tv Expert Discusses the Courts Role in Mass Incarceration CSPAN October 15, 2021 8:05am-9:13am EDT
the senate and his recommendations to restore it. he's interviewed by nebraska republican senator dan sask. watch american history tv and booktv every weekend on c-span2 and find the full schedule under program guide or visit c-span.org. >> we continue with the cato institute with an hour-long discussion on the supreme court's role in mass incarcerations. >> it is my distinct honor to in our annual conference with the annual simon lecture and my
honor to introduce this year's lecture, rachel barkow is vice dean and professor of law nyu law school which is also faculty director of the center on the administration of criminal law. her scholarship focuses on applying administrative and constitutional law to criminal justice.ol she's written more than 20 articles and is co-author of a leading criminal like his book. her book demonstrates our criminal justice policies undermine public safety and explains how we can get better outcomes by making changes that allow data and evidence to guide our choices while respecting constitutional limits. she received the nyu distinguished teaching award in 2013 and the law schools distinguished teaching award in 2007. she served on your sentencing commission and manhattan d.a. conviction and integrity policy advisory panel. in 2015 she cofounded a clemency resource center that obtain
sensing commutations for 96 people as part of president obama's clemency initiative and earned her nyu make a difference award. after graduating from northwestern university and harvard law school ship look for d.c. circuit judge silberman and justice antonin scalia, then briefly practiced in washington before joining the nyu law faculty. she will speak on the reports of mass incarceration. >> thank you very much for sticking around. i very much appreciate it and it's an honor for me to deliver the final lecture today and celebrate the drafting of the constitution with all of you. i'm especially happy to spend constitution day here at cato actually because of the great work catered is generally defending constitutional rights but specifically because of the excellent work when it comes to criminal laws.
it's one of the leaders in defending those constitutional rights and its work has been outstanding. but i'm going to talk about a contrast between that outstanding defense of the constitution here and what it looks like at the supreme court because the contrast is quite stark. it's the court almost complete abdication in criminal proceedings in spite of clear constitutional language and history that's the topic of my lecture today. so plenty of blame to go around for america's rise in mass incarceration but today i want you to understand the supreme court's role in that because it is one of the architects. it might not have designed it and they might not have intended it but they are absolutely made sure that the foundation of mass incarceration has stayed firmly in place. so let me first start by getting everybody up to speed on just how crazy our commitment to
incarceration and criminalization is before i get to the supreme court's role in all it because not everybody is as well versed in what things look like when it comes to criminal law and punishment. america used to look like the rest of the world when it came to incarceration and its use of criminal enforcement. until really the 1970s we had stable incarceration rates that looked like other parts of the world, certainly other western democracies. and then they starteded to exple and we nowst lead the world both in the total number of people who are incarcerated which is right around 2.2 2.2 millioe and the rate of incarceration per capita. we have a rate of 830 for every 100,000 and it's more than five times what it was in 1972 when we started this record climb upwards. it is five to ten times higher than other industrialized countries. so we have less than 5% of the world's population and almost a
quarter of the world's prisoners. but as shockin' as his numbers are and they think they're shocking, although a whatho is a shot by them as i think they should be they are the tip of an even bigger iceberg of state control. one out of every 38 people in the united states is under some form of criminal justice supervision. they are either incarcerated, ,n probation, on parole. in some states those rates are even higher. for example, in georgia it's one out of every 18 people is under some form of state control. whet of every three adults have a criminal record. for every 17 people born in 2001, one of them will go to prison or jail. i try to get the numbers across in as many different ways as i can, but i would summarize it as a lot. it is not falling proportionately across the population.
black people bear a disproportionate share of the brunt. they make up a third of the people incarcerated even though they are only 13.4% of the u.s. population. one third of black men have a felony condition. black adults are six times more likely to be incarcerated than white adults. when you look in particular communities, and d.c. more than 75% of black men can be expected to be incarcerated at some point in their lifetime. 70 -- 75%. one out of every three black men can be expected be incarcerated and there are time. hopefully this paints a picture for you that shows just how broad the sweep of criminal punishment is in america and how many people it is reaching.
i could give you much more information and i could talk you -- to you about the thousands upon thousands of consequences imposed upon people with convictions. the inhumane conditions on jails around the country. instead of talking about all of its tragic glory i will talk about the question i'm going try to answer. what does the supreme court have to do this? before i get to that, i need to start with the constitution. it is constitution day. you might be thinking that the problem is that the framers did not anticipate that the government might be excessively punitive. maybe they did not anticipate that they would abuse coarser powers and the constitution does not speak to this. if this were the case it would not be the supreme court's faults that happen under their watch. the problem would like with the
constitution itself. as it turns out, the constitution is not silent on governmental overreach on criminal cases. they did not let state power in criminal cases slip between the constitutional cracks rate is the exact opposite. they were well aware at how the state could abuse the coercive powers. they knew about the bloody codes in england. they would fear that the majority would oppress the minority through criminal law and punishment. how the police state would deprive people of their liberty. far from being silent, the constitution i would say is kind of upsets -- kind of obsessed with it. one of the preoccupations is regulating the government when it comes to promote powers. even before the bill of rights
the constitution provides protection for people accused of crimes in the very structural provisions a document sets out. the framers worried but if you had a congress that tried to single out political families -- enemies. alexander hamilton observed, the creation of crimes after the commission of the fact. has been in all ages the favorite and most formidable instruments of tyranny. they were worried about it. article one prohibits bills of retainer. article two sets the president right next to the commander-in-chief powers to give pardons for all federal offenses except for cases of impeachment. the supreme court told us that it exists to afford relief from undue punishments.
in other words the framers were aware and gave the president a way to check government overreach when it came to excess punishment and punitive nest. what would happen if the government work together to single out single groups? maybe they let that one slip through. they did have envisioned. they relies on the judiciary to be a key check on the applicable branches before people can be convicted of a crime they are entitled to a judicial process. you have a federal judge with a lifetime tenure and -- to ensure that we have fair and impartial decision-making in a given case. they did not stop there the framers did not trust judges alone. judges wharf mel -- relatively
more -- they are the government. they were appointed through a process that favored governmental connections. they would be naturally sympathetic to parties in power, because they were dropped -- drawn from the same ilk. the framers did not think that judges would be sufficient protection against data abuse and criminal cases. so it provides in article three, the original document, that the trial of all crimes must be by jury. to our modern sensibilities today, it may seem antiquated, it was no afterthought for the framers of our government. they did not want anyone to be subject to governmental punishment without an agreement from ordinary people. under the constitution structure
the jury would have a bowl power to protect people from that. you could not twice put someone in jeopardy if they were to acquit. that person would be free. they would act as a check on the legislative and executive branches. even before the bill of rights, the framers thought it was absolute critical. in addition to all that, the framers once again focus like a laser on criminal excess. four of our first 10 amendments focus on. the fit them in acts as a check on the states executive powers for grand jury's. the due process clause provides the government to follow proper process to follow before depriving someone of life, liberty, property. the jury would be drawn from the community. there are a bunch of other
brights and. speedy trial, notice of criminal charges, right to confrontation, right to counsel. eighth amendment at -- against excessive fines. it is hard to imagine a constitution that was more concerned with state overreach and criminal matters. from investigation to prosecution, adjudication to legislation defining punishment. it is not the case that the constitution is failing to protect against government excess and criminal matters. i would say it is a failure of its guardians, the supreme court. the court has failed to protect against government excess you a host of decisions that do not bear scrutiny if you care about the constitution text, original
meeting, or good government design. they only make sense if you're animating principle is almost a pathological indifference of the government. what i want to do for you today is highlight some of the key areas that are the most direct relationship of mass incarceration. how do you end up assuming people incarcerated? it is part of an equation of two main factors. you are admitting more people into your prisons in jail and they are staying longer. it is those things working together. for admissions the more people you are charging with crimes and convicting the more admissions you will see. the longer sentences are the longer they will stay. on any given day more people giving -- will be incarcerated. the supreme court has been a critical player in opening the floodgates for admission and
lengthy sentences. i will start with the court's role in the admissions boom and what they did. we will start with the meteoric rise with incarceration that started in the 1970's. it coincided with the supreme court, at that moment, allowed prosecutors to threaten people with punishment orders of magnitude greater if those people had the audacity to invoke their jury trial rights. colloquially this is known as pretrial bargaining. it is anything but a bargain for the defendant or all of us as part of a decide -- society. i cannot prove causation. there is not a empirical study with a direct line. i can tell you that it is an absolutely critical condition for. you cannot have mass
incarceration unless you have mass case processing. the only way you can process the number of promote cases we do in america is if you do away with jury trials. why would a defendant give up the benefit of a jury trial of their peers to make sure that the government can prove its case? why give up the gold standard of the constitution that the framers took such great pains to inflict -- include. the answer is they are being coerced. prosecutors are threatening them with longer punishments as a go to trial. more and more laws create mandatory minimums and prosecutors have full control over how much exposure risk is. as maxims get higher, that is an anchor to make all sentences higher. that targeting, negotiation --
bargaining negotiation framework is one where it prosecutors hold in norma's power. in 1971 the supreme court not only gave official recognition to this kind of bargaining in new york, but also praises it. it views as a necessity. the court said that if every criminal charge was subjected to a whole trial the state and federal government would need to multiply by many times the number of judges and court facilities. i will give them some points for candor. they all but admit that we have to keep things going as they are because it would be difficult for judges if they had to have all the trials. it would be such an inconvenience that the tort -- jury would become. william blackstone warned us of this very thing.
william blackstone is relevant not as a founder but good enough. here is what he said about criminal jury rate -- jury. he reminded us of the delays and inconveniences of the criminal jury is the fair price we pay for liberties. here we have a court, basically's doing exactly what he feared would happen. too much work. the family -- framers fully agreed to blackstone. the jury was not just critical, but important far-right. -- for our rights. at that point the court was not aware how coercive they were.
the defendant took the prosecutors offer and the issue before the court was if the prosecutor had to keep his end of the bargain. that case did not cue up the fundamental problem of coercion. a case in 1978 did. hayes was charged with forging a check for $88 and $.41. during the plea negotiations the prosecutor offered to recommend a sentence of five years if you would plead guilty. can we pause and ask ourselves if you -- what can of world we are living in if you write a check for $88 and you get five years of your liberty taken away? hayes want to exercise his constitutional jury trial. he was told that the prosecutor
would amend the charge to add the kentucky habitual criminal act. he had two other charges from forgery and theft and he would be deemed a habitual offender and get a mandatory sentence of life. the prosecutor said it was his call. if you plead guilty, you get five years. if you exercise your jury trial and get convicted, you'll get a mandatory life. i cannot imagine it too much more coercive than this. it is teed up pretty well for the supreme court to recognize how it is going. in a 5 -- four decision the court refused to say was unconstitutional. the court said, the sentence can but -- advised by competent
counsel -- is unlikely to be given to's false condemnation. the idea is that competent counsel has a thin do with the coercive aspect of this. my favorite quote said, the presence of counsel has little redlands to the voluntariness of a guilty plea entered at gunpoint is no less voluntary because counsel can explain how the gun works. next to the court told us this is a dynamic that is one of prostitute or -- prosecutorial persuasion. it is persuasive in the same way a robber saying to you that -- your money or your life. i am persuaded to give you my money. still coercive but not exactly persuasion as we think of it.
the court says, without any evidence, it is unlikely to lead to false self combination. it is hard to know if that was naivete or eliciting purity -- duplicity. when we look at a defendant who is proven innocent through scientific evidence, a much larger body of cases where a defendant has been convicted. in those databases 15% of those people have been pleading guilty. if 15% pleaded guilty then something lead them to do it other than their guilt. it is the coercion they face if they go to trial. innocent people plead gately -- guilty because they were being threatened with so much more punishment.
we have an entire doctrine that deals with unconstitutional conditions. the government cannot give up -- force you to give up your rights because the government withholds your protections. it somehow viewed this as a different category of things and was part of the give-and-take of plea-bargaining. since they were decided in the 1970's, a few things we know have happened. guilty pleadings have skyrocketed. 80% of prosecutions with the result of guilty pleas and it is now 90%. if you look at state court data, it shows the same pattern. the other thing that happens is the difference between the sentence you get if you plead guilty and the sentence you get if you go to trial and it becomes greater.
defendants face sentences that are three times greater. that is true at state and federal levels. how could a prosecutor credibly threatens a sentence that is three times longer if they want to execute the right to a jury trial? how can that be anything other than a unconstitutional trial penalty? i think the facts speak for themselves. i want to emphasize what we are losing. the framers thought that juries were a big deal. let's highlight what injury does. as so many others habits -- have observed they are outside the government. they are not allied with the government the way judges are. the way judges are part of a system with prosecutors coming into their courtrooms everyday.
the framers were worried that judges were already -- always ready to protect against the weak and helpless as an. -- citizen. juries are designed to protect that by coming outside the government. there is a second wait that juries check our mental access. -- governmental access. jury has the power to prevent punishment. the government has not proven its case or it disagrees that is not a proper case for the government to charge for whatever reason. this is an important part of the history of the jury. colonists were well aware. colonial journeys -- juries were
acquitting from the overreach of the crown. people that were accused of things love like -- things like writing. rioting. no man can be condemned of life or limb or property without the right of the people. they thought the lack of a jury trial was one of the worst things the crown was doing. we all learned about the stamp act being an instance of taxation without representation unless it -- the violation of that act would provide admirably to the court of london.
in 1775 the sect -- the second continental congress listed trial by jury. it is in the declaration of independence among the grievances as well. for americans after the revolution, as well as before, the right for trial by jury was probably the most valiant of all civil rights. each state guarantees trial by jury and the articles of confederation as well. this was so fundamental that a required note debate. alexander hamilton tells us in federalist number 83 that if they agree and nothing else than the value they sat on the trial by jury. the distinction is at most that
federal review is a valueable safeguard. they love this thing. it is a centerpiece of our constitution. part of the reason for that was precisely this checking function had against a power. one of the antifederalists describes it as the democratic ranch of the judiciary power. thomas jefferson said that, whether the people should be in the legislative or the judicial department it is better to leave them out of the legislative. they were very pro jury. it is a very critical way to check against governmental overreach. until the supreme court allowed his become a non-entity. it is not just plea-bargaining that takes jury out of the equation.
that was a death nail. the court has undercut the jury in other ways as well. lemons on what the jury was told -- limits on what is told to the jury on the consequences of a case. even without the information jurors still have a pretty good idea what a punishment would be. they can acquit if they think it is too much. while a large proportion of the community has the idea of the going rate for a crime the rate of acquittal is higher. detroit, d.c., bronx have higher rates of acquittal. if you ask for a prosecutor to decide what is happening those cases they will call it jury notification and derided as something unlawful. it is exactly the role juries
should be playing. if you cannot take your case to a jury because the threat is too great you are losing that check. there is a third thing that losing the jury does and how it operates and how we lose this operation on the check on government. jury trials take time. that is the reason that the court wanted to protect plea negotiations. inefficiencies is one of its virtues. for the government to earn a conviction has to proves -- prove its case beyond a brief -- reasonable doubt. when the government has to do that it has to think about which cases are worth it and which are not. given all the effort i will have to expand, but in a world of mass incarceration prosecutors do not have to give much thought
to cases at all. they just turn them out. they turned them out impersonally the framers knew that they were turning out a process that was inefficient. it is supposed to be hard for the government to put people into cages and stigmatize them as criminals. it took five justices to justify that efficiency was more important. the supreme court dismantled this protection, but did not insist anything would be put in place. there is no oversight on prosecutorial pressure. george fisher has documented how judges will go along with pleased either -- ease the burden of the docket. they are focusing on the caseload before them and turning things out.
within prosecutors offers -- offices prosecutors are not obligated to let defendants present evidence before negotiation takes place. they do not need to share any of the information for the defendant. even exculpatory information. prosecutors do not have to explain why they offered a particular sentence to one defendant and not another. we do not have transparency here. defendants do not know what the other is getting. trials are heavily regulated, but the plea-bargaining process is left to the prosecutors discretion. i teach administrative law and criminal law. how we can possibly live in a world where there are so many
more checks and an agency is regulating an industry than an agency that is regulating your liberty. that world can only exist when you have a supreme court that has turned a blind eye at how coercive it is. i want to point out other institutional actors have fully adjusted to this new unconstitutional normal. we have state legislators creating statues where -- prosecutors come into legislative station -- sessions asking for new mandatory minimums. i am not making inferences. congress was thinking about lowering some and tory for drug offenses and the national association for das oppose the prosecution because of make their job harder.
that would keep the government from obtaining benefits gained through concession. they said this is what we need to make our job easier. plea negotiations that are coercive are one way to obtain more admissions. that is not the only thing the court did. we have about half a million people incarcerated on any given day that are not convicted on anything. they are locked up in pretrial. that is the result of six members of supreme court giving the blessing of the idea of pretrial lockup on the case of future dangerousness. it says that you can hold people in the exact same facility that they are held after they are convicted, not as punishment. pretrial detention is rep.
torres: in nature. -- regulatory in nature. the government interest in preventing crime outweighs the individuals liberty interest. i would like to point out that the entire idea of people detained pretrial are more likely to commit crime once released than those not detained. when you control for criminal history and all the things that you control for. that makes sense when you stop to think about it, when you detain somebody they lose their job, most people will be evicted , they lose custody of their children. their life is in shambles.
think how much harder it is when you are released to return to normalcy. it is more egregious to me that the court would think that liberty could be stripped away just because the government thought it was a good idea. here i will quote a longer quote from justice marshall in that case. he says throughout the world today there are men, women, children in turned indefinitely awaiting trials that may never come or that may be a mockery of the word because their government leaves them to be dangerous. our constitution can shelter us forever from those people unchecked powers. through 200 years it has grown more durable and more expansive and more just. it cannot protect us if we lack the courage and self-restraint to protect ourselves. today the majority of the court applies itself -- there's is truly a decision that goes forth
without authority and will come back without respect. amen to that, justice marshall. the result is clear. we have half a million people that are detained precisely because of this. the threat of detention is another chip prosecutors using their bargaining tactics. they get people attained pretrial and, in misdemeanor cases, you can be released with time served if you just plead guilty. we have you detained and will have you plead guilty so you can get out. that is how the court played a role in getting more and more people admitted. has also played a role in that second factor. the length of sentences. the court has complete we failed to police sentencing. there is a amendment dedicated to this.
a majority of the justices agreed that the eight that moment prohibits excessively long sentences. in a contradiction of language and history, we have had three justices that thought no sentence of incarceration could be disproportionate. a majority of the court says yes you can have long sentences that violate the constitution. the way they determine if a sentence is excessively long is effectively impossible to satisfy. no sentence is ever been struck down, even in a country where you get a life sentence for an $88 check. under that test, if you want to challenge your sentence under the eight the moment you have to show the sentences grossly disproportionate. you have to show the state has no reasonable basis for believing it will serve a
penological goal. it can include deterrence, rehabilitation, attribution, and this one's kicker -- incapacitation. if they say they need to incapacitate you for a really long time than the state has a reasonable basis. that is how you get a supreme court and lower court decisions that is ok to give someone a 25 years to life sentence for stealing a slice of pizza. that is how you incapacitate them from stealing more pizza. here are real eight the member in cases the supreme court has decided. you can be sentenced to life for three low-level offensives that can lead to -- she literally total $320. it is ok for 672 grams of
cocaine. it is ok under california's three strike law who stole three golf balls because of a prior record include robberies. it is ok to give a fifty-year to life sentence who had no violence at all, who had his second and third strike where he stole videotapes from a kmart worth $100. all ok. the supreme court has taken the judiciary out of the business of checking the state when it comes to punishment -- checking punishment. including the death penalty cases. the failure to do it in a noncapital context even though the constitution is no less relevant is really one of the worst examples of judiciary not enforcing explicit
constitutional guarantee. there are so many other areas i could talk about, but i think these in particular show a direct line between how you get increased admission and long sentences. we can talk about other things, and i'm happy to. allowing police miss contact through -- misconduct through immunity. these are areas that i think are interesting for another reason it they should have been areas that appealed to the more liberal justices that have otherwise shown an interest in poor committees, communities of color that have borne the brunt of excess. it is an area that should've also appealed to justices that tend to be more conservative that are adherence is to originalism --
i think this result is odd, only if you think the court as being divided along liberal and conservative lines. focusing on that division might make you miss the area where they united. where they are united when it comes to criminal law is deference to police and prosecutors. there is always a majority on the court for that. one reason for that bias, i would like to leave you with, is how we choose our justices in the first place. it is a bench that is drawn overwhelmingly from the pool of government lawyers. they have spent their lives and careers defending and reposing the government. we have rarely seen justices who represent regular people. see their stories up close -- close.
there would still be justices that would defend people accused of crime. we get a skewed perspective. they are more inclined to see themselves in the governmental lawyers arguing the cases and art to quick to defer. i want to remind you that the framers feared exactly that. they want to put regular people that were not part of that governmental machine between the government and any ability to punish. i think we have lost a lot as a result fort. there is not an easy answer for this. i would like to emphasize one that is a place a start. that would be diversifying the professional background as people who serve as judges. we have a bench that is dominated by former prosecutors and lawyers that represented the government. no one has done better research on this and cato.
they looked at the background of federal judges and found that 44% were former government advocates compared to 6% that were advocates for individuals against the government. if we look at those with criminal law experience, the ratio is four to one. since the early 1970's the supreme court has seen a threefold increase in the number of justices that had experience working as criminal prosecutors. it is not just the rise of prosecutors. it is the lack of any justices that have been stop and frisk or subjected to detention. that could bring a bible perspective. -- valuable perspective. no justice serving now or sense
marshall's retirement has worked as a criminal defense attorney before serving on the court. people who are advocating with earnestness and vigor on behalf of law enforcement. we are missing people who have has seen this on another side. i would like to call out cato for pointing out that more lawyers should be owing to the bench from the defense side. i do not know if that would actually -- absolutely solve it, but it is something we should be paying attention to. people interested in criminal law or form should be paying attention to it. at all judicial levels. when you have judicial elections in the state you see the same thing. i think it is time to think
about judges in that same light and get folks who really understand this. other interest groups are out there focusing on the subsidy of issues in the courts. labor groups focus on the courts because of how important it is with the union rights. abortion rights focus on it as well. judges really matter and these appointments really matters. it is not just a left right split is the last thing i want to leave with you. sometimes you see republicans who appoint judges because of their methodology, and up protecting criminal law guarantees in the constitution because they have a strong originalist grounding. sometimes democratic presidents do as well, and we see the reverse. president obama, who claimed to
be very interested in criminal law reform, he wrote a law review article about it. he clearly cared a lot about criminal law reform. of his judges only 14% had public defense experience. you cannot be complacent and just assume that because someone says they are interested in criminal law reform that they are thinking about how it will be reflected in judicial appointment. going forward, if you care about these issues, i would urge you to follow what your senators are doing and see what names they are putting forth. pay attention to state elections as well. i do not think this will change the tide of massacre's ration we have seen. this is a first step. the courts have been key players in creating mass incarceration and will be key players in
tearing it down. thank you. [applause] >> we have plenty of time, i do not know if you want to answer questions? we have 12 and half minutes for questions. you can submit questions online at #scotus on whatever #wrong -- were on. >> other any quick -- are there any internet questions yet? >> while you are walking up i will ask the first question to lubricate things we get muscle memory back for how this all works. you answered this in getting into a little bit of overcoming is a sean the backend.
you talk about the plea-bargaining part i was thinking as a devils advocate if it is a judiciary as being coercive with legislator? in the $88 forger is at the plea-bargaining that averages us or that you could get life? this is not a violent crime. a prosecutor has to get reelected and does not want to go light on murderers and rapists. the people are not riled up by being soft on forgers. the coercive choice, you can imagine, is five days versus a year, that would be different. the legislator is the one that first screws up right? >> i could cast blame on all them.
the legislative judgments in this area are not based in any empirical reality. these are doing nothing to keep us safer. prosecutors ask for some of these things and sometimes legislators do it on their own without being asked. it is not just at the bidding of law enforcement. the key common ingredient in both is the court could stop either. the judiciary could stop either of those things under valid constitutional authority. the coercive nature of the threat, if you were to look at the criminal crowed be it federal or state you cannot believe how many crimes are our. we have so many federal crimes we connected account. we do not have a valid account. state codes are not in the hundreds of thousands.
many choices for prosecutors is so great that allows them to create a coercive bargaining atmosphere. they say they will charge you with this to be good at trial or will agree not to charge it. it affects a sentence. it is the tools the legislators are giving, that are in many cases excessively long and there is a weird menu of choices that let prosecutors do it. it is the prosecutors deciding to use that authority to coerce people to give up their jury trial. the thing i want you to be most outraged about is that neither of those things should happen if the court was doing its job. we should not have excessive senses in these cases where is effectively cool and unusual punishment. we should not allow a constitutional right to be conditioned in this way. in both areas i view it as a court falling short.
there is plenty of blame to go around. it is definitely something we could say all three branches of been complicit. today i want to call out the one has not gotten the blame etiquette deserves. >> just like with administrative law, the commerce clause, too much deference or too much strain. >> related to ileus question, given that a prosecutor could stack up an entire available arsenal charges given what they are, what would be your preferred framework? >> it is not a super easy situation to deal with. i think if they stacked it -- you are raising the issue that if it is a case where they charge lightly and threatened to go harsh if you exercise your trial right then they should stack it all up in advance and say they are charging you with
everything and if you then decide to plead guilty we will dismiss some of them. i think that is another way of creating the same kind of coercive atmosphere. the question becomes what can the court do to police that kind of excessive charging? we can think of whether or not there is a real proportionality that says the punishment for some would be to excessive given the underlying facts of the case. the other way with me to think about what amounts to too big of a difference between what you face when you go to trial versus when you plea. line drawing is tough. i am a pretty big fan of it. i am not a huge fan of the most year tests. -- mushy tests.
that penalty cannot be greater than 10%. certainly the idea that is threefold greater is too much. making it about the distance between what you get if you plea versus what you get to trial. other things the court could do, short of that that would not be as effective but helpful, would be to insist that you get your rights to brady material. all the exculpatory evidence that the rescuer has against you, ask -- instead of the prosecutor not giving it to you unless you go to trial. that would allow defendants to make a fuller choice. it is not the perfect solution, but is something more modest and certainly doable. west virginia has done that in their state constitution.
some legislators have done it as part of constitutional law in new york. that helps a little bit. the other thing that could help in a long way would be getting rid of mandatory sentences. it is the biggest cudgel that prosecutors have. there is no discretion by the judge. pretrial detention is a huge reason people plead guilty because of that coercion. it would go far in setting a distinction between how much you can threaten >> they would be ways to mediate at least some of that and that could either happen through court decisions that the court just doesn't want to go further or legislatively. we could certainly see that as a matter of reform. >> sam has some online questions. >> yes, twice, this is from
gregory. have you-- >> i love gregory. >> and a pseudonym perhaps? >> maybe. >> good defense lawyer. >> how do you see the emer dependence -- emergence of privately owned prisons as a rate of oversentencing? >> not much. that one gets a lot of political air play. i know it became something that a fair number of politicians kind of have raised as a buzz word. i have to tell you when i hear about it and if someone lists that's the first thing they're looking at criminal law reform. they're not knee deep in this issue if you are, you would know it's less than 8% of people incarcerated are in a private facility. 92% are in public facilities and they all share in common all the same awful attributes. the difference between private and public facilities of
anything of significance. it's minor. the conditions, you could take a look at some of the things that have been written recently, for example, about rikers where i'm from in new york city, it's publicly run and as bad as you could imagine being described. i'm not saying that private facilities aren't a problem, but that's not the root of this problem. if what we're worried about are conditions or most importantly, i think, not to dismiss how important conditions are, but if the they think you really want to ask about what we do to people who are in prisons and jails is, how are they when they come out? because 95% of the people who go in rejoin their communities wouldn't you want to know they were doing a good job in those places preparing people for when they come out? essentially, a jail and a prison is just a big governmental program, we're spending a ton of money on it and asking people to take people in and make things
better when they come out. we don't study a single jail or prison in america, there's no transparency, no oversight and you know what? they're doing a terrible job because recidivism rates are sky high and there's a tendency to say that's not the facility, that's the person who went in. what good are the prisons and jails while they're there. and they're doing nothing to make a better. comparing a to b and what is a doing better than b. it's private facilities as well. there are black boxes that people go in, they're treated horribly, not given programming that could work and make things better and put in conditions that are violent and frankly could bring out the worst in anyone and we take those who are put in the situation and expect them to do well afterward. it's crazy. right?
it's a really crazy way to operate any kind of punishment regime. and that's crazy whether the state is running it or a private contractor is. >> i think we have time for one question right there. >> devon. >> you blame the supreme court for a lot of these problems, i wonder though if the district court judge accepting these plea agreements could cause problems with what the prosecutors are doing by asking two simple questions to the prosecutor. before i accept this plea deal, is the defendant appropriately charged for the crimes he committed? and two, is what you're asking me to accept here a reasonable sentence for those crimes? and then once they say yes, you turn to the defendant and say, prosecutors says this is a reasonable punishment for the crime he's convinced me, if you
decide to go to trial i don't think you're going to be punished for more than what the prosecutor says is reasonable and that's true, do you accept this plea agreement still? >> first of all, you should consider a career in judging, but as we haven't had judges who have done anything like that. in their defense, i will say some of what they're doing hands your tied precisely because what the court said, that if they go to trial the prosecutor can say that deal was if they pleaded guilty, but it's also a reasonable sentence for me, the prosecutor, to bring these additional charges for you upped -- under habitual offense a or b and once that charge is brought as long as there is evidence to substantiate that charge and as long as the prosecutor has reasonable cause the jury could find that on the evidence that the prosecutor is going to present, then if the jury convicts, a lot of these cases, the sentence is mandatory so
the judge can't do anything about it. so i think you're right that we could get more pushback from judges than we're getting from lower court judges and i will say that i think that, you know, it's constitution day and i was focused on the supreme court, but i think that district court judges could be doing much more than they are, and we should think about the population of the whole bench, not just the justices. but i also think that it's true that a big part of this problem lies in those mandatory punishments and the pre-trial's attention. although the pre-trial detention is the fault of the judges as well. they don't have to agree every time a prosecutor asks for someone to get detained. they reflectively go with that. they could push back more than they do 100%. if they did, it would go a long way, and the bringing up the subsequent charges makes things more complicated. >> i'm afraid that concludes this program.
it concludes our conference. let's give a round of applause to rachel. [applause]. now we're having for those of you here in person you've earned a reception. on our liberty garden on the roof deck the 7th floor and look for the event staff to help you on the elevator. those of you at home, it's four days of summer and i'd recommend if you're going to your own personal reception and with that we're adjourned for another year of constitution day. [inaudible conversations] ♪♪ >> weekends on c-span2 bring you the best in american history and nonfiction books.
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