Criminal Justice Reform Discussion
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Criminal justice reform has been a hot political topic for several years now, bringing together otherwise strange bedfellows in a common cause to address issues such as over-criminalization and mass incarceration. Although some academics have participated in reform discussions, their engagement has tended to be intermittent and their scholarship has been inaccessible to policymakers and reform proponents. Recently, however, a coalition of scholars known as the “Academy for Justice” has sought to help bridge the wide gap between scholarship on the books and the reform of criminal justice on the ground, with the goal of making the law and literature accessible to policymakers, practitioners, and the public. In this Teleforum, three scholars involved in the project will discuss the Academy’s new report on the criminal justice system, the relevance of academic scholarship for real-world policy, and the prospects for bipartisan reform efforts.
- Paul G. Cassell, Ronald N. Boyce Presidential Professor of Criminal Law and University Distinguished Professor of Law, University of Utah, and former U.S. District Court Judge for the District of Utah
- Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law and White Burkett Miller Professor of Law and Public Affairs, University of Virginia
- Moderator: Erik Luna, Amelia D. Lewis Professor of Constitutional & Criminal Law, Arizona State University, and Director of the Academy for Justice
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Speaker 1: Welcome to the Federalist Society's Practice Group Podcast. The following podcast, hosted by the Federalist Society's Criminal Law Procedure Practice Group was recorded on Thursday, April 19, 2018 during a live teleforum conference call held exclusively for Federalist Society members.
micah wallen: Welcome to the Federalist Society's teleforum conference call. This afternoon we will be discussing criminal justice reform. My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at the Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call. Today we are happy to have with us Professor Erik Luna, who's an Amelia D. Lewis Professor of Constitutional and Criminal Law from Arizona State University, and the Director of the Academy for Justice. Erik Luna will be introducing our other speakers. After an introduction from Erik and hearing from our speakers, we will then go to an audience Q&A. Thank you for speaking with us. Erik, the floor is yours.
erik luna: Thank you, Micah, um, and thank you to the Federalist Society Practice Group for organizing this teleforum and for inviting me to participate. The focus of today- today's event is not only extraordinarily important, but it offers a unique opportunity in America's highly polarized political environment. Criminal justice reform presents an issue, perhaps one of the only issues today, on which the left and the right can unite. And as it turns out the academic world may be able to help, as demonstrated by a newly released report.
So let me provide a bit of the backstory. Recent years have witnessed otherwise strange bedfellows bunking together to improve our criminal justice system. Ask yourself on what other topic do groups like the ACLU and the NAACP join hands with organizations such as Americans for Tax Reform and The Faith and Freedom Coalition. In our nation's capital, Republicans and Democrats came together to correct disparities between crack and powder cocaine sentencing, and pending bills would address such issues as America's bail process, federal mandatory penalties, and recidivism by former inmates. But in truth, the most remarkable bipartisan action is occurring outside of the beltway, where states are leading the way in top-to-bottom criminal justice reforms.
Although advocates may have difference motivations, political, social, economic, religious, what have you, they agree that something needs to be done about criminal justice in America. Despite many good reasons to support criminal justice reform, the movement still faces some daunting tasks. In particular a gap in knowledge exists among government actors and the general public. Many officials and most ordinary people tend to be unaware of the character and quantity of crime, the scope of criminal law, the rules of criminal procedure, the severity of pre-trial and trial proceedings, the nature of sentencing schemes and their severity, and the lasting consequences of conviction and incarceration. The lack of appreciation is hardly surprising given the sheer breadth and complexity of American criminal justice.
What is needed is the means to help people grasp the system's workings and its many interrelated problems, so Americans and their representatives can have a full and thoughtful discussion of possible solutions. And this is where academics may have a role to play. After all, their work is fundamentally all about reform. Criminal justice scholars spend most of their time studying, critically analyzing, and writing at length about crime, punishment, and processes, with an eye toward providing greater understanding of the criminal justice system, and proposing changes to that system.
Now least of all our primarily university responsibility is to teach, and the hope is that the experience of this day job, teaching about complexities of criminal justice, allows academics to help the American policy makers and the public understand these issues as well. Now traditionally, academic authors have written to themselves, that is, to other criminal justice scholars, and not to the public, or even to policy makers, professionals, or policy analysts, interested in criminal justice. And as a result academic scholarship tends to be inaccessible in the sense that it is dense, filled with jargon, and as a general rule painful to read and unfriendly to normal human beings. Often times scholarly works are physically inaccessible as well, hidden, uh, by uh, academic presses, and journals, and buried in libraries, or behind pay walls.
In an attempt bridge the gap between scholarship on the books and legal reform on the ground, a loose-knit group of dozens of scholars, called The Academy for Justice, recently issued a report, which takes on some of the most pressing issues in criminal justice today. Entitled Reforming Criminal Justice, the report is available for free at academyforjustice.org. It examines the full spectrum of issues for criminal justice reform, covering the topics within the areas of criminalization, policing, pre-trial and trial processes, sentencing, incarceration and release. The goal of the report is to increase both professional and public understanding of the subject, to facilitate an appreciation of the scholarly literature and the need for reform, and to offer potential solutions. And toward this end, the report is intended to be easily understood and used by professional and lay readers alike. It is divided into four volumes, which are then divided into chapters, each authored by a top scholar in the relevant field.
For this teleforum, we are joined by two of the chapter authors who happen to be two of the most distinguished criminal justice scholars in the country. Paul Cassell is the Ronald N. Boyce Presidential Professor of Criminal Law and University Distinguished Professor of Law at the University of Utah SJ Quinney College of Law. Professor Cassell is a former U.S. District Court judge for the District of Utah, and he has litigated prominent cases across the country, including before the U.S. Supreme Court. Professor Cassell is widely cited, uh, as a researcher on a variety of criminal justice topics, and, among other things, he is the nation's leading scholar on crime victim's rights.
Also with us today is Brandon Garrett, who is the White Burkett Miller Professor of Law and Public Affairs and the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law. He is the author of several ground-breaking books on criminal justice, including his award-winning monograph Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Among other things Professor Garrett is one of the world's leading scholars on the phenomenon of wrongful convictions.
So let me sketch out today's, uh, teleforum, and how we'll proceed. Professor Cassell and, uh, Professor Garrett will each have 10 to 15 minutes for their remarks. Afterward I may ask, uh, our speakers a few questions based on their remarks, and then we'll move into audience Q&A for the remainder of the call. So without further ado, Professor Cassell, the floor is yours.
Paul G. Cassell: Well thanks, uh, Professor, and I appreciate that introduction, and, uh, appreciate, too, that background that you provided about the report that we put together. I just wanted to underscore one thing. I believe there are 30 or 40 some odd chapters, and Professor Garret and I are each gonna be presenting, uh, points that, uh, were highlighted in our particular chapters. But as you mentioned the full report has a discussion of a range of a variety of different issues that I think are very important as our country considers how should we reform our criminal justice system.
Let me talk about my particular chapter, because I think it's, uh, an important one. A lot of times when people discuss, uh, criminal justice reform, they immediately think, "Oh. We need to," uh, "enhance the power of prosecutors, or provide more resources for the effective," uh, "conviction of criminals." Or others may say, "Well, you know, when we talk about criminal justice reform, what we really need to do is use strength and," uh, "representation for indigent defendants, or make sure that defendant's rights are more," uh, "strongly protected throughout the system." But no discussion of criminal justice reform without, would be complete without considering the interests of another important group, and that's crime victims.
Crime victims have compelling concerns in our criminal justice system, and I think it's fair to say that no system of criminal justice could ever gain broad community acceptance u- unless it somehow appropriately addresses the concerns of crime victims. And if you look over the last several decades I think you'll see across the country they're acting on a bipartisan basis. The vast majority of states have enacted either statutory or constitutional protections for crime victims. And these enactments I think all rest on a- a shared value, a value that, um, as you mention in your introduction, um, might be something that a- a broad coalition all the way across the spectrum from the left to the right could agree, could agree with. And that is the idea that there ought to be some recognition of crime victims throughout our criminal justice process.
So in my chapter, I tried to distill from the existing enactments across the country on crime victims' rights core sets of values, a core set of values, I suppose, of crime victims' rights, that ought to be reflected, uh, whenever we talk about criminal justice reform. And so my chapter began with a quick review of, uh, the crime victims' rights movement. It's interesting. If you go back to founding of our country more than 200 years ago you're looking at criminal justice systems where victims had a much more prominent role. At that time most criminal prosecutions were initiated by what was known as a private prosecution. That is a crime victim, uh, himself or herself would be authorized to pursue a criminal proceeding, and would indeed launch that criminal proceeding. And so if you look at the criminal justice system around the time of our nation's founding, crime victims obviously would have played, uh, a vital, a pivotal role.
But if you look at what happened over the next 200 years or more, I think it's fair to say that crime victims essentially faded into the backdrou-, uh, background of our criminal justice system. Uh, in fact one commentator described crime victims as "the forgotten man" in the system. And so if you fast forward now to around the 1970s you start to see a crime victims' rights movement developing in this country. Developing because there was a perceived imbalance in the way the system had operated, and that system found voice in a movement known as the Victims' Rights Movement, appropriately enough. And advocates argued that the system had become too preoccupied with the interest of defendants or with the interests of prosecutors, for that matter, and it was time to consider victims as part of the structure of our criminal justice process.
In 1982, there was a significant report on the subject. Uh, Presidents, the President's passports on victims of crime issued a 100 page report and said crime victims ought to be, uh, given a central role in the criminal justice process. One of the really interesting recommendations in that report was the idea that there ought to be a federal constitutional amendment protecting crime victims' rights, now that's a significant task, a very tall order when you realize that two thirds of Congress and three quarters of the states have to approve something like that.
And so, beginning in the mid-1980s, the Crime Victims' Rights Movement decided to go first to the states to try to enact the state constitutional amendments protecting crime victims' rights, and today about 35 states have enacted victims' rights amendments protecting a wide range of victims' rights. And with that, uh, in place, that, uh, foundation, if you will, in place, the Victims' Rights Movement in recent years has been seeking two things, I suppose, uh, the broader goal of the victims' rights amendment is a federal constitutional amendment. But most interestingly, in about the last 10 years, there's been an effort to enact, I would call it, a second wave of state constitutional amendments protecting crime victims' rights. This started in, roughly speaking, November of 2008 when California's voters overwhelmingly adopted what was known as Marsy's Law, a strengthened provision in the state constitution there in California to protect crime victims' rights. And since then, a similar provision has been enacted in Illinois in 2014, North Dakota and South Dakota in 2016, and, uh, Ohio, uh, in the 2018, uh, election cycle, and there are, a- a number of states, uh, Florida most recently just in the last few days, that have put such initiatives on the ballot here in the, um, in the November of 2018 election.
Now, when you start to look at those amendments, what do you see? I think you begin to see a core set of victims' rights, and in my chapter, I, I drill down into these in some deta- detail, but for purposes today, maybe I'll just briefly sketch what I see as being the core rights for crime victims. One of those is the right to notice of court hearings, uh, just if defendants and obviously prosecutors are notified when events are going to happen in our criminal justice system, we should do the same thing for victims. We also, al- uh, also ought to give to victims the right to attend those court hearings. Sometimes victims have been excluded as supposed witnesses in cases, or even actual witnesses in cases, and victims are no less than uh defendants ought to be able to see whether justice is being done by attending court hearings. The victims also ought to have the right to be heard at relevant proceedings in the criminal justice process.
But I think there are several points where, again, there's a broad consensus that victims deserve to be heard. Bail hearings, for example, where victims can provide information to a judge about what, if any, conditions of relief, uh, release of a defendant will provide safety. At plea bargains, where the victim's voice ought to be heard, is whether that's an appropriate resolution of a case. And at sentencing, so that when the judge is deciding what the appropriate response is to a conviction, the victim's interests are at least considered by the judge during that process.
I think it's also important that victims have the right to proceedings free from unreasonable delay. Of course, we know that our federal Constitution extends to criminal defendants the right to a speedy trial, and we ought to send, uh, extend an analog of that right to crime victims, as well, to make sure that their interests are protected against delays that are unreasonable.
We ought to, oh, give to victims the right to notice of a release or escape of the accused, so that they can take appropriate safety measures. We also ought to have more broadly the right to consideration of the victim's safety throughout the criminal justice process. We also ought to extend the victims the right to protection of privacy and dignity. And also, finally, a right to restitution from those who have been convicted of committing crime.
And so, I think, uh, when you look at those core rights that've emerged from this set of state constitutional rights that are around the country, we can start to predict, uh, what the future of victims' rights will be and indeed ought to be over the next, uh, let's say decade or two. Right now, currently about 15 states lack any constitutional protection for crime victims' rights, and I think what needs to happen in those states is consideration of state constitutional amendments. But even if we look at the 35 states where amendments already exist, there's a wide range of those amendments. Some of them are, what I would call, bare bones amendments that just extend very limited rights to victims, whereas others are more comprehensive and also have enforceable rights for victims. I think we ought to move in this country to having a floor of enforceable rights and comprehensive rights for crime victims throughout the criminal justice process, and perhaps the easiest way to do that is to amend the federal Constitution, that's one way to ensure that in all proceedings around the country, federal, state, wherever they may occur, crime victims' interests are protected.
And so that's basically the points that I cover in my particular chapter and, uh, I hope that our listeners uh, will take a look at, at my chapter and the others, as well, if they're interested in the topic of criminal justice reform.
erik luna: Thank you, Professor Cassell. Um, really appreciate it. Let's turn to, uh, Professor Garrett. Uh, Professor Garrett, if you could provide us, uh, your comments?
brandon garrett: Well, thank you so much for that wonderful introduction, Erik, and thank you, Paul. Um, and I agree with Paul that this, this entire Academy for Justice set of chapters, this entire multi-volume production was really an incredible achievement, and we, we owe it all to you, Erik, for, for shepherding this. It was a really a- it was a mammoth undertaking, and there are so many chapters here which provide important information about different facets of where criminal justice is going in this country. I should tell you, Erik, I've already assigned multiple chapters, not ones that I wrote, um, to, to students in different classes, and I just think this is gonna be enormously useful for policy makers and for members of the public, for law students, it's, it's great.
Uh, so, my chapter focuses on a different rev- revolution, not the victims' rights revolution, but the innocence movement, and, and like the victims' movement, there have been powerful changes across this country, which I don't think people saw coming two or three decades ago. But today, uh, people talk about innocence as an integral part of the criminal justice conversation, just like people talk about victims of an integral part of the criminal justice conversation. And real- really didn't a few decades ago.
In the past, wrongful convictions were thought to be so rare that they, or maybe even impossible occurrences, famously Judge Learned Hand called the "ghost of the innocent man convicted" an "unreal dream." Uh, many prosecutors described the impossibility of convicting an innocent person in this country, given how comprehensive our constitutional criminal procedure protections are, including rules like the "beyond a reasonable doubt" standard, the presumption of innocence, and other protections.
Um, but beginning in particular with the advent of modern DNA testing, we've seen a, a large body of post-conviction DNA exonerations. In my own work, I focused my research on those DNA exonerations, because the, the, the post-conviction DNA typically comes in from the outside, it's a, it was a new technology, and then in those cases, the evidence is innocence is particularly powerful. Uh, there've now been over 350 DNA exonerations in this country. I wrote a book called Convicting the Innocent, looking at the first 250, and I maintain a registry where you can read information about, uh, the types of evidence, the types of problems that came up in those DNA exoneration cases. Uh, but there's also a national registry of exonerations which documents over 2,000 individuals exonerated based on other types of evidence over the, the past 25 years, and I, I describe in the chapter for the Academy for Justice, the body of, uh, research exploring both t- that- those known exoneration cases, but also scientific research that explores what types of problems can contribute to convictions of the innocent. And both of those sources of information the, the, uh, the study of known exonerations, as well as the larger body of scientific research, some of it's spurred on by the anecdotes from these cases, have- have really changed policy a- across the country.
What's really interesting in how cross-cutting innocence has been is that as the, the, uh some of the latest uh annual reports from the National Registry of Exonerations described, prosecutors are really at the forefront of exoneration in this country. Uh, an increasing number of the exonerations that happen are coming out of prosecutors' conviction integrity units, where it's not innocence projects on the outside, but prosecutors on the inside who are tasking themselves with reinvestigating closed cases and, with increasing efficiency, detecting problems and aiming to, to correct them. Many, many jurisdictions have reexamined the procedures that they use for conducting interrogations, particularly focusing on videotaping interrogations, the conduct of lineups, uh, as well as other types of evidence, including forensic evidence in response to some of the problems that have been identified in these, these known cases.
Uh, so, for, to take an example, uh, eye-witness identification procedures were often a- informal. Police didn't have any particular written procedures on how to do a lineup. Uh, maybe a detective, a senior detective would show a junior detective how to put some pictures together in a photo array and show, y'know, six photos to suspect and see if a suspect recognized anyone, or maybe even had given a whole bunch of photos, or mug books, just, just troll through the mug books, see if you see any faces, um. The uh, um, rash of exonerations that resulted from cases, oft- often cases involving victims who misidentified their assailants, created the concern that, "Waitaminute, are we doing right by victims if, if these are suggestive lineups that are contaminating people's memory?" Causing them to make identifications that aren't based on their memory but are based on information provided for the police?
Um, scientists increasingly started to study identifications and since it's police themselves doing an experiment with the lineup, that, that kind of memory test is easy to replicate in laboratories. Uh, there's some, some topics in criminal justice which are really hard to study. It's really hard to conduct mock police shooting scenarios. But, uh, you can't practice deadly force on, on experimental subjects. But you can absolutely practice lineups and do memory tests. Uh, thousands of studies later, we have whole set of practices which have been well-validated and tested, and then there are also some frontier subjects where scientists are still t- trying to work out what the best approach is.
There was an important National Academy of Sciences, uh, product in 2014 called Identifying the Culprit, testing eye-witness identification. That was a committee that I was honored to participate in, and they recommended procedures including doing these lineup procedures blind, so that the person running the procedure can't inadvertently signal the answer to the eye-witness. They recommended having actual written policies, some clear instruction that you give to the eye-witness explaining to them what their task is, and, and more and more agencies are, are improving their eye-witness identification procedures along those lines. Some where entire states have adopted statutes, some particular agencies, like the federal agencies, have adopted a set of best practices for lineups.
And these aren't, these aren't expensive changes to make, and there's a, a lot of research suggesting that not only do these help to, uh, prevent misidentifications of innocent people, they also help to prevent identifications of fillers, or people who are known to be innocent, they're just included to round out the six person or how, however many it is in a lineup. But when an eye-witness is given suggestions or given an unreliable procedure and they start picking fillers, their credibility can be damaged and it can be harder to go forward with the criminal investigation. Studies suggest that as much as a third of the time, fillers are identified and that, that again, that damages law enforcement, so it's in their interest as well to have procedures that cut down on guessing and that improve accuracy.
Uh, another area where there's been an, e- enormous amount of movement, but also plenty of ongoing problems is in forensic science where in 2009 there's an influential National Academy of Sciences report, some of the prompting for that report came from, uh, DNA exonerations, where DNA technology set, y'know, hundreds of people free by that, at that time, but where most of those individuals had been convicted based on traditional forensic evidence, like hair comparisons or bite mark comparisons, and the concern was that those traditional forensics had never been validated in the same way that DNA was, where you had leading geneticists validating information on large population databases. So the National Academy is responding to this problem, and I think this is the right approach for, for Congress to ask the leading scientific agency in the country to look at something that was of importance to criminal justice. Uh, they, they said that with exception of nuclear DNA analysis, there was no forensic method that was rigorously shown to be able to consistently demonstrate a connection between evidence and a specific individual or a source.
In response to that report, there've been some other reports, like a 2016 White House Report. There's also been a real, real change in the approach of Congress and the federal government to funding applied research in forensics. There's much more research, there's an entire research consortium, in which University of Virginia where I am is a part of, that's d- doing statistical research, applied research trying to improve techniques used in forensics. And there hadn't been that national investment before, I think it's a, it's been a really wonderful and important change, spurred in part by, uh, by the news that these errors had led to actually innocent people being, being convicted. Uh, there're frontier issues looking at the psychological issues involved, a range of biases that can affect different actors in the criminal justice system.
Um, and I, in terms of the, I wanna end with the, with two things. One is the gap that, that Erik Luna mentioned in, uh, in his introduction. There's a gap between sophisticated researchers, uh, academics, scientists that study memory or forensic science or statistics, and the public. In research, I've done, doing jury studies asking lay-participants how they evaluate different types of evidence, like eye-witness evidence or finger print analysts' evidence. Often as a standard question in those jury experiments, we ask people, "Which type of error is more serious? The conviction of an innocent person, freeing a guilty person, or are they both about equal?" Now the, the value of the presumption of innocence to beyond a reasonable doubt standard in, uh, criminal cases that we have under the Constitutions expresses is a strong weight in favor of convicting the innocent. But that's not how most people answer the question. Y'know, we're surveying broadly demographically representative samples of people across the country, a really good balance of people from different age groups, different political preferences, and what we see is that there's a, a fair number of people, as many as a quarter to a third, who say that freeing a guilty person is the worst thing that could happen in the criminal justice system. We're not nearly as worried about convicting innocent people.
There's about a quarter to a third who say, "No, convicting the innocent, that's actually the worst thing. That's, that's the danger we want to avoid." And the bulk of people are in the middle and they say, "Eh, it's about the same, um, equally bad." And so that suggests that individual people are not as risk-averse as, as our institutions assume and that they may not be going into jury trials with, with those priors.
Uh, I ... Wanted to just end by noting that it is possible for law professors to teach criminal justice policy. I, I'm doing a class right now where we're teaching criminal justice policy reform, focused on topics in the state where I live now, Virginia, and n- next year I'll be moving to, to Duke, uh, Law School and so I'll, I'll hopefully teach a class focusing on North Carolina. But wha- what I was amazed is the topics that the students picked when they decided what their research papers would be about, because many of these topics are topics that I certainly never learned about in law school, and that were not really part of any discussion of criminal law. People wanted to talk about, uh, y'know, uh constitutional rules, the Brady rule, Miranda, the reasonable doubt rule. The topics that these students are picking focusing at the state level were topics like bail, uh, juvenile detention, uh, prison nurseries, risk assessment and sentencing, mental health diversion, drug dockets. These were topics that I never even heard about when I was in law school, and I think it's really remarkable that the conversation among law students, among the public has extended so broadly to so many different facets of the criminal justice system. Because of that, I think it's a, it's a really exciting time.
And uh, uh, so. I don't know whether we're going to get questions from, from you, Erik, or from listeners, or how this works, but I'll, I'll stop there.
erik luna: You be-, y- y- you bet. Th- thank you so much, Brandon. Um, and I, I think both, uh, Professor Cassell and Professor Garrett demonstrate, um, both the breadth of the criminal justice reform movement or the considerations involved, and I do commend all of the listeners to the, uh, to read their chapters, which are truly outstanding.
Um, it, let me throw out one question, then we- we'll go to, um, uh, to, uh, audience, uh, Q&A. Uh, and this is, and, and Brandon alluded to this, um, and uh the notion that prosecutors may well support um some of the changes with regards to wrongful convictions. The- the historic caricature, admittedly a caricature or stereotype, was that prosecutors and law and order types might well support victims' rights and they would oppose reforms related to actual innocence for any number of reasons, maybe efficiency or time delay. And that the converse, the defense bar and, uh, civil liberties types, um, would support reforms related to actual innocence, but would oppose, um, uh, uh, reforms related to victims' rights. And again, I admit that's a caricature, but perhaps some of that still exists, that there will be prosecutors who will be unlikely or law enforcement officers to be unlikely to support changes with regards to actual innocence, and um, uh, defense bar civil liberties groups that will oppose, um, changes related to victims' rights.
So, I throw it out to both of you, um, uh, what would you say to, uh, a recalcitrant prosecutor or law enforcement officer, or recalcitrant defense bar member or civil liberties um, uh, organizer, um in order to get them to ch-, to, to think twice about the position and to consider the changes that you support?
Paul G. Cassell: Well, thanks Erik, let me, uh, take a stab at that on the, the victims side of things. [inaudible 00:29:20] You point out the caricature that prosecutors will support victims' rights, and I think frankly what the character is, caricature is is a, is a deeper caricature, and that is that crime victims are all one-dimensional, hang 'em high, max 'em out, uh, blood-thirsty, uh, uh, sorts of persons. And, um, that is simply un- untrue. If you start working as, as I do with victims on, on a kind of day-to-day basis and individual cases, you'll discover that crime victims have a range of view on criminal cases. There are no doubt victims in particular cases that want, uh, tough sentencing, but there are other victims who want uh, uh forgiveness or what restitution or want some balance of all those, or want judges to make the final decision. And so it, it turns out that, uh, when we hear victims' voices in the process, we hear a variety of different things.
And so I, the point I would make to your hypothetical prosecutor who's listening to all of this is, y'know, what are we trying to do with the criminal justice system? I think we're trying to come up with something that produces outcomes that are broadly acceptable to the entire community, and criminal justice outcomes that are reached without considering the voice of the victim will inevitably lack that kind of broad consensus, uh, acceptance that is needed to have the system itself be accepted. And so, if prosecutors wanna work in the system, with the public supports they need to support crime victims' rights.
erik luna: Excellent. Uh, Brandon, do you have any, any thoughts on this?
brandon garrett: Sure, uh, well, y'know, I, I, I agree with everything that, that Paul just said. I think th- the views of victims are much more complicated than the, then the common stereotypes. Y'know, we increasingly see, for example, in death penalty cases that victims tell the prosecutors don't seek the death penalty, we don't wanna go through that. Life without parole is fine with us.
And as to the stereotype that prosecutors care about victims' rights more than defense lawyers, that's not necessarily true in all different sorts of cases. Um, plenty of cases that I've come across, some of which Paul was working on, where you have prosecutors that enter large corporate crime agreements and it's more convenient to not have the victims involved and have lengthy restitution proceedings and so it's the prosecutors that, that are y'know, j-, signing, filing motions saying, "We don't need it, it's too complicated, we don't need to involve the victims in this case." I think it's, um, our criminal system is complicated, there's so many different types of cases these issues can be really cross-cutting.
In the, uh, innocence area, um, I think it's increasingly understood that wrongful convictions are damaging to law enforcement, to prosecutors, and to innocent defendants, and in fact you often have, uh, very cross-cutting consensus that we want to prevent wrongful convictions, uh, it's, y'know, innocence projects themselves are kind of a funny combination of defense and prosecution function in and of themselves. Uh, I, I think in the early years, you tended to see more resistance among prosecutors when requests were made for DNA testing. It's really unusual now to see a prosecutor's office vigorously oppose DNA testing rather than just say, "Yes, we'll see what the evidence shows. We may have to reopen an old case, but that's, that's what you do if there's a concern that an old case might be a wrongful conviction."
You obviously still see very hard-fought exonerations and it's, may be much more hard-fought when you don't have something, some new technology like DNA involved. Um, but I think everyone's sense is that, in general, prosecutors are much more open to reopening old cases and that old attitudes towards finality in criminal justice have, have adapted. Uh, y'know, we now have every state, has a, has a post-conviction rule permitting a, a conviction to be reopened based on DNA, and many states have rules for, for non-DNA cases, cases, as well. These conviction integrity units are another reflection of the, the changing rules and changing attitudes towards, towards reopening, reopening old cases.
Um, the, uh, uh, that said, uh, when the discussion turns to rules that aren't as narrowly focused, I think it's sort of a narrower focus to just say, "Okay, well, we use an eye-witness, let's make sure we use a good lineup procedure. When we have an interrogation, let's videotape it. When we are using a piece of forensic evidence, let's make sure it's a validated technique." Those are sort of linked to particular types of evidence. When the discussion is turned more broadly towards emphasizing accuracy in criminal justice by, uh, having more information exchanged between the parties, uh, expanding discovery, open file policies, then all of a sudden, you're, you're, you're talking about changes that more broadly impact large swathes of cases, there may be more expense involved and I think then, then the discussion have become, uh, much more complicated and you've seen bigger fights over whether these changes are, are worth it or not.
So, I, I do, I do think there're still plenty of circumstances where you have bitter divides between sides about whether changes to criminal justice procedures are worthwhile or not, and in some ways, we're moving behi- beyond some of the easier issues like, just, just do, it's cheap to do it, let's do lineups the correct way, to, to more challenging issues which may involve, y'know, what kind of pre-trial discovery do we have. Do we need hearings? How- Who- who's gonna pay for, for the cost of maintaining an open file? Or for rediscovery in criminal cases? Those, those changes may be coming and they may really benefit both sides, b- but it's a much more difficult discussion.
erik luna: Great. Thank you, Brandon. Uh, uh, Micah, I think we're ready for, um, uh, our set of questions from the audience.
micah wallen: Alright. Thank you Professor Luna and thank you once again, Professor Cassell, Professor Garrett for that insightful discussion. Uh, let's go to audience questions. We have a question lined up. Let's go to our first question.
Ed Heimlich: Oh! Okay. Yeah, I'm Ed Heimlich, I'm calling from, um, Texas. I'm a- an exoneree. I was wrongfully convicted and, um, I have- that was 25 years ago, done a lot of study and research since and have come to the conclusion that the reason we have such an extremely high incarceration rate in our nation is because of the immunity doctrines that were started in the, uh, in the 1970s that, in effect, gave prosecutors absolute immunity, police qualified immunity, uh, uh, made it so that they had actually, uh, no consequence to violating the law to secure convictions. And, uh, so I, I'd like to note what, uh, anybody on this panel has to say about that, and if they think that there's gonna be some changes in that regard. Particularly in light of Nelson versus Colorado.
erik luna: Great. Thank you, uh, uh, Brandon you wanna take a shot at that on the immunity issue?
brandon garrett: Sure, well, y- you know better than most people how hard it is to, to file civil rights lawsuit after a wrongful conviction in this country. And, uh, there is more public discussion of qualified immunity for police officers, particularly in a, because of these high-profile police shootings, I think there's less public discussion of qualified immunity in the wrongful conviction context. Uh, absolute immunity is, is a really powerful defense, obviously, and it's very, very hard to hold prosecutors accountable for anything in their jobs.
It's really at the special ru- ru- rule for lawyers. It's true, defense lawyers, too, just in general, it's hard to hold either defense lawyers or prosecutors accountable for, for even terrible misconduct, and I guess as a lawyer, I, I understand why, uh, other lawyers would seek to protect their own in the profession and why judges are sympathetic to, to lawyers. Um, y'know one, I- I don't see the Supreme Court changing immunity doctrines any time soon. Um, I don't, especially in the Connick versus Thompson decision maybe was an opportunity in a very sympathetic case for the, for the justices to say, "Okay, if you really do have an ingrained policy in practice in a prosecutor's office, maybe you can go forward with a civil rights case," and there were not the votes in that case to, and so, um, y'know I- I- what can be done if one wants to expand civil liability? And one approach is just not to focus on fault at all, and- and- y'know, many states have passed no fault statutes just to, to design to compensate people who are exonerated. And the goal isn't to, there's no immunity question, because the goal isn't to hold individual officers or prosecutors accountable, the goal is to compensate people who suffered a terrible injustice at the hands of the state.
And, uh, y'know, my view tends to be that that's, compensation is more important. Um, what it means, though, is you may have a more effective way to compensate someone and get them started after an exoneration, after years in prison for something they didn't do. Um, but you won't have any kind of government inquiry or effort to find out what went wrong and whose fault it was. Th- those two things don't have to go together. You could have a government inquiry, um, at, or a serious office do an investigation just to see if anything can be learned from a wrongful conviction, and that can be separate from, from some statutory compensation. And may- maybe that would be the best way to go forward is to pass compensation statutes, but also have an office look into whether any lessons can be learned, write up a report, do something official in response to a, a wrongful conviction.
erik luna: Great. Thank you, Brandon. Um, Micah, do we have another question?
micah wallen: We seem to be having a technical error with the Q&A. While we are getting this fixed, Erik, did you have another question to ask?
erik luna: Well, sure. I'm a, I'm interested about, um, uh, the issues related to, um, how to, whether there's the possibility on all of these issues, both- both the issues of wrongful convictions and the issues of, uh, for victims' rights and a variety of other issues. Um, do you think reform has to be done in a piecemeal fashion, or is it poss- which, which has all of the political difficulties of, of, um, um, of, of a single issue, um, movements. Um, or is it possible that there could be a, a sort of omnibus reform process, whether it's at the federal level or at the state level, and is that, is that something that might well lead to the type of political compromise that's necessary to achieve big-scale reform?
Paul G. Cassell: Well, Erik, let me take a quick stab at that, it'll, and what I'm gonna do is the, uh, classic move of the law professor. I will take the question and, uh, (laughs) I suppose, uh, ask another question or make another point with yours.
erik luna: (Laughs)
Paul G. Cassell: When you say, "Can we have omnibus criminal justice reform," and I know you know this as well as anyone, our criminal justice system is at least 51 different systems if not, in fact, hundreds or thousands of different systems as we move from the federal to the state to the local level. And so, I guess, so that's a way of saying I'm not optimistic about a single global reform, um, that uh would be able to address all those systems. Now, I'm more optimistic when we look at individual pieces of reform. So, for example, Brandon has been talking about, uh, for example, forensic evidence. Maybe we could have some kind of a national commission that would put together standards, as he was mentioning, we have something like that in a few areas. But maybe we could get something along those lines to deal with the who-, the entire topic of forensic evidence. Or maybe the country could come together and say, "Look, we want a federal constitutional amendment to protect crime victims' rights." And I think there may be some other single issue, or maybe perhaps several overlapping and related issue types of reforms where the left-right consensus or whatever type of consensus is necessary might exist, but ...
The idea, I- I- y'know, that people bandied about decades ago about that there would be some global criminal justice bill or something like that, and that never really materialized then, and I doubt it's going to materialize now.
erik luna: That's, that's a fair comment and it actually, you look back just recently, the anniversary of Lyndon Johnson's crime report and, uh, many people have looked at that and wondered, um, what happened. And, and, and what didn't happen. And, and, uh, the notion of, of, of they change from A to Z in criminal justice, um, hasn't entirely been fulfilled.
Brandon, do you have thoughts or, um, or I have another question, if you'd like.
brandon garrett: Yeah. Well, if you don't have any more questions coming in, I mean. There's one version of omnibus criminal justice reform that some states have passed and that's some of these, the Justice Reinvestment Acts, and I mean those aren't, it depends on what you call comprehensive, but those are large-scale pieces of legislation that many states have adopt, a- adopted to try to change the way incarceration works, to defer, divert low-risk offenders from incarceration to think about community-based alternatives, to try to reinvest the savings into those alternatives. Um, I think many observers think that those laws have had an effect and they've prevented growth in incarceration in many states. They haven't made dramatic changes to reduce incarceration, but that they are a helpful start, and that is an example, sort of large-scale, system-wide compromised legislation to try to think about priorities and the cost and benefits of different types of, of sentences.
Uh, and I think in different forms in some states, they focus more on probation and reducing probation, uh, violations. Uh, other states they focused on reducing certain classes of sentences and focusing on mental health courts or other types of specialty courts. So, we may see more of that in the future where there're efforts to just think about who's in jail, who's in prison, what were our priorities, where do we want to be spending money, and we've seen real bi-partisan progress on, on legislation, uh, like that.
erik luna: Micah, do we have another question, or I- I've got a couple.
micah wallen: Yes. Uh, yes. We do have two other people lined up here, and let me see if our technical difficulties have been solved. And next caller, feel free to ask your question.
Roger: Thank you. This is Roger [inaudible 00:44:00]. Great presentation, I really appreciate it and um, I come, I guess it's obvious from the slant to my question, I kind of come from the right on this thing. I wonder to what extent the overcriminalization of about everything, uh, figures into the need for both the public attitudes about criminal justice reform and the reform itself. Because, uh, there are many crimes, many acts defined as crimes that are not, um, considered bad or criminal by a huge part of the population.
erik luna: Good question, and overcriminalization is certainly one of the, um, the core issues for, uh, reform, uh, reform advocates. Um, either for, for Brandon or for Paul, if you have some thoughts on this. Of course, overcriminalization is, is a sort of a difficult, um, uh, uh, concept to define. Oft- often times it's pointed to as from those who might be seen as from the right dealing with business crimes, regulatory crimes, corporate crimes, and perhaps those from the left dealing with so-called victimless crimes like drugs and, uh, drug use. Um, is, could some of the problems that you have, uh, had looked at in your particular fields, um, are they amenable or would they be, or would the problems be improved um, uh with the a- a- a- paring back of the criminal code or at least a thoughtful rethinking of, of, of what a penal code should contain.
Paul G. Cassell: I was just gonna say we haven't had many states, y'know, conduct like a, have a commission like some of the commissions Paul was just talking about to look at the whole code and see does it make sense, are their crimes that are no longer being enforced that don't fit contemporary values. But there has been more talk about doing that at the state level, just, what are all of our criminal statutes, do all of them deserve the sentences that they have. There are questions about whether something should be a crime and whether we all agree that it should be a crime. There are also, f- far broader questions about whether there's oversentencing, whether there may be mandatory minimums or just sentencing ranges that, that we think are excessive based on contemporary values, even if they may have seemed like a good idea at the, at the time.
And, and many states have, have rethought sentences and brought sentences down, and other cases, they've decided that no, we actually think that certain crimes are actually more serious than we thought than they were passed and they've increased sentences. But in general, we- we've seen efforts to rethink some of the really, uh, stringent sentences that were commonplace in the tough on crime era. Uh, and that's one kind of response to, to overcriminalization. It's kind of a broad term and covers a lot of ground. We, we haven't seen that at, at the, much of that at the federal level. We've seen some things like, like a, like you were describing, Erik, but I do think that in the next few years we'll see more and more states actually convening .. I don't think they'll call it overcriminalization commissions, but there'll be groups of policy makers, lawmakers thinking about the state criminal codes in a way that we didn't see in the past.
And we- we've also seen it from prosecutors. We've had prosecutors start to say there are just some crimes that I'm not gonna call a priority anymore. I just don't think that we need to be pursuing, uh, so vigorously felony convictions in, in, in areas that have previously been priorities.
erik luna: Right. And, and Paul, on- on this issue, and let me, please feel free to answer it however, however, uh, y- you feel best. Um, I've always thought that, um, a victim's perspective on criminalization is really useful in the sense, um, that if you can't find a discernible victim, it, uh, almost begs the question of whether that, that underlying, uh, conduct should be a crime. But I, I'd love to hear your thoughts, um, from, uh, as an, an expert in victims' rights.
Paul G. Cassell: Yeah, I, I share exactly the point that you're making. I mean, let's ... the elephant in the room whenever you talk about criminal justice reform is resources. We live in a world, as economists are always reminding us, of constrained choice. Money is limited and certainly governmental dollars are, are constrained. And so when you have X number of dollars spread over Y number of crimes, the bigger the number of crimes gets, the more resources are stretched. And they start to get stretched in ways that make victims feel like forgotten persons in the criminal justice system, because we have cases where y'know victims are not involved at all.
But this is a very broad topic, so I wan- wanna conclude my answer to the question with a, I suppose, a cross-reference here, a- as you mentioned, Erik, right at the start, we have 50-some-odd chapters in these volumes and there's a great chapter by, uh, Douglas question, overcriminalization and, it's uh, what's it, the philosophical underpinnings of why is it that society is, uh, perhaps classifying too many things of crime, as crimes. And then if you turn to the next chapter, uh, I think our caller mentioned it, perhaps the other listeners would be interested. There's a great chapter by Stephen Smith on overfederalization, which looks at the same problem, but in, uh, a particular criminal justice system, our federal criminal justice system. So, those two chapters, I think, would be, uh, of great interest to the caller and perhaps others who are listening, as well.
erik luna: Great. Thank you, Paul. Uh, Micah, do we have a- a- another caller?
micah wallen: Yes, we have another question lined up. Let's go to our next caller.
Sidney Powell: Hi. This is Sidney Powell, author of Licensed to Lie: Exposing Corruption in the Department of Justice. First, I wanna thank you all for your work. I'm looking forward to seeing the entire report and I will plan to tweet it to everyone on behalf of everyone on the phone call. And I would like to know to what extent you focused on wrongful prosecutions in the Department of Justice and any kind of feedback you've gotten on that.
erik luna: Very good question and, uh, I think we had, there were dabbled throughout, um, uh the, uh, the various chapters, 'cause there, of course, Brandon gave this brilliant chapter on wrongful convictions and there were separate chap- chapters that brought up issues like, uh, confessions and eye-witness identification, and issues of using informants. Um, but uh, let me ask, t- turn that to you, you, Brandon. Are, wh- Are there, um, issues you think with regards to wrongful convictions, um, uh that the federal government and, and the DOJ, um, should be thinking about, or, or even issues in its prior history?
brandon garrett: Well, I think the informant chapter, which I didn't write, but which is wonderful is really relevant, because, um, cooperating witnesses are important in lots and lots of different types of federal cases and they can provide crucial evidence. But there are always concerns about incentivized witnesses, uh, and making sure that it's accurate evidence.
Uh, in my chapter, I mentioned, uh, one of the really big forensic science problems that has come to relate in recent memory involved the federal government, and that was in the use of hair evidence where, uh, the FBI ended up, there were several DNA exonerations that came out of Washington DC where FBI agents had testified about hair evidence and said it was a match, detailed microscopic characteristics could only have come from the defendant. And there was even FBI guidance from a scientific report in the early '80s that said you can't, you can't reach any conclusions like that about hair. Y'know, hairs, you have to compare dozens of them because there's so much variation on someone's head, and we don't really know about the frequency of microscopic hair characteristics, there's no research on it. The best you can say is that hairs either couldn't have come from someone or they just kinda look similar. But they weren't just saying they could look similar, they were making these very, um, uh, these very aggressive statements about hair evidence and there's training that they should do that. And they were actually training state forensic examiners to say those types of things about hair evidence.
And so the FBI, after those exonerations coming out of Washington DC, decided that this really was quite serious, there had been an Inspector General's report in the, in the 1990s saying this was serious, but nothing had been done to tell defense lawyers at the time. You had people who were sentenced to death based on this type of hair testimony, some of them had already been executed, it was too late to reopen those cases, and so the FBI did an audit of a huge number of cases where trial transcripts could be located and found, uh, I think it was close to 2,000 cases, that more, more than 90% of the time, the analyst had given this type of very aggressive testimony not supported by science. There was an effort to, letters were sent from the Department of Justice to the state attorney generals saying that you should be looking at your cases, too, because y'know, our FBI folks were training state forensic analysts to say these things about hair and it wasn't appropriate. We need to reopen those cases, too. So, a number of states did audits of their old cases, although many states haven't.
So, that, that's an example of a, of a quite large-scale problem with inaccurate evidence where, where the FBI and the Department of Justice did, did to some things to try to own up to the problem and correct it. But once decades have passed, it's really hard to, to reopen old cases.
erik luna: Great, Brandon. Thank you. Alright, uh, Micah, do we ... I know we're running out of time, do we have a- a- another question?
micah wallen: Uh, there are no questions lined up at this point, so if, uh ...
erik luna: Well, let me, lemme, let me, let me ask one last question since, uh, and t- take the prerogative since, uh, it's a unique opportunity to have these two spectacular experts.
micah wallen: Alright.
erik luna: Uh, um, Paul and Brandon, if, if you were to, if you were given a magic wand and, uh, given one wish, change one thing in the criminal justice system with regards to the area that you are, uh, are concerned about and, it's not a wish for more wishes, and it's not an omnibus wish, uh, consistent with I, what I said earlier. But instead, a single issue that you think, um, should be, uh should be dealt with in, uh, victims' rights, Paul, or wrongful convictions, Brandon, what would it be?
Paul G. Cassell: So that one's, uh, an easy question for me, Erik, 'cause the magic wand I would have would be a federal constitutional amendment protecting crime victims' rights throughout the country. That's been the dream of the Crime Victims' Rights Movement now for more than 30 years, ever since it was first recommended by the President's taskforce on victims of crime. As everyone knows, our Constitution lays out a series of protections for criminal defendants, and that's as it should be, those are core values in our country.
But I think in 2018, we're now starting to see a collection of core values that crime victims deserve to have protected in the criminal justice process. And it's interesting, this, uh, y'know, it's always difficult to get the level of consensus that's required for a federal constitutional amendment, but it's useful to recall it was first, uh, endorsed by President Bill Clinton, a Democrat, and later endorsed by President George W. Bush, a Republican. So, perhaps this is, uh, one of those things where consensus may develop and we may see, uh, the opportunity in the near future for, uh, that one omnibus reform that at at single stroke would, I think, truly revolutionize the way crime victims are treated around the country and make sure that they're given the respect and dignity and attention in the criminal justice process that they deserve.
erik luna: Great. Thank you, Paul. Brandon, do you have a, some thoughts with my rather stilted question?
brandon garrett: That's a great question, I don't have a good answer. I mean, the equivalent of that, of what Paul just said, for, for innocence would be wh-, would be there should be a clear innocence protection under the, uh, Constitution. The Supreme Court has only sort of recognized in hypothetical form a right to assert actual innocence post-conviction. Um, however, even if the court did that, I just don't think it would have the same broad effects as the kind of victims' right amendment that Paul was describing in the victim rights area. Uh, the importance is not on, I mean, it's important to remedy wrongful convictions when they come to light years later, but many states have statutes that are going in the right direction on that. To protect accuracy in policing, you really need a principle that there needs to be an investment up front in using scientific and accurate methods in policing, and that's something that, uh, you need a different type of constitutional protection, but really you need best practices for policing.
So, some of those may come out of this American Law Institute work that I'm doing on policing. Um, but it's really an, an emphasis that I think really needs to come first and foremost before things go into court in the, in the policing agencies in this country.
erik luna: Fantastic. And I think we've reached the end of the hour. Um, and I'll turn it over to Micah, but I wanted to thank all of the callers and in particular, I wanted to thank, uh, Professor Paul Cassell and Professor Brandon Garrett for joining us today. Um, a real treat for all the listeners and for me, in particular.
micah wallen: Thank you, Erik, and on behalf of the Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. We also welcome listener feedback by email at email@example.com. Thank you all for joining us. We are adjourned.
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