Should We Heed Pleas for Plea Bargaining Reform?

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Chayila Kleist:  Hello, and welcome to The Federalist Society's webinar call. Today, March 29, 2023, we host a webinar titled "Should We Heed Pleas for Plea Bargaining Reform?" My name is Chayila Kleist, and I'm an assistant director of practice groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call, as The Federalist Society takes no position on particular legal or public policy issues.

 

      Now, in the interest of time, I'll keep my introductions of our speakers brief. But if you'd like to know more about any of our panelists, you can access their impressive full bios at fedsoc.org.

 

      Today, we are fortunate to have with us Kent Volkmer, who is a Pinal County Attorney in Pinal County, Arizona, where he has served since 2017. Prior to serving as County Attorney, Mr. Volkmer spent many years operating his own law firm, Wallace, Volkmer & Weagant PLLC, where he worked in a variety of fields including juvenile law, both delinquency and dependency; family law; guardianships and conservatorships; probate; wills; estate planning and criminal law. Prior to his time at Wallace, Volkmer and Weagant, he also worked as a general practice attorney at Cooper & Rueter LLP.

 

      We're also joined by Clark Neily, who is a Senior Vice President for Legal Studies at the Cato Institute. His areas of interest include constitutional law, overcriminalization, civil forfeiture, police accountability, and gun rights. Mr. Neily is the author of Terms of Engagement: How our Courts Should Enforce the Constitution's Promise of Limited Government. And his writing has appeared in a variety of publications, including the Wall Street Journal, Forbes, and National Review Online.

 

      Prior to joining Cato in 2017, Mr. Neily was a senior attorney and constitutional litigator at the Institute for Justice, and director of the Institute's Center for Judicial Engagement. He also is an adjunct professor at the University of Texas School of Law, where he teaches constitutional litigation and public-interest law.

 

      And, lastly, we're delighted to have with us, as our moderator for this event, Mark Levin. Mr. Levin is Chief Policy Counsel at the Counsel of Criminal Justice, and Senior Advisor to Right on Crime, a project of the Texas Public Policy Foundation, TPPF, conducted in partnership with the Prison Fellowship and the American Conservative Union Foundation. Prior to serving as Chief Policy Counsel at CCJ, Mr. Levin was the Chief of Policy and Innovation at the Right on Crime Initiative.  He also worked on TPPF's criminal justice program in 2005.

 

Mr. Levin has testified on criminal justice policy before Congress in various state legislatures. He also published dozens of policy papers on topics such as sentencing, probation, parole, reentry, and criminalization. And I'll leave it there.

 

One last note: throughout the panel, if you have any questions, please submit them via the question-and-answer feature so that our speakers will have access to them when we get to that portion of today's webinar. With that, thank you all for being with us today. Mr. Levin, the floor is yours,

 

Marc Levin:  Thanks so much.  Well, I'm so glad we're able to have this conversation. As we all know, plea bargaining is the way in which the vast majority of cases are resolved in the criminal justice system. And the genesis for this discussion really is a report that the ABA Criminal Justice Section Task Force on Plea Bargains put together over the last three years. And Clark and I had the privilege of serving on that task force, and I want to kind of start out by going over the 14 principles that we all agreed on. And I think a lot of those will be shared in this discussion.

 

      Obviously, once you get down to the nitty-gritty of figuring out what policies and practices should be and when changes should be made, it's much more complicated. And there are specific recommendations in the task force report that I'm sure this discussion will get into. But the overarching challenge here is how do we balance ensuring due process and fairness with also having some level of efficiency, and being able to achieve the goals that we all have for the system, in terms of public safety, in terms of doing justice?

 

      And, of course, there's a context for all of this, which, of course, is that there's limited resources, whether it's for prosecutors, for courts, for indigent defense. And that was particularly, I think, aggravated during the pandemic. And we're still dealing with court backlogs resulting from court closures. So that is another wrinkle that we dealt with as we worked through this.

 

      So, in terms of these 14 principles, it really starts with the basic constitutional principle, number one, that there's a right to trial. And that's important, in terms of accountability, justice, and legitimacy, to actually have some trials occur. And, also, number two, that we shouldn't have coercive plea bargaining, where the defendant's will is essentially -- no one is literally forced to enter into a plea bargain, but the reality is the differential sometimes is so large. In one study in New York, it was a six to eight times longer sentence for similarly situated defendants who exercised their right to go to trial.

 

      Bearing in mind, of course, there are instances where you have, for example, a vulnerable child in a sex crime case who would have to testify at trial. There are reasons of justice, sometimes, that prosecutors justifiably want to avoid a trial. So, it is a difficult question to determine when we are actually talking about a trial penalty versus a legitimate incentive to resolve a case. And then, certainly, some of the other principles that we agreed on was that charges should not be selected or amended with the purpose of exacting a guilty plea, through this kind of differential.

 

      And then, we also adopted some principles relating to the availability of data and transparency, both in individual cases and in the aggregate. And that is one of the major challenges here as we try to form better policies and practices, is that we actually -- in many jurisdictions, it's kind of a black box. We don't know what the disparities are, in terms of a different sentence in similar cases, because we don't actually know what pleas were offered. There's no data that can be examined on that. So, moving towards a more transparent system is something that, certainly, we established in one of our principles.

 

      And I think one of the other principles was to avoid a situation where people plead guilty to a crime they didn't commit. And that gets back to not only the issue of excessive differentials, but also making sure that exculpatory evidence is disclosed during the plea process. And then, of course, the right to counsel. I think some defendants may agree to a plea because they don't have confidence that they have quality representation. So really delivering on the promise of Gideon was part of our principles.

 

      Also that bail or pre-trial detention should not be used solely for the basis of incentivizing someone to plead guilty. And, as some of the remaining principles essentially involved, for example, not waiving rights as a condition of entering into a plea. So, for example, in Texas, we heard of some examples where somebody would be required to waive their right of non-disclosure to later seek record-sealing under state law, as a part of their guilty plea. So that's one of the things we said should not occur.

 

      And I think, finally, we really wanted to make sure that there was an adequate understanding of the collateral consequences that a defendant may incur as a result of pleading guilty. So, it's an informed plea, as well. So, with that, with those principles in mind, which, I think most people would probably say there's merit to, the question then becomes how do we put that into practice in a way that hopefully doesn't disrupt the wheels of justice, doesn't stop the wheels of justice from spinning? 

 

And so that's where I think we can take the discussion now. So, I wanted to turn it over to Clark to highlight some of — you've written prolifically on this topic — and highlight some of the directions you think we should go in to create a fairer system.

 

Clark Neily:  Thanks a lot, Marc. I appreciate that. And, thanks, in particular, to Kent for agreeing to participate today. It's no small thing to appear sort of opposite Captain Ahab on a whale hunt. And I'm very aware that I have strong feelings on this issue, but Kent has been tremendously gracious. We're done a version of this before, and it ends up being, I think, a very constructive discussion, which is, obviously, what we're going for.

 

      I think the first thing I would say about plea bargaining is that it's sort of one of these things that, conceptually, it makes a lot of sense. We're used to the idea that two parties to litigation, if they have access to all of the relevant information and they're well-represented, should be able to come to some mutually agreeable resolution. Those of us who've practiced civil law take as a matter of course that that is how most civil cases will be resolved. And I think there are good reasons for that.

 

      But I think criminal litigation is distinct in some important ways that essentially call into question that sort of intuitive sense that, conceptually, plea bargaining must be kind of an unproblematic way to resolve criminal charges. And I'll get into some of that in just a moment. I think, Marc, you actually managed to understate the role of plea bargaining in our system when you said the vast majority of cases are resolved through guilty pleas. It's actually nearly all of them.

 

In the federal system last year, according to data released by the U.S. Sentencing Commission, 98.3 percent of all criminal convictions in the federal system last year came from guilty pleas, as opposed to constitutionally prescribed jury trials. And we're really closing in on that magic number of 100 percent, which I hope would be troubling, even to sort of the staunchest defenders of plea bargaining. Even the Supreme Court, just over 10 years ago, acknowledged that plea bargaining is not some adjunct of the criminal justice system. It is the criminal justice system.

 

      So, it's, I think, tremendously important, and perhaps even more important, with respect to other issues, to make sure we're getting this one right. So why do I feel strongly that we're not getting it right? Well, there are a number of reasons. We'll get into those. I'm not going to try and cover them all now. But I want to sort of make a point that I hope would have particular salience for this audience.

 

I think one of the great frustrations that those of us who are sort of right of center or libertarian have in public policy is when the proponent of a given policy acts as if the policy that they're supporting is cost-free, or that if you can't quantify a particular cost, then you get to just ignore it. And, unfortunately, I've seen this. The classic example, I would say, that a lot of us are talking about now is electric vehicles. They don't use gas, so they must be awesome.

 

      Well, let's talk about what that battery is made out of and how we get those materials to make that battery and what happens when it wears out. Or solar panels, wind generation: all of these things, of course, have significant cost. Now, it may be that the net is a benefit. And that's a perfectly reasonable position to take. But if you haven't at least examined the costs, then you really can't come to that conclusion.

 

So what are some of the costs that I see with plea bargaining?  Let me admit right off the bat, it's a really efficient way to resolve criminal charges. No question about it. And I would be remiss if I didn't start with that. So, I'm not disputing the efficiency of the process.  I think the first cost that I would identify is the near-total exclusion of ordinary citizens from the administration of criminal justice. I think there are few things that are more clear on the face of the constitution than the founders' very conscious decision to put citizen participation at the very heart of the administration of criminal justice.

 

Among other things, criminal jury trials are the only right mentioned both in the text of the unamended constitution and also in the Bill of Rights. About half of the Bill of Rights deals with criminal procedure. And most of that is about criminal jury trials, both the right to have one, and the proper process for conducting one. And it's just inconceivable to me that they would have spilt so much ink over that one subject if it was just sort of, "Oh, and, by the way, here's a way that you could resolve criminal cases, if you wanted to. But there's a lot of other ways to do it as well." And I think that's highly improbable.

 

      And the exclusion of ordinary people from the administration of criminal justice has, itself, a lot of deleterious effects, including a substantial decrease in civic participation. I think that there are legitimacy problems when guilt is determined not by members of the public who have no dog in the fight, don't work in that system, don't work in the criminal justice system day in and day out.

 

And then, of course, there are significant transparency problems. It's no accident that the Sixth Amendment guarantees a right to a public jury trial. That's not mostly about the defendant. The right to a public jury trial is more of a process guarantee that's there for the rest of us, so that we can see what exactly was the government's case? How did the evidence stand up? And how do we feel about the conviction, or the acquittal, or the hung jury that ensued?

 

And then, of course, there are also very important reasons why we would want to put all of that on public display, including to highlight and identify potential misconduct by police or other participants in the criminal justice system. We have no idea right now how much police misconduct ends up kind of getting swept under the rug that would have come to light if more cases went to trial. And that's a non-trivial cost, I would say.

 

      Second — I won't dwell on this, because I've already mentioned it — I think, any time you, in effect, repudiate a very clear constitutional plan, I would say the way that we have done with federalism -- we were meant to have a federal government of enumerated and, therefore, limited powers. In its infinite wisdom, the Supreme Court essentially jettisoned that plan in favor of a nearly plenary authority for the federal government, using the aggregation doctrine, the necessary and proper clause, and all that other tomfoolery.

 

And I think that, here, we've essentially supplanted the founders' design for an extraordinarily painstaking and public process for resolving criminal charges with one that, essentially, we just made up out of whole cloth. It's not even the product of any sort of legislative deliberation, discussion and debate. It just emerged kind of organically over a period of decades. And I think that's pretty concerning, when you kind of just toss to one side a very carefully designed constitutional mechanism for achieving a particular result.

 

      And then, finally, and perhaps most disturbingly, we know that innocent people are regularly induced to plead guilty to crimes they did not commit. I say "regularly." Obviously, that's a somewhat open-ended term. I'm not going to sit here and tell you that we have any idea how often that happens. We do know that, of the 2,000 exonerations in the national registry of exonerations, about 18 percent of those were from false guilty pleas. And of the 300 exonerations that were accomplished through DNA or other scientific means by the Innocence Project, it's somewhere between 10 and 15 percent.

 

And, almost certainly, that's just the tip of the iceberg, of course, because post-conviction relief is very difficult to obtain. In some states, it's actually impossible if the defendant has pleaded guilty. So, we really have no idea. But we know it happens with some regularity. And I think that is something that we should be really, frankly, horrified by.

 

Right there in the Fifth Amendment it says that you have a right not to be compelled to incriminate yourself. And I think that being induced to plead guilty is pretty clearly a version of that. And we really just haven't built in, I think, the guardrails that are necessary in order to make sure that process is appropriately safe. I'm not saying anything is perfect. Nothing is. But we could do a lot better. And we can discuss, hopefully, some of the ways in which I think we could make it better. 

 

I'll end by saying this: I don't think that we're going to get rid of plea bargaining. I don't think that it is categorically unconstitutional, at least under the federal constitution, although, in some states, you could make a stronger case for that. So, the question is not so much, should we get rid of it? The question is, are there opportunities for significant improvement to make it safer and more consistent with the values that are so clearly, I think, and painstakingly set forth in the constitution? And the good news there, in my view, is yes, there's a ton of things that we could do to make plea bargaining a safer, more just, and more legitimate process than it is today. And I look forward to our discussion.

 

Kent Volkmer:  Marc, you're still on mute.

 

Marc Levin:  Oh, thanks so much Clark.  Well, I was just going to turn it over to you, Kent.

 

Kent Volkmer:  So, Clark, you discussed, specifically, guardrails. And I'm quoting, actually, from the introduction to the report that Marc had talked about earlier. And one of the reasons for plea agreements are -- I'm quoting, "To mitigate the excessive harshness of the modern American criminal justice system." And it acts as a safety valve. Plea agreements are the guardrails. They are trying to fix what, frankly, is a broken system.

 

I've been on both sides of the aisle. I did defense work for a decade. I've been doing this for seven years now. So, I've been on both sides. Our criminal justice system has been created to be as efficient as possible, both in the measure of cost, but also timeliness. The reality is we don't have the resources. And Marc relayed this earlier. We don’t have the resources to try every one of these cases. It would bankrupt communities.

 

I can tell you very quickly, I'm in Arizona. Our county is the third largest county. We've got about half a million residents. Sixty-two percent of our budget goes to our sheriff's department, our jail, our courts, and our prosecutor's office. So, of our tax dollars we're taking, we are already funneling the vast majority in. And much like the national stats that Clark pointed out, about two percent. We try about two percent on a good year. Those numbers have actually decreased through COVID. We're seeing the uptick back there. And what happens is, the way our system is created, in order to ensure both timely efficiency and cost efficiency, we have created a system in which there are — I would have to acknowledge — overly punitive consequences, oftentimes, if you go to trial.

 

      Particularly in Arizona, we have a very progressive system. So if you have two prior felonies, you're looking at mandatory prison, and significant mandatory prison, oftentimes a minimum of ten years, moving forward, with the court having absolutely no discretion to work around that. I think everybody would acknowledge that that is not a fair and just system. So what they've done is they've created a system in which we can use plea agreements to negotiate a more fair and equitable resolution.

 

      The way that these plea agreements should be working – and the way they do work, I believe, in my jurisdiction – is that these aren't for the cases where we have legitimate questions about guilt. Plea agreements are used for those cases where we have legitimate questions about what appropriate consequences are, because we believe that we should be right-sizing consequences. And that's really where the discussion comes about. There's an argument, "Well, that's putting all the power in the prosecutor's hands."

 

Well, it is, but the prosecutor is in a better position than an individual judge, in my opinion, to actually make that decision. And let me explain why. A judge, whether it be a male or female, they get in a fight with their significant other that morning, their kid got in trouble last night, whatever. They had a bad night. They wake up angry, and they come into court that morning. And they have full discretion without any guardrails. That judge could have very wildly differing positions that they give on a sentence, again, based on things completely outside of anybody else's control.

 

And that's inherently unfair and unjust. Because your judge is in a fight with their spouse, you're going to get eight years in prison? But if you'd have shown up three days later, you could have got probation or maybe a year in prison? Whereas, when it goes through a prosecutor's office, there's multiple levels. So, we have a line prosecutor. It has to go through their bureau chief. The bureau chief has to go through another line that ultimately goes up to the elected. There's a process to really appeal when these plea offers are being made.

 

So, the defense can say, "Hey, I want you to take that to the next level." And there's an ability to staff it. So, what you get when these plea agreements are made is it's the collective wisdom of the whole of the office, as opposed to the momentary decision of an individual. The other thing I'd really touch on is the efficiency. The vast majority of criminal offenses involve substance use and abuse. Again, I can speak specifically about Arizona. Eighty-five percent of people in Arizona prisons are diagnosed with SUD. That's the reality.

 

When we did a sort of informal cursory review of all cases in the last few years, about 85 percent involved either drug transportation, sale, possession, people that committed the offense while under the influence or, we believe, committed the offense in furtherance of trying to feed their addiction. That's about 85 percent of all of our criminal cases. What we know is we need to get services to those people sooner rather than later.

 

If it takes 18 months, like the average case now takes to get to trial, that's 18 months that the person's continuing to suffer with addiction and mental health issues, whatever, and we're not able to get those services into the community. So, the other efficiency is really the timely efficiency. Because we know whether you're a kid or older, the closer in time that we can have the consequences to the underlying action that we want to deter or modify, the more likely we are to have a successful result.

 

Clark turned me on to this, but now, for the first time, I'm blaming the Warren and Burger Court for essentially creating this complicated morass that prevents us from having efficient and quick trials. Like I said, for a homicide case, if the state says, "Hey, we are not making a plea agreement. We want this to go to trial as quickly as possible," and at every hearing, we're saying, "Judge, we want a trial date. We want the first available trial date," if we can get it done in a year, it's a miracle. Eighteen months is sort of the standard turnaround. And that's if we're expediting. That's if we're fast-tracking and we're not meaningfully negotiating in plea agreements.

 

So, we know that having that sort of gap between when the offense occurs and when the consequences are actually implemented does nothing, and it actually increases recidivism. So, plea agreements are designed to get efficient administration of justice. It's to save us money. It's to get it done quicker. But it's also to assure some sort of uniformity in the system, so similarly situated defendants are being treated similarly. You don't have justice by geography. You also don't have justice by how your judge felt when they woke up. So, Marc, I think that's all I have at this time

 

Marc Levin:  Well, thanks, Kent.  Those are really important points to consider. Clark, did you want to respond? I have some questions. And we may have some audience questions as well. But did you want to respond to anything specifically there?

 

Clark Neily:  I'll just respond really quickly. Let me first say that I think if we could clone Kent and put him in charge of all the different offices in the country, and also make him U.S. Attorney General, I'd probably find another issue to obsess about, because I have a lot of confidence in Kent. I think that he is really one of the rare proponents of something like the status quo that has really thought through, or seems to have thought through the pros and the cons. And so, I really appreciate that.

 

I'd just like to make a couple of points. One is, this idea that plea bargaining saves defendants from the harshness of the criminal justice system reminds of that aphorism about the kid who killed his parents and then threw himself on the mercy of the court as an orphan. Because a lot of the harshness in the system is the result of lobbying by prosecutors and other members of law enforcement. You can see there's a letter that was sent by the National Association of AUSAs to Chuck Grassley, saying that they oppose the elimination of mandatory minimums. It wasn't all of them, but a reduction in the number of mandatory minimums, because that's such an important element in inducing cooperation, which is, of course, just a euphemism for getting people to waive their right to a trial and plead guilty.

 

So, I'm not saying all of the harshness in the system is the result of lobbying by members of law enforcement. But I will say that it's not an accident that the system is optimized for plea bargaining, because that's what system actors expect and want to happen. So, of course, if you have these very harsh mandatory minimums, A, they didn't come out of nowhere. And, B, certainly, the desire to avoid the application of that mandatory minimum will help to induce somebody to plead guilty. But you've got to ask yourself whether that's a pro or a con. And perhaps it depends on where you're sitting when you ask that question.

 

And then, the second point I would just make is that — and, hopefully, we'll have a chance to get into this later — is that the sheer number of potentially coercive levers is really quite extraordinary, especially for people who have either not worked in the system or studied it. And I'm not going to try and enumerate all of them, but I'll just list a few of them and preface it by saying, try to keep in mind that it's not -- these levers don't act by themselves. They act in conjunction with one another, in a kind of synergy.

 

So, there's the famous case of this farmer, Giles Corey who was crushed to death under a board. And he probably didn't care all that much how big the biggest boulder was that they put on him. But the aggregate number of boulders was a really big deal to him. So, it starts with pre-trial detention. There's a lot of empirical data that indicates that people who are locked up pre-trial are more likely to plead guilty, both because jails are an extraordinarily unpleasant place to be. It's also very difficult to coordinate your defense from behind bars. Charge-stacking and creative multiplication of charges is something we're all very familiar with, so we don't need to belabor that.

 

Mandatory minimums, I've mentioned. It's even permissible -- eight out of twelve federal courts of appeals have specifically looked at this issue and said that it's permissible to threaten to indict or promise not to indict a defendant's family members, just to exert plea leverage on a defendant, which I think is quite extraordinary in a liberal democracy like ours. And so we should be mindful of the full panoply of levers that prosecutors are able to bring to bear. I have plenty of prosecutor friends. I know that they don't always sort of bring the full boat. But it's certainly an interesting question.

 

If we talk about the subjectivity of judges, which I think Kent is exactly right to do, what about the subjectivity of prosecutors who get to decide how hard they're going to push for a guilty plea? And which tools are they going to take out of the toolbox and apply to the defendant, and which ones are they going to leave in the toolbox, and why? So, again, I'll close by saying I think that the plea bargain is here to stay. I'm not entirely comfortable with that. But I'm also trying to be realistic in my approach to public policy. But I do think that it behooves us to take a very candid look at the system and really try to do so from sort of behind the proverbial veil of ignorance. Don't assume that you're going to be a judge or a prosecutor or even a victim.

 

Consider the possibility that you or someone you love could be a defendant in the system. And take a look at plea bargaining and the way it actually works in practice. And ask yourself, if you were in that unfortunate position, is the approach that we currently take one that you would support, if you knew you were going to be sitting in that chair one day? And, for me, the answer is obviously a hard no.

 

Marc Levin:  Kent, did you want to add anything? I have a couple questions I was going to pose to both of you.

 

Kent Volkmer:  I say fire the questions, Marc.

 

Marc Levin:  Well, actually, there's a few here. So, you mentioned, which was a great point, getting people into treatment for mental health and substance use disorder, especially with the overdose epidemic we're dealing with. Now, if somebody is basically -- if it's a diversion, you're saying to that person, if it was a drug possession case or whatever it was, "If you go into treatment, you're not going to get a conviction. And if you complete that, we're deferring it, and then you won't have something on your record for the rest of your life."

 

Now, I wouldn't think we should be counting that in terms of saying 98 percent of cases are resolved by plea, although maybe we are, because it raises a data issue. I'm just curious of your thoughts on that, because if somebody's not ending up with a conviction, then it's not really -- that's great, and there certainly isn't a loss, in terms of the right to trial, in that scenario.

 

Kent Volkmer:  Mark, I'll tell you that I have a robust diversion program that I'm incredibly proud of. In 2014 we had seven people enter it. Last year we had over 600 people in my community enter into it. So, we've really built upon it, and we've done a great job. But I have to caution that that is the area where I have the most amount of coercion, because I can offer a complete, almost, exoneration, if you will, a complete elimination of those criminal charges.

 

To Clark's point earlier, who in the world wouldn't say, "Well, even if I'm completely innocent, if you offer me a diversion, fine, yeah, the drugs are mine. I don't care. Let me go. I can sit through a class, and I can essentially get this freebee." So, I think it should count, because that's where we potentially see the greatest level of that sort of coercion. And, I'll tell you, I have to, on a regular basis, remind my prosecutors, "Diversion is not the place that we send weak cases."

 

Because if you don't have strong parameters, that's what ends up happening: weak cases that we couldn't potentially prove, that they wouldn't hold up to the sunlight that Clark's talking about, that a jury would say, "no, no, no, no." Our easy solution is "Hey, go to diversion.  Go get an assessment. Go do some community service. Make amends and move with your life." I don't think we should absolve that as part of the conversation. And I can tell you, in my 98 percent, I do include diversion resolutions.

 

Marc Levin:  Yeah, and I've heard the common justice or restorative justice program in Brooklyn, they have a process. They make sure the person isn't actually innocent before they allow them to come into this restorative justice program. But the other interesting issue, I guess, that perhaps relates to that is what is that role of judicial oversight? And, obviously, you've got extensive protocols in your office. But I think that there is some.

 

There was just a case here in Houston where, without the approval of the DA, someone below her entered into what appears to be kind of a sweetheart plea deal with kind of a prominent executive who committed, evidently, a serious crime. So, there's another side of the ledger here, where sometimes they're overly lenient. But the other question is so what is the role of the judge in examining to make sure the person's guilty, for example, before the judge accepts the plea?

 

Clark Neily:  Well, that really is sort of the cornerstone of modern plea bargaining. In federal practice, it's called Rule 11, which has a fairly detailed set of procedures for the judge to accept a guilty plea, including what's called a plea colloquy, where they make sure the defendant understands that they have a right to go to trial, and understands the charges against him, and so forth and so on. And talk to any practicing criminal defense attorney, and they'll tell you it's just a dog and pony show, because that defendant understands very well that if they don't say their lines exactly the way they're supposed to, then they're going to get whatever's in the other hand, right? There's the hammer and there's the twinkie or whatever. And they don't want the hammer.

 

      And I'm not saying, therefore, it's just completely sort of a Kabuki theater. But, unfortunately, there is some extent to which it is. And, ultimately, I think the judge is just not in a really great position to make the determination about whether somebody really is guilty or whether they were coerced. One thing that frustrates me quite a bit is when my friends on the other side seem to have a very clear understanding of the word "coerced" when it appears dozens and dozens of times in various criminal codes, state and federal. But then, when it shows up in plea bargaining, they're like, "Oh, who knows what that means."

 

But it's true, because coercion really is, ultimately, subjective. Even when it comes to physical torture, which is not used anymore, although it used to be, in this setting, people have different pain thresholds. If you threaten one person's brother-in-law with an indictment, they might not think that's a real threat. Another one is going to be like, "Oh, no, not my brother-in-law."  So, we have to recognize that this is, to some extent, not possible to really assess whether somebody has or has not been coerced into a guilty plea, and, instead, maybe sort of look at it from the standpoint of the kind of systemic guardrails and safety mechanisms that the framers already built into the process.

 

I have some ideas for what we could do to sort of augment the guardrails around plea bargaining. And hopefully we'll get to those.  But, again, I think having -- I don't know if I can even say "decided," because we, again, sort of backed into this. But having stripped away the incredibly elaborate assortment of safety mechanisms and guardrails with which the bill of rights bristles, I think we need to think much more carefully about what safety mechanisms and guardrails we need to add to plea bargaining, in order to make it safer and more legitimate.

 

Kent Volkmer:  So, Marc, my take — probably not surprisingly to anybody — on this is the judges should have minimal say in that. With all due respect to any judges that may be listening today, any future judges, any retired judges, they're the least-informed person of the facts of the case, in the entire system. They've never had a communication directly with the defendant. They've not seen everything that the state's seen. So it would seem counter-intuitive and, frankly, problematic that the person with the least amount of information would be, I guess, charged or tasked with trying to validate whether there was coercion.

 

It's just not the right person, given the way that our adversarial system is set up. They're a referee, for lack of a better term. They're not listening to the coaches inside the huddle. So, to see if there's been good coaching going on, they're not the ones that are really capable of making that assessment, regardless of how talented the judge is, how intelligent or anything else, they just don't have the facts and the information before them to be able to make that decision.

 

Marc Levin:  What is your sense about the impact of the defense counsel? It would seem that a defense counsel who has more credibility with the prosecutor, because if that counsel is in there saying, "There are the mitigating factors. These are the favorable things about my client, they've sought treatment, or they've done this or that," if the prosecutor's going to try to have to run down and verify each of those things, that's going to be very painstaking in a case that, obviously, part of the reason we're pleading is efficiency. 

 

And so, I know there was, several years ago, for example, in Travis County, it came out that in Texas, basically, the people who had appointed counsel weren't getting into a diversion program. The people that had more resources and had a high-powered counsel were all the ones getting into it. And they made some changes in that regard. But how does this dovetail, in your mind, with the right to counsel?

 

Kent Volkmer:  So, Marc, the criminal justice system, in my opinion, doesn't have a racial issue. It has a socio-economic disparity. So, it's not the high-powered attorney that really makes the difference. It's that the high-powered attorney represents a client who has finances available to get services in place. If I can present to you and say, "Look, this is my dad. This is my uncle. My uncle's got a job for me. I've got private insurance. As soon as I get out, I can go to an in-patient treatment facility. When I get out, I've got 24-hour wraparound services. I have a driver that's going to take me to point A, to point B. I've got a $45-an-hour job as soon as I get out, working for my uncle. I've got community support. I've got everybody here supporting me," that's a really easy pitch to make. Whether you're a public defender or a private attorney, that's an easy pitch.

 

The person that's sitting in jail right now who's got substance-use issues, but their access has been turned off, they've been in jail, they've lost their job, so they're saying, "Hey, I really want to get in in-patient treatment," when the judge says, "How are you going to do that?" or your defense counselor tries to explain that "Well, they're going to get on a list. They're going to try and get some sort of Medicaid/Medicare services." So what ends up happening is it's not the high-powered attorney, and it's not their skill level of representation.

 

It's the resources that are available to the underlying client that actually create the disparate impact. At least that's been my experience in my community. The very best attorney, when they've got a turd of a client, there's not a whole lot they can do for them, quite frankly. And I've seen the newest of green-faced public defenders that have been out of law school for six months put on a great case, when their client has all these typically better resources or a plan put in place. So, the right to counsel isn't the issue. It's the right to services, the right to a system that would actually help somebody reintegrate back into our society. That's where the differentiation comes.

 

Marc Levin:  Did you want to address that, Clark?

 

Clark Neily:  No, I'm going to say I agree with everything Kent said.

 

Marc Levin:  Yes, and there are some good holistic defense models where the social workers and resources are being kind of provided to better equip the defense counsel to fill in some of those gaps. And I think it goes to what Kent was saying, that doing it early, at the beginning is so important, because when someone sits in jail, they do lose their job. They lose their apartment. So, they become in a worse position to be rehabilitated, in many ways.

 

Now, we recognize there are some people that do need to be in jail in very serious cases where there's a high risk to public safety — at least I do — while the case is being resolved. But I think that's pretty much the minority of individuals, of defendants. And, obviously, that gets into the presumption of innocence. So, let me just throw out one more question. Then maybe we should send it to the audience for questions. If we did want to increase the number of trials, besides additional funding, what other steps could be taken? And what would that funding look like?

 

Would decriminalizing certain conduct to take some cases out of the system, would that move the needle? And if we accept the premise that there are some cases now where there are real questions of guilt, that are being resolved by plea, and where there may be issues of misconduct that never come to light by police, even things like planting evidence that, again, I think are fairly rare, but that don't get unearthed if there's a plea deal, so what would it look like? And then, also, what resources might be required if we wanted to expand the ability of people to reopen a plea deal if new evidence comes to light? Would we need more prosecutors and such to accomplish that?

 

Clark Neily:  Well, I think, the best idea that I've encountered -- and I say that not just because I came up with it independently, but it's really been built out impressively by three professors: Kiel Brennan-Marquez, Stephen Henderson, and Darryl Brown. It's called the Trial Lottery. And the idea would be that you would take some percentage of cases that have resolved through a plea agreement, and before the guilty is entered, you would send those cases to trial. And we could do some fine-tuning. It may be that you don't send certain cases, like cases involving children, or sex cases or something. But you try to get as random a sample as reasonably possible. And you send those cases to trial to see what the outcome would be.

 

And if there's a conviction, then the defendant gets the benefit of the plea, because it wasn't their choice to participate in the trial lottery. If there's an acquittal, obviously, the defendant walks. And if there's an acquittal, the other thing we would do, I think, at a minimum, is what's called a sentinel event review, which is what you do after a plane crashes or significant acts of medical malpractice where it's not necessarily trying to assign blame. You're trying to figure out what it is about the process that caused this horrific result where somebody was induced to enter into a guilty plea but was then acquitted at trial. 

 

      So that would certainly provide a lot of, I think, very useful data. And we would get a much better sense of whether there's essentially a kind of perfect one-to-one connection between people who plead guilty and actual guilt. I've already asserted that there isn't. I think, actually, the numbers might be quite surprising. Because it wouldn't just be people who are acquitted. It would be cases where there was a hung jury, for example, or there was some problem in the proof. Whether or not the person was guilty, the government just simply didn't have the ability to obtain the conviction.

 

And, of course, in our system, which is famously optimized for preferring false acquittals over false convictions, the so-called Blackstone's ratio, better that a hundred guilt men go free than one innocent man be convicted. That is the system that we were bequeathed by the founders of this country, and that is both described and prescribed in the text of the Constitution. So that's the system that defendants are entitled to have their charges against them adjudicated in. And if people don't like the Blackstone's ratio, the solution is not to side-step the Constitution, but to amend it.

 

Marc Levin:  Kent?

 

Kent Volkmer:  So, Marc, I have two solutions. My colleagues may not agree with me, quite frankly. The first one, I think -- in Arizona, we don't have a safety-relief valve. There are mitigated minimums. And they are unduly harsh in most cases, particularly revolving around drugs and drug offenses. Multiple-time simple possession, simple pill of fentanyl, for example, you're looking at a ten-year minimum sentence after the third time you get caught. If you're on probation, a judge can't go below ten. You can get as many as 15 years. If you sell a quarter of it, you're looking at 15.75 up to 35 years.

 

And we really put our judges in a tight box, which really disincentivizes any defendant from going to trial. Because if they are, in fact -- I may offer a probation offer to them. I may offer a very short sentence, followed by a probation tail, in some of those cases. So, if they're looking at, "Oh, I can do two and a half years, and get a tail," or "If I go to trial and lose, I'm looking at a minimum 10-year sentence," they're just not going to roll the dice, even if they believe there may be an issue with the strength of the state's case, or true factual innocence.

 

      The other thing, and it's actually those that are on here, the 2023 Plea Bargain Task Force Report. It's actually the footnote. It's the very last footnote. And I kind of read through this, and I found this very interesting. And I'm sure I'm going to get this person's name wrong and I apologize, but Nazgol Ghandnoosh came up with an idea on the second look at injustice. And it essentially would allow, after a period of time, for a court to go back and look at cases where somebody was sentenced, with the power of hindsight, saying, "Hey, was this an unduly or overly harsh resolution? Particularly those that go to trial, so it would give that sort of look-back to say, "Hey, what's going on?"

 

And I know one of the things suggested in here was a more robust, I guess, ledger of plea agreements that have been offered in that negotiation. I can tell you, here, we go through and part of the soliloquy when they take a plea is, "What was the offer?  If you're not taking this plea agreement, what were the terms of the plea agreement? What would be the resolution if you accepted that plea agreement? What's the resolution if you go to trial and you're convicted?" So, oftentimes, that plea agreement is already put on the record.

 

So, I think that second look at injustice, I think, if you're looking at what the plea offer was offered, the defendant actually went to trial, and then, looking back at a later time, coming back, I think those two fixes would increase trial a little bit. Not significantly but, frankly, the system couldn't handle 15 or 20 percent trials. I think you, potentially, would bankrupt the system. But this would be a gradual increase.

 

      My final comment, and it's just a brief response to Clark. We've had this conversation before. One of my concerns with the trial lottery is we would want to exclude particular cases from that trial lottery. For example, sex assault cases, I would want to – child molest cases, those cases where the state, perhaps, entered into a more favorable plea agreement to spare a victim from being retraumatized. Because we know, every time they have to relive this, it's incredibly traumatizing to them.

 

This person's already taken responsibility. This person has already received a negotiated consequence. To then, re -- I guess, traumatize a victim, I think would be a bad idea. So, I'm not saying Clark's idea is bad. But I think we would need to put, to use his words, some guardrails on the type of cases we would want to look at, just because of unnecessary trauma we could be inflicting on victims in the community.

 

Marc Levin:  Well, those are some really important points. We have some questions here in the chat. This is from Jeffrey Wood. "To what extent do the panelists believe that the courts have created this problem, in part by undermining the legal certainty of trials through the creation of 'balancing tests,' extra-constitutional procedural complications, etc.? When a person considering committing a crime expects justice to be swift and certain, they're much less likely to commit the crime in the first place, and it narrows the aperture for plea bargaining."

 

Clark Neily:  Well, I think Kent and I both agree that the courts do probably bear some responsibility for kind of setting the table. I guess I'll take issue just with a little bit at the end of that. I do believe that swiftness and certainty of punishment are much more important than severity of punishment. I think the data bears that out. But I don't think the data supports the idea that most criminals are kind of rational decision-makers and calculators and, "I really would like to rob the bank in order to support my drug habit, but geez, they've got me timed down from arrest to conviction to under a month now. And if it was nine months, I'd be more okay with it. But, no, I'm just not going to rob the bank, because it's one long --"

 

No, that's not realistic. But the, I think, more challenging point here is that the process of trying a case in our system now is much more complex than it was at the founding. There's no question about that. You can look back. They could dispose of a dozen or more cases in a single day back at the founding. To some extent, that's because nobody had attorneys, or almost nobody. Certainly, there were no court-appointed attorneys. And hardly anybody went to the trouble of hiring one. So, you basically just showed up, said your piece, the state called the witnesses, and you were done.

 

      So, it's certainly a heavier lift now than it was.  Now, I think that reasonable people can disagree about where the pendulum is, in terms of its optimal position. Have we swung too far, in terms of protecting the rights of criminal defendants? There are some people who would certainly make that case. So, to the extent that a full-blown criminal jury trial in our system is much more expensive and time-consuming and effortful than either, A, it was at the time of the founding, or B, than it would be in a kind of platonically perfect system, then, it's very clear how that would create pressure to find another way of resolving criminal charges. And I think that is exactly what has happened.

 

      So, descriptively, I think, there's no question that the criminal procedure revolution of the Warren and Burger courts helped to set the stage and sort of rev up the process of the turn towards plea bargaining. But, that being said, let me just add this. The process of adjudicating criminal charges was meant to be painstaking and, to some extent, difficult. And it was not supposed to be an easy lift. It's not among the things that we want to make super-efficient. And I'll just say for one reason. I think there are many reasons. But think about it this way. If it is true, as I think it is, that most adults in this country have committed a crime for which they could, in theory, be prosecuted — I should add, by the way, apparently, most presidents and former presidents — then, the question becomes, and it's a very challenging one, well, if you're not going to prosecute everybody for every offense, what subset of offenses are you going to prosecute?

 

And, of course, we know that there are some prosecutors struggling with that very question right now, with respect to a former president. And there is a lot of disagreement about how to do that calculus. I think that a really useful litmus test is this: if you are not willing, as a society, to incur the trouble and expense of a criminal jury trial, that may be some good indication that, whatever the conduct at issue, it does not merit putting the person in a cage, simple as that.

 

Kent Volkmer:  So, Marc, I have a brief answer to Jeffrey, and maybe a somewhat controversial or perhaps even a hot take. But I think that we have lost our way. A jury trial should be about the search for truth. And I lay this almost exclusively at the feet of our judiciary. But a trial is no longer about the truth. Most of the litigation leading up to the actual trial itself is about what evidence is admissible, what evidence is not admissible, about how our rules of evidence are going to be interpreted, and how they're going to play in here.

 

And, essentially, what happens is jurors get a sort of sanitized version, on both sides. There's stuff that the prosecutor wants in, and the defense, and they get the sanitized version. And they're told, "With this limited information, and here are the rules that have, and you're limited here. If you add A plus B, what does it equal? It's C or D, and that's the only option." And all of that litigation, because some of that is dispositive of the case.

 

Think of a Fourth Amendment claim. If the search is thrown out and the drugs aren't there, then you can't proceed forward with it. I believe that the court has created this -- again, I'll call it a morass, that's actually made trying a case very complicated. I would absolutely and unequivocally say, "No holds barred. Let it all in." Trust a jury of their peers to make a decision to recognize BS when it's presented, to recognize truth when it's presented, and to reflect the morality of the community.

 

But as long as we continue to sanitize the information that they get, and control and manipulate the information they get, control and manipulate how they can use that information to get to a resolution, we're always going to be in this issue. And you're going to need the salve that a plea bargain is, to sort of fix the raging infection that's become our criminal jury system. So I blame that almost exclusively at the feet of attorneys, but, really, judges. J

 

Marc Levin:  We also have a question from Paul about what guardrails should be put on plea bargaining to prevent creative multiplication of charges to induce a plea. And, specifically, also, in cases where there might be allegations of police misconduct, whether this multiplying of charges could be employed to avoid that coming to light through a trial.

 

Clark Neily:  Yeah, I think it's really tough. I know some people who do this work in England, for example. And there seems to be just a professional ethic that it is not fair play to engage in sort of creative charge-stacking. Look, that's very subjective, first of all, what constitutes impermissible charge-stacking. And I think there's not really an obvious way to sort of establish a professional norm against it. It's either part of your culture or it's not.

 

I think Glenn Reynolds had a really interesting proposal -- Professor Glenn Reynolds in an article he wrote called "Ham Sandwich Nation." And I think the gist of it was that the prosecution would be required to pay the defendant's defense costs on any charges that were brought and on which they did not secure a conviction. And so this would create at least some financial incentive to avoid overcharging and sort of larding up the indictment with gratuitous charges that may be there either to help induce a plea or to do this kind of -- I've heard some defense counsel refer to is as sort of a Goldilocks approach to submitting a verdict form to the jury.

 

You send them in there with 12 charges, and they're going to say, "Well, we're not going to do 12 charges, but neither are we going to do zero. So, here's four charges on which we'll convict." So, I do think it's a problem. I don't think there's an obvious way to avoid it. And so, it wouldn't be my first choice, in terms of how to try to get a handle on the potentially coercive nature of plea bargaining. But neither should we throw up our hands, because I think there are some creative responses that are at least worth considering.

 

Marc Levin:  Did you want to address that, Kent?

 

Kent Volkmer:  My only response would be just the publication of plea agreements, I think, would address that in some regard, because you can kind of see what's going on. You can look at consistency. You could look at what is the offer being made? What is potentially going to happen at trial? Again, the example I used, if I offer you two years and you're looking at ten, that's a pretty coercive potential argument by charging at the ten years.

 

And I think -- again, I'm at the state level, and I'm up for election. So, the public would have the opportunity to view and say, "Hey, am I comfortable with what this representative, this duly elected representative that's supposed to be representing me is doing." So, I think you get back to the "sunshine's the best disinfectant." And I think opening that up so the public is aware, I think, would be highly beneficial.

 

Marc Levin:  Yeah. And we have seen a trend towards prosecutorial dashboards, for example, where people can see how a DA is allocating their resources and what the outcomes are. And I think that's been positive. And I think one of the issues that perhaps we haven't touched on is, for example, where there's -- of course, a case with multiple defendants, but also, more broadly, how does a DA -- and I don't know if y'all kind of have an internal tracking mechanism, but how do you kind of keep track of, okay, based on this case, in terms of the individuals, the defendant's prior convictions, the nature of the offense, all of this, here are the similar cases we've handled in the past. And how do we, through the plea process, ensure that there's some — no cases are exactly the same — but ensure some level of consistency in the types of sentences in similar cases.

 

Kent Volkmer:  So Marc, if I can respond to that, I'm going to use my colleagues to the north of me, which is Maricopa County, 4.2 million residents that live there. That's 62 and a half percent of our state's population. About 25 years ago, their then-county attorney, a guy by the name of Rick Romley, was getting beat up in press conferences. And they were saying, "On this side of the county, this person is being treated this way. On this side of the county, this person is being treated differently." And they were using race. They were using socioeconomic, the communities they grew up in.

 

So, he, at that time, created, essentially, a grid system. And it was just like, "Okay, if you have this many felonies, and this is the allegation, this is the range in which this can be resolved."  And it was firm. In order to deviate, it required a ton or work. And it worked for a while. And, in fact, it's a very efficient and very effective mechanism. But justice, by its very nature, should be individualized. And what that does is it takes the individualization out of it. It doesn't consider all of those factors.

 

For example, if your mom kicks you out of her house, and you're a 19-year-old kid, and you go back into mom's house to take a shower, to go to a job interview, and you take some food from her, in Arizona, you've committed burglary, because you entered a residence that you didn't have the right to be in, with the intent to commit a theft therein.  That's a Class 4 felony. You've committed a felony.

 

      That, in theory, is the exact same offense as somebody who, while you're gone, kicks a door in and takes every single item that you have in your house out of the house. And, under that grid system, those people would be treated identically, and I would tell you, if you look at the impact on the actual fabric of our society, it has wildly different results. So, my concern with that is that it becomes, essentially, a Henry Ford assembly-line justice system. And it doesn't allow for people to actually have justice right sized. And it doesn't allow for the proper administration of justice, which we're called to be, as ministers of justice.

 

      So that's my only hesitancy, is we've seen it. And once you get started there, it's about impossible to come away from it. And, at some point, you may be big enough, and you have to have some of those mechanisms. But I prefer the more nuanced, individualized. But it does run the risk that you can get disparate results. So you have to have more hands-on management, where you're having discussions or you're having regular meetings of people that prosecute similar cases to say, "How are we handling this? Why is this case different than that case? Why did that person get four years in prison, and that person got probation?" And if the prosecutor can't articulate why, then there's a mistake that's happening there. And that's a management issue, not a justice -- well, it is a justice issue, but based on a management deficiency.

 

Marc Levin:  Clark, we just have two minutes left. Do you want to wrap up with anything?

 

Clark Neily:  Yeah, you bet.  Thank you.  What a great event. Kent, thanks so much. I really enjoyed our conversation, again. The questions were fantastic. Let me end with a real-world illustration. In the fall of 2021, there were two high-profile criminal trials that went within a couple of months of each other. The first was Kyle Rittenhouse in Wisconsin. And the second was Elizabeth Holmes in Silicon Valley. I think that the fact that both of those cases went to trial, they had the public jury trial that the Constitution contemplates, was a tremendous benefit for all of us in the public.

 

Remember how strong those prosecutors came on in the Kyle Rittenhouse case and told us how guilty he was? And imagine what would have happened if they had the ability to threaten him with the death penalty, which they could not do in Wisconsin, since Wisconsin doesn't have it. But in Texas, they could have threatened him with the death penalty. Maybe the guy pled guilty, and we never would have found out how spectacularly the prosecution's case would have blown up. But we got to find that out, because, of course, that case went to trial.

 

      Now, the flip side. I yield to no one in my willingness to criticize prosecutors when I think they're doing a bad job. But I also need to praise them when they do a good job. I followed the Elizabeth Holmes prosecution in great detail. And hats off to that team of federal prosecutors. They did a spectacular job against an extraordinarily well-resourced and well-represented defendant with a very challenging white-collar fraud case.

 

And, again, the fact that we, as a public, got to have the benefit of the full presentation of the evidence against Elizabeth Holmes, I think, removed any doubt about what the just outcome in that case was. And that lends legitimacy to a system that I think stands desperately in need of it. So, plea bargaining may be here to stay, but we can do it better. And let's have less of it.

 

Marc Levin:  Kent, did you want to add anything?

 

Kent Volkmer:  I just want to appreciate the opportunity to have civil discourse. That's something that, unfortunately, is lacking in our community. I think there are areas that we can always improve on. I think these discussions help get us in that direction, as we continue to sort of sharpen our spear, so to speak. So, I appreciate the opportunity to participate. Thank you, Marc.

 

Marc Levin:  Well, thank you. The Federalist Society, I think, specializes in that, so thanks again.

 

Chayila Kleist:  Absolutely. On behalf of The Federalist Society I want to thank our experts for the benefit of their valuable time and expertise today. And I want to thank our audience for joining and participating. We welcome listener feedback at [email protected]. And, as always, keep an eye on our website and your email for announcements about other upcoming virtual events, including ones like our Courthouse Steps/Oral Argument combo on Smith and Samia, two criminal law cases which are coming up later this afternoon. We would love to have you all there. Now, thank you all for joining us today. We are adjourned.