand and appreciate why some Progressives, they see the criminal justice system, they see it’s really powerful and they wanna use it for their own policy ends, but that makes me nervous. I don’t think that that’s… I don’t think it’s a surprise that if you give somebody a job that has power, that they’re not going to think that what they should do is use that power, and then how they use it looks a little bit different. So is there something that prosecutors could be doing here? There is. Is there more that we could do to rein in their power? I think there also is. I actually… I have to say though… And again, this gonna make me sound naive, I think part of it might just be getting a lot more transparency into what they are doing, because the truth is I actually don’t… I don’t think the American public really trusts prosecutors with the discretion not to act that Pfaff and others are highlighting, so we actually… Here in North Carolina, we just had a prosecutor get removed, an elected prosecutor, there’s this weird statute that allows… I think it’s the judges in the county to remove him, they removed him ’cause he wasn’t bringing sexual assault cases, which again, I think there’s a segment of America who would be like, “That’s right, he should be bringing those cases,” but the truth…

0:49:09.0 Carissa Hessick: The truth is, when prosecutors make the news, it’s usually for not being aggressive enough. Every once in a while, you get a story about a prosecutor who’s been too punitive, like the case out of Colorado with that case with the trucker, but it’s more often gonna be like a Jussie Smollett thing in Chicago, or the prosecutor down in Florida who said that she wasn’t gonna seek the death penalty or Alex Acosta giving a sweet heart deal to Jeffrey Epstein. I think the American public gets more upset about unwarranted leniency and a little bit… They’re less concerned about unwarranted punitiveness, and that just makes me think that if what we’re gonna do is try to set up some controls on the power of prosecutors, the way to probably sell that to America is to say, we should have more transparency into what they’re doing, and then if prosecutors… ‘Cause they’re going to have to, they’re gonna say, “Look, we’re plea bargaining these cases, because we can’t bring all of them,” I think that’s what could eventually spark the discussion in America about what we should be doing with the criminal justice system, because right now, they don’t say that. Prosecutors never run for office being like, “I only indicted 40% of the larceny cases that were brought to my office because that’s the trade-​off decision I made.”

0:50:26.2 Carissa Hessick: No, they say, “I brought more gun cases than my predecessor than by 20%,” so I think, again, it might sound naïve and maybe my hopes for the American voter are overblown, but I think that once we understand what the trade-​off has to be… And this is what I tell my students all the time. I’m like, If you’re gonna go… If a prosecutor is telling you what he or she is going to do, what area they’re going to focus on and prioritise, you ask them what they’re going to de-​prioritise because the answer has to be something.

0:51:00.1 Trevor Burrus: So I’m not sure if that gets into like an optimistic or a pessimistic place because in terms of…

0:51:06.5 Carissa Hessick: It’s hard to tell sometimes.

0:51:08.7 Trevor Burrus: As I said, if we’re gonna try and figure out how to at least roll some of this back, we have this criminal justice system built on… As we’ve talked about punitiveness, the fact that American public often wants to punish crimes, they’re very high level, even though occasionally they roll back and then on this idea of efficiency, which is a little monstrous, in my opinion, your criminal justice system should probably not be based on efficiency, and having a less efficient criminal justice system is actually the point of the jury trial, but… So all these sort of constraints with the American public at the bottom of it, how do we convince them that justice is more important than efficiency and mercy is as important as punishment?

0:51:56.1 Carissa Hessick: I don’t know, that’s a hard question, right? I think it is a hard question. I’ll tell you that the best answer that I got from this was I was talking to the director of Families Against Mandatory Minimums, Kevin Ring, and he was saying when he goes to speak on college campuses, he asks how many people in the audience themselves or one of their family members have been swept into the criminal justice system, not as a victim, and he said a lot of people raise their hand. And I’ve had that experience too. Now that I wrote the book, I’ve had people reach out to me and say, “I’m really glad you wrote this book because I had a brother or a cousin or a nephew who was pressured into pleading guilty, and it was a really unfair case,” so I think that might be part of it, is maybe the system is gonna get so big that it’ll sort of spur the backlash. But I have to say, and again, I don’t know if this is optimistic or a pessimistic, and you guys as Libertarians might disagree with me, I think that part of the problem here might lie in the fact that Americans are a lot more comfortable spending money to punish people than they are spending money to help people, and so many of the things that wind up being crimes are derived from poverty in one way or another. Look, there’s a reason why the crime level for upper middle class families looks a lot different than the crime level for families below the poverty line, can we explain it in great detail? We can’t.

0:53:28.7 Carissa Hessick: But it makes sense, and it’s backed up by the evidence, and yet, every time we talk about spending money in a way that would help pull people out of poverty, there is a real push back for that, but every time DOJ or in the States, the Department of Corrections where the police officers say, “We could keep people safer if you gave us X million dollars,” we find space for that in the budget, so I don’t know, I’m not a Libertarian, I’m just like a boring moderate person with no good sort of deep political convictions, but I suspect that spending money to help people, growing government to help people is probably not necessarily compatible with what you guys normally think, so I don’t know but spending money to keep people safe is compatible with Libertarianism, so I don’t know, maybe the challenge here is for libertarians, Trevor, maybe that’s what I’m saying.

[music]

0:54:32.6 Trevor Burrus: Oh, wow, I think that these are challenging questions, and I generally would rather spend money to help people than to put them in prison for non-​crimes, and of course, the first thing is to say, “Well, is the criminal justice system perpetuating poverty, causing problems, punishing things that aren’t crimes, all this sort of thing, and if we took every non-​libertarian part of the criminal code out of it, I mean it would be 90% slimmer than it is now, which would be going a long way towards helping them not stack charges, all this stuff…

0:55:03.9 Carissa Hessick: So the Libertarians can fix it in a different way. I get it. Alright, you win.

0:55:05.8 Trevor Burrus: Exactly.

[music]

0:55:20.8 S?: Thanks for listening. If you enjoy Free Thoughts, make sure to rate and review us in Apple podcasts or in your favourite podcast app. Free Thoughts is produced by Landry Ayres. If you’d like to learn more about Libertarianism, visit us on the web at lib​er​tar​i​an​ism​.org.