A.J. Camacho:
Hello, debaters. I am A.J. Camacho and welcome to the very first installment of Blazer Briefs, where I go directly to the experts to ask them questions about the specific national topic. Now, today, I'm going to look at the policy debate topic for the 2020-21 season, and that is resolved to the United States federal government to enact substantial criminal justice reform in the United States in one or more of the following: forensic science, policing, sentencing.
Now that is about the most complex resolution I have ever
read for debate, but luckily, we have an expert with us. I'm speaking today
with Mr. Clark Neily. He is the vice-president of criminal justice at the
Libertarian think tank, the Cato Institute. So without further ado, Mr. Neily,
please tell us, what is your opinion of the resolution? Should the federal
government enact substantial criminal justice reform in the United States?
Clark Neily, Cato Institute:
Oh, absolutely should. There's no question that both at the state and the federal level, need substantial criminal justice reform. I've written a pretty significant piece in which I argued that American criminal justice is rotten to the core. I believe that very strongly. I think it perpetrates a staggering amount of injustice.
A more challenging question is what the federal government
can and should do to try to improve the overall criminal justice picture. As
you probably know, the federal prosecutions are really a drop in the bucket.
There's only about 80,000 federal prosecutions per year, compared with hundreds
of thousands or even millions of prosecutions in the states. There's about 10
million, 10 or 11 million arrests a year. Not all of those mature into a
full-blown prosecution, but you can see that the percentage of criminal
prosecutions that the federal government is involved in is a very small
percentage of the total.
A.J. Camacho:
That's awesome. So the federal government's role is
probably relatively minor. In other words, in regards to what the states should
actually take on. Is that what you're saying?
Clark Neily:
Empirically, that's true, although I think that the
symbolic stuff significance of how the federal government conducts itself in
this area is quite important. In other words, the way that the federal
government goes about enforcing federal criminal laws, prosecuting people,
sentencing people, even though from a material standpoint, it may represent
only a very small fraction of the criminal justice system. I think that the
significance of how the federal government goes about it, what kinds of
practices it uses, and the overall system that it embraces, matters a lot,
because I think that people look to the federal government to see what are best
practices in this area.
A.J. Camacho:
So I've got a few of these questions here that actually
come from the debate community. One of them is what is a piece of policy that
we should actually pass? So specifically at the federal level, in your mind,
what would be something that is a "substantial criminal justice
reform" that should be passed?
Clark Neily:
Well, probably the one that's getting the most attention right now is qualified immunity, which is a legal doctrine that the US Supreme Court invented out of whole cloth in the latter half of the 20th century, that makes it much more difficult than it should be to hold police and other government officials accountable for their misconduct. Effectively, what qualified immunity requires a would-be civil rights plaintiffs to do, is to identify an identical case in the jurisdiction where they're trying to sue, where a government official did the exact same thing to somebody else, and the judiciary has already said that that specific thing is impermissible.
If that case doesn't exist in your jurisdiction, then the police officer or other government official will be able to invoke qualified immunity as a defense. Your case will be dismissed, even if there's no question that your rights were violated. That's the really pernicious aspect of qualified immunity is that it primarily comes into play when there has been a rights violation, when a police officer has violated your rights.
Then qualified immunity is a defense that enables the
police officer to be absolved of liability, simply because that particular way
in which he violated your rights had not already occurred in that jurisdiction.
So I think that's probably the one that's on most people's minds, but there are
certainly others as well.
A.J. Camacho:
So in qualified immunity, how exact does that precedent
have to be? So you talked about how it's used, if there's not an existing
precedent for that particular situation of your rights being violated by an
officer. How exact does that precedent have to be for qualified immunity to be
forgone and the trials to continue?
Clark Neily:
The answer to that question is that nobody knows, and anybody who claims to know is showing you that they're ignorant because in fact, there's actually a, what we call a cert petition. That's the brief that you file with the US Supreme Court when you want them to review a decision by one of the lower courts of appeals. There's actually a pending cert petition before the Supreme Court right now that presents exactly that question, that says that there is so much variation among the lower courts in essentially dialing that in, that the Supreme Court really needs to take up the issue and clarify, because the Supreme Court really has spoken out of both sides of its mouth when it comes to how analogous the prior case has to be.
On the one hand, they've said it doesn't have to be identical. On the other hand, they're said it has to be pretty close. If you actually look at what they do, instead of what they say, in other words, look at the actual results in cases that the Supreme Court has heard, it's quite clear that that the Supreme Court requires a very, very high level of similarity between the two cases.
I'll just give you one example. There's actually a case that the Supreme Court dismissed or more precisely, denied, cert in last month where what happened was that a man was being pursued by the police, one of whom had a dog, a police dog. He stopped and he sat down and raised his hands in a position of surrender. The police officer then waited between five and 10 seconds and released the dog, which attacked the man, injured him severely and almost killed him.
When he sued, he was able to cite a two year old case
where the same court had held that when police were pursuing another suspect,
and he laid down on the ground with his hands at his sides, in a position of
surrender, that it was impermissible to then allow a dog to attack him. The
court, the Sixth Circuit Court of Appeals held that those two cases were not similar
enough because one man was lying on the ground with his arms at his side in a
position of surrender, and the other man was sitting up with his hands raised
in a position of surrender. That makes those two cases in sufficiently similar
and therefore qualified immunity applied and his case was thrown out.
A.J. Camacho:
Wow. Okay. So looking, I guess, in that vein, in your
opinion, does qualified immunity really apply to any of those three areas that
the resolution talks about, about forensic science, policing and sentencing?
Because to me, it doesn't quite sound like sentencing because it's not about
the punishment. The connection to policing is almost loose because it's not
about the action of policing. It's about the repercussions from it.
Clark Neily:
I think that's right to an extent, but actually I do think qualified immunity has an extremely significant impact on policing. It's one of the handful of areas where it actually is legitimate for the federal government to be involved in matters of local policing. In the wake of the Civil War in 1871, the US Supreme ... I'm sorry, the US Congress enacted a law that we refer to today as section 1983, because that's where it appears in the US code 42 USC section, 1983.
The language, the operative language of that statute, has remained unchanged for 150 years. Here's what it says. It says that any state actor, and that means anybody employed by a state or local government, any state actor shall be liable to the person injured for the deprivation of any right, of any right. That has tremendous significance for police interactions with citizens because if you believe that a police officer has violated your rights because they've used excessive force, maybe they've conducted a search without a warrant and without your consent, whatever it might be, this is the statute that enables you to vindicate your rights, to sue that police officer in federal court and seek not only monetary damages, which sometimes are very significant if there's been an injury, but also just an acknowledgement from the judiciary that your rights were violated, that what that police officer did was wrong.
Actually, the ability to bring a civil rights lawsuit against police and other government officials is really the only meaningful form of accountability available to citizens today because the other two avenues of accountability are a criminal prosecution of a police officer, which almost never happens, both because not every act of misconduct by a police officer is a crime, but even more importantly, because the decision whether to proceed with a criminal prosecution lies in the hands of a prosecutor, and they have a massive conflict of interest because they work with police all the time. They depend on police to bring them cases, and they depend on police to testify in their cases. It makes prosecutors extraordinarily reluctant to bring charges against police.
The other avenue of potential accountability is what we call internal accountability mechanisms like internal affairs or citizen review board. That doesn't work either. The reason is because in effect, you are asking the police to decide if the police did anything wrong and not surprisingly, they almost always say, no, everything they did was fine. So qualified immunity actually plays an extraordinarily important role because it's the primary obstacle that would prevent you as a citizen from vindicating your rights, by bringing a civil rights lawsuit against the government official, who you believe violated your rights.
It's very, very difficult to surmount the qualified
immunity hurdle. I would say that the judge, the judiciary and the legislature,
Congress and the Supreme Court, are roughly equally responsible for that. The
Supreme Court, because it invented out of whole cloth, a qualified immunity
defense that is nowhere in the text of the statute. But Congress is also
responsible because they've had all these years, for more than 50 years,
they've had the authority to change that, to change the law, to make clear that
there is no qualified immunity and they have failed to act as well.
A.J. Camacho:
In your experience, what are some of the most common
arguments against, just in general, substantial criminal justice reform at the
federal level? Not just specific arguments against qualified immunity that you
often come across, or some of the stronger ones, but also any arguments
against the general idea that the federal government should engage in that kind
of reform?
Clark Neily:
So I think there are three basic arguments here, and I'll try list them and then go through them quickly one by one. The first and most powerful one at the federal level is simply that the federal government should not have that much influence on matters of local law enforcement, local policing, local criminal justice, that the constitution deliberately confers upon the federal government a very limited amount of authority in all kinds of areas, including criminal justice and essentially the federal government should mind its own constitutional business.
So that's point one. Point two is that the total amount of crime that happens in this country is far greater than the number of prosecutions, for example. To some extent, that's true. To take just one example. We have one of the lowest homicide clearance rates in the developed world. A clearance rate refers to when the police make an arrest in connection with a particular crime. It doesn't necessarily mean they got the right person, but at least they have closed the case because they believe they found the person who committed the crime. Then they turn that person over to the prosecution.
As I said, America has an exceptionally low clearance rate for all crimes, for homicide, for other violent crimes, for property crimes. The clearance rate for homicides in America is about 61% and falling. The clearance rate for all violent crimes combined is less than 50%. The clearance rate for property crimes is less than 20%. So there is quite a bit of crime that goes on unsolved, and you could make the argument we need more policing rather than less. I can certainly get into that more later, because I think it's overly simplistic.
The third argument and the weakest of all the arguments is basically just, it depends upon a fundamental misconception of the way the system actually works. There are some people who believe that the criminal justice system actually works the way that it's described in the text of the constitution and mythologized to school children. Their argument is essentially, "Look, on paper, this is a pretty good system, and that's the system that we actually operate in real life. We really don't need to make any significant changes."
I would say that I would be more inclined to agree with that if it were true that our criminal justice system, the actual criminal justice system, closely resembled the one that is described in the text of the constitution. But in fact, that's not true. We actually have two criminal justice systems in this country. The first one is the one that is described in the text of the constitution and mythologized to school children. Then there's the second one that we actually operate in real life to maintain the world's highest incarceration rate.
Those are completely distinct systems. If your argument is
based on a an idealized version of the criminal justice system, then what
you're essentially doing is you're defending a straw man, because the system
that you're defending is actually quite defensible, but it's not the one that
we actually operate in real life.
A.J. Camacho:
In regards to this, and this is the last question, but it's a very broad one. So feel free to take as much time as you need. Of course, debaters will be forced to argue both sides of a topic, criminal justice, that is extremely complex. It's so complex that the people who wrote the resolution even chose to divide it up into different categories. What would you want the debaters to know before they get into this? This could be any sort of misconceptions that are very common, that they might even run into, that you could help them respond to, or even just ways that certain arguments, like you mentioned, whether there should be more or less policing, can be oversimplified in how there's actually a lot more nuances.
So what do you think debaters should know before
they get into these tournaments?
Clark Neily:
It's a great question. I appreciate the opportunity to touch on that. I would invoke a metaphor. I would say this. I would say virtually everybody in the criminal justice reform space treats the criminal justice system in the following way. Here's the metaphor. Imagine you're a doctor and someone comes into your office who's very sick and they have a number of symptoms and a number of problems.
One of the problems they have, let's say, is pneumonia. So you prescribe them some antibiotics and send them home in the hopes that they will recover. If it also turns out to be the case that that person has a very aggressive stage four cancer that is metastasizing throughout their body and threatens their very life, then even if you have prescribed a medicine that will take care of the pneumonia, you really haven't helped that person very much. That's what I see when it comes to criminal justice reform is that you have a system that is fundamentally pathological and broken. But a lot of people tend to focus on things that really don't go to the heart of the issue, the way you would want that doctor to focus more on the cancer than on the pneumonia.
I'm going to identify what I think of as the three primary pathologies in American criminal justice that don't receive sufficient attention. The first is that the system has really frittered away its moral and political legitimacy by criminalizing conduct that is not morally wrongful. A really simple example would be the possession of marijuana. A super majority of American citizens now believe that that should not be a crime and more than half the states have taken significant steps towards legalizing it. Yet it still remains a crime, a federal crime in the entire United States, even possession.
The cultivation of marijuana is a very serious federal crime. It's a felony to grow even a single marijuana plant, even in a state that has legalized it. If you have a commercial operation where you're growing, let's say, a thousand or more plants, that's a mandatory minimum of 10 years in federal prison. There is no moral justification for that law, for doing that much harm to a person who has not ... who's engaged in conduct that's not hurting anybody, that most people think should not even be a crime. That's just one example among many that of the way in which our criminal justice system ... and by the way, the term for this is over-criminalization.
Overcriminalization, the way I use the term, refers to the tendency or the practice of criminalizing conduct that is not morally wrongful, that does not threaten the very fabric of civil society, which is the only legitimate basis for criminalizing an activity because when you criminalize something, you authorize the government to use violence against people who engage in that conduct. So you need to be extraordinarily careful about what you criminalize, and we are extraordinarily cavalier about what we criminalize. So that's the first problem is unconstitutional overcriminalization that has destroyed the moral and political legitimacy of the criminal justice system.
The second major pathology that receives insufficient attention is that we've basically destroyed or undermined the constitutionally-prescribed mechanism for adjudicating criminal charges. So the first step in criminal justice is what do you criminalize? The second step is how do you decide whether somebody has in fact broken a criminal law? That's what I mean when I say adjudication.
The constitutionally prescribed mechanism for adjudicating criminal charges is of course the jury trial, but almost no cases go to juries anymore. That's because prosecutors have become extraordinarily adept at coercing people into waiving their right to a trial and simply pleading guilty. 95% of all criminal convictions today are obtained through guilty pleas. That's an extraordinarily suspicious number for the following simple reason. Think about what pressure you would have to bring to bear on a person to persuade them to give up the right to go to trial, where they have the possibility of an acquittal and freedom if the government fails to carry its burden of proving beyond a reasonable doubt, to the satisfaction of unanimous jury, that they committed the crime.
They are making the decision to give up this right to possible acquittal and freedom in exchange for what? The certainty of conviction and punishment by pleading guilty, by condemning themselves. There is no way that more than 90% of people who go through the system make that choice without being coerced into doing so, and they are being coerced into doing so. The system completely ignores the very significant role of coercion in the system. I've actually, I describe coercion as both the lifeblood and the motor oil of American criminal justice. It is literally what keeps the gears running.
Then the third and final point is what we've already
discussed, which is that all of this takes place in an atmosphere of near zero
accountability for members of law enforcement. For prosecutors, it's actually
zero accountability. They are completely unaccountable. For police, it's near
zero accountability. They're not entirely unaccountable the way the prosecutors
are, but they're basically unaccountable. When you have any conduct, when you
imbue a person with substantial amounts of power and discretion, but no
accountability, it's no mystery what's going to happen. It's going to be a
disaster. That's exactly what it has been in our system.
A.J. Camacho:
Clark Neily is the vice-president of criminal justice at
the Cato Institute, a libertarian think tank. Mr. Neily, thank you so much for
joining us today.
Clark Neily:
It's my pleasure. I really appreciate the opportunity. I wish you all the best of luck in your debates.
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