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Foreign Policy Analysis
Courts and Legislatures as Agents of Change

Courts and Legislatures as Agents of Change

– All right everyone, if
everyone could take their seats, I’m gonna introduce the third panel. So this is our third and final
panel of the conference today and I hope you all,
though, will stick around for the keynote conversation afterwards. But this panel is called courts and legislatures
as agents of change and moderating our panel is Rachel Barkow, who is the Segal Family Professor of Regulatory Law and Policy,
Vice Dean at the Law School, and the Faculty Director of the Center. She was previously a member of the United States Sentencing Commission and she has a recently released
book, Prisoner of Politics, which offers great concrete policy reforms for how we can improve the administration of criminal justice. And to her left is John Schoeffel. John is an attorney in the Special Litigation
and Training Units at the Legal Aid Society in New York City and, I just learned, an NYU Law grad, so we’re excited he’s back. And he’s been a leading figure in efforts to reform New York’s restrictive criminal discovery
rules for the past decade. And he was a principal author of the New York State Bar
Association Task Force on Criminal Discoveries
Report and Proposal. And he’ll have a lot
to say today, I think, about the recent reforms that
Governor Cuomo has signed. And to his left is Robert Pitman, he’s the United States District Judge for the Western District of Texas. And prior to his appointment, Judge Pitman served as
the United States Attorney for the Western District of Texas. And was also a United
States Magistrate Judge. He has also coauthored two books on the criminal justice system, including Confronting Underground Justice, which focuses on improving
the plea bargaining process. And the to his left is Dwayne Betts. Dwayne is a PHD in Law
candidate at Yale Law School, where he also received his JD. He was previously a Lyman Fellow, who worked in the New Haven
Public Defender’s Office. And prior to law school, was a Radcliffe Fellow at Harvard’s Radcliffe
Institute of Advanced Studies, as well as a Soros Justice Fellow. And last but not least is Carissa Hessick. She’s the Anne Shea Ransdell and William Garland Buck Ransdell, Jr. Distinguished Professor
of Law at UNC Law School, as well as the Associate
Dean of Faculty Development. And she writes on criminal
sentencing and criminal law. And she’s actually currently writing a book about prosecutors. – Excellent, thank you Courtney. So I know these post-lunch
panels are tough, but if you were disturbed by everything in the first two panels, we’re supposed to solve it and figure out what should be done outside
the prosecutor’s office. So our charge is to figure out what it is that judges and legislators could be doing to address this problem. So I thought I would start us off by asking kind of in
our dream environment, the legislative reforms that
you all might like to see. And just to kind of highlight some things from earlier panels
and discussions we had. So the way I would group it is, their problems with plea bargaining on the one hand is just the coercive, one-sided nature of it. And so reforms that could be done to try to level the playing field. And so I imagine, people have already said getting rid of mandatory minimums, thinking about that gap between what’s offered if you take a plea versus what’s threatened
if you go to trial. Maybe that’s bail reform
so that you’re not detained while you’re thinking about whether or not to take your plea or not. Things that would get rid of that. And then the other bucket of problems that people had mentioned were the informational
disadvantage that we see, where prosecutors just know
so much more about the case, what it’ll look like later, than defendants might know what that case looks like
from the prosecutor’s side. Which may suggest a
different set of reforms, like the ones we saw in New York. And so I guess what I thought might be fun is if you could just
recommend one legislative fix. What you think, and I know the answer you’re all gonna wanna say
is, we need all of them. And I think we do. But, if we were trying to prioritize where to really put
reform efforts and energy, I would love to hear from each of you about what you think would
be the most fruitful way to address these issues. So we’ll start at the end with Carissa and kind of work our way back down. – Well since you already
said mandatory minimums, I wanna do a slight spin on sort of the substance of criminal law answer. Because I think it’s
important to recognize that nowadays when
legislatures are writing laws, they know that plea
bargaining will happen. And so they write laws that
facilitate plea bargaining, right, that make it easier. And not just by providing
for mandatory minimums that provide leverage, but also providing for crimes
that are written more broadly than what they’d actually
like to see criminalized. So they won’t include the appropriate mens rea
standard, for example. Or the quantity of drugs
will be set a lot lower than what they think would be appropriate for those penalties. And it’s done quite explicitly sometimes, in the legislative history, to give prosecutors more
flexibility at plea bargaining. And I have to say, I don’t think that that’s
the legislature’s job, I think it’s the legislature’s job to try to figure out what should be legal, what should be illegal, and what are the appropriate penalties, if you prove that particular behavior. And then plea bargaining
should be very separate. – [Rachel] Excellent, Dwayne. – I think this is a tough question. – [Rachel] I had to get
you guys going after lunch. – I think one of the real challenges is that say you commit
three different crimes, say you commit three robberies, and even if the judge decides to give you seven years for each robbery, and you think that seven
years is okay for a robbery, you still end up having 21 years. So I would suggest that
the sentence that you serve is connected to the
highest sentence you get for whatever spade of
crimes you get charged with. And that way it would
just dramatically reduce the possibility of a prosecutor or a judge actually getting a 30 or 40 year sentence and then being able to
rationalize it by saying well you really only got
six years for that robbery and seven years for that robbery and three years for that gun. – [Rachel] Judge Pitman. – So I’m sitting here trying to think of how lawyers answer
questions in my court when I say one thing and
they say three things in one. I’m trying to think of a way to do that. But I will, if I’m restricted
to one, I’ll say this. And it’s been referred
to in a variety of ways in the past few panels and that is, the legislative fix I think that would be of greatest
import in this area would be the diversion
of significant resources from incarceration to
alternatives to incarceration. Because we can talk all day about the mechanics of plea bargaining and the history of plea
bargaining and everything else, but I’ll tell you, one of
the things that we came up with in our research for the latest book, Professor Bill Kelly and I
at the University of Texas, we did some qualitative research. We did a lot of interview research of prosecutors, defense lawyers, judges. And the thing that prosecutors
kept coming back with is we got one tool in our toolkit. We send people to jail or federal prison. And they don’t have… Their imagination extends to what’s in front of them and
what the resources are. And as long as they’re
restricted to one option, and that is, don’t prosecute
or send somebody to prison, especially in federal court,
the people you’re dealing with, there needs to be some consequence, then how can we expect that we’re gonna do anything differently
than we’ve been doing? So I think, to give
prosecutors other resources, other option, and that’s
gonna take vast resources and inevitably a diversion of resources from law enforcement and incarceration. And I think until that happens, we’re gonna be spinning our wheels. – [Rachel] John. – Well as the New York State
Practitioner on the panel, I can say we have just
taken some major strides that a lot of us have been trying to accomplish for 40 years. I’ve worked on discovery for 10 years, so we’re gonna be talking more about that. But we’ve just made some
enormous reforms on bail, speedy trial, and discovery. I think the other thing
that has to be looked at is just the sentence ranges are so colossal and
enormous in New York State. And this began, largely, in the 1990s. Governor Pataki was the
republican New York Governor, the Giuliani era. A typical sentence range
for a B felony in New York, someone has a prior
record, five to 25 years. Five to 25 years. And those were enacted, precisely I think, to coerce pleas and give prosecutors the means to coerce pleas. And I just think the sentence
ranges are far too high and we need to look more
realistically at that. – [Rachel] Okay, excellent. Since, John, you mentioned
the recent discovery and bail reforms and speedy
trial reforms here in New York. Maybe you could tell us, briefly, we don’t have to get all
the details about it, but what you think are the
kind of key aspects of them and how you think they’re gonna help with plea bargaining, in particular. – Well because it’s a system of pleas, any change like this is gonna have dramatic effects on pleas. I mean I think I have to
start by explaining to people how bad and outmoded New
York’s system is today, including where we’re
all sitting right now. It’s been said earlier that New York was one of the four states with the most restrictive
discovery laws in the country, alongside Louisiana, South
Carolina, and Wyoming. And the main problem has always been, the most importance evidence that the defense and defendant needs in order to both investigate cases and make informed decisions in the case, is witness statements, police reports, and who are the witnesses. And the problem with New York’s law today is prosecutors can withhold those things until the day of trial. The day of trial. You’ll get some video
recordings at some point, some scientific testing reports at some point before trial. Really there’s not even a deadline there that gives prosecutors a big motivation to go gather those things from the police. But a lot of prosecutors just will dump a ton of evidence
on you, a year into your case, and if you want to learn
who’s accusing you, you can decide to turn down
all the offers and go to trial. So right here, Manhattan,
District Attorney Cyrus Vance, has always had this policy that if you’re accused of a felony, he will not tell you who the accuser is. You are accused by a person
know to the grand jury or a person known to the
district attorney’s office. And so nothing makes sense. Talking to a client,
counseling a client today about a plea offer, what’s the evidence? They’re offering you 15. I mean, they’re offering
you five, you could get 15, what do you want to do? It’s like what’s the evidence? Sorry, I can’t tell you. Sometimes their case turns out
to be weaker than we thought, sometimes it turns out to be stronger. I can’t get it. And it just destroys
attorney-client relationships because the client has
no faith in the lawyer. And it’s especially problematic because today, the
Brooklyn DA, Eric Gonzalez, provides open discovery in most cases. So you could be on Rikers Island and your cellmate has
all the police reports, all the important information and you’re being prosecuted in Manhattan and you can’t even find out the accuser unless you choose to show up in court. They’ll give you a few police reports but you have no right, in recent years, you have no right to anything
until the day of trial. So that’s where we are today
and that had to be reformed because no one could… Plea bargaining became just a mathematical calculation of risk. Really, that’s all it came
down to in many, many cases where there was just
no way to investigate, no way to know what the
evidence against you. Just look at the sentence
range, here’s the offer, what do you want to do? So what happened? After 40 years, there
were bills every year, why didn’t anything pass? Why in New York, supposedly
a blue progressive state, did it take us 40 years? It took me 10 years, I
started working on this in December 2008, when the Legal
Aid Society wrote a report. Well everyone knows the answer. It’s that the republicans
had the state senate throughout those 40 years and they always listened to the District Attorneys Association. And we have a District Attorneys
Association in this state, to this day, that is
angry about these reforms, furious about these reforms. You can read their op-eds. Seven district attorneys
from New York City and the surrounding counties, just wrote and op-ed saying this is crazy. You can look through the New York State Bar Association Report, which was mentioned. Read the descanting opinions of the, it’s a statewide taskforce,
read the descanting opinion. It’s very interesting
if you’re an academic or someone just interested in this. The descanting opinion signed only by the three current ADAs. Everyone else who was a former ADA, including like people, 30 year DAs, Mark Dwyer and people like that, signed on to the majority report. It’s a very moderate report. But the descant by the DAs is furious. Witnesses will get killed, you can’t do this, you can’t do this. And they just had tremendous
sway with the legislature until this session, when the
democrats took over the senate. Why do they take that position? I think it’s just a status quo bias. I mean it’s hard to… They mean in genuinely, they’re
not bad people, necessarily, they’re not willing to accept that the rest of the country does this. And we’ve brought people, like the prosecutors this
morning on the other panels, who said, we’ve always done it this way, it works, we protect witnesses. We want this, it’s fair. We’ve had them in the room with the New York State
District Attorneys. Like the predecessor DA of Boston came and talked and said we
want to provide discovery. We don’t have an issue with witnesses, the defense usually agrees
if there’s a witness concern, or the judge… – [Rachel] John, can I
interject just to ask, since it’s changed, by the way, it’s gonna have a happy
ending, this part of the story. But the district attorney objections, how much of it do you think was about this concern
with witness protection? When you have prosecutors
from other states who have this saying, everything’s fine. And how much do you think it was actually about plea bargaining and the leverage that having this kind of discovery rule gives them, without, you know you get to
hold your cards til the trial, probably does help you with negotiations. If you have a sense of
what might have been. – I mean I have my sense
from talking to a lot of them and working on it for 10 years is that the real issue was the latter. That they like the system,
they like having the leverage, they can give it when they
want, to who they want. And it made their jobs
much easier to get pleas and it’s just very hard to engage in a major change like this. I think Texas and North Carolina, the prosecutors also
really resisted the change when it was imposed there. They tried to repeal it, there
was a lot of noncompliance. But they’ve come around
and now there was a report by, a survey by one of
the people on this panel, a professor, 90% of prosecutors in North Carolina support their open file. We had Texas prosecutors
writing to Governor Cuomo. The Chief of the Special
Victims Unit in Texas wrote to Governor Cuomo saying do this. It works for us, we can do it, don’t listen to your district attorneys. And I really should get to
what the law looks like now rather than filibuster here. Okay, so it worked,
after 40 years it worked. Governor Cuomo supported it, we had great allies in the legislature. There are two main reasons it worked. We had a community movement,
based on affected people, unions, Innocence Project, all
the defendant organizations. We had a huge movement, they
just went to the legislature and said we have to get this done. So like when the Hotel Trades
Union in New York State made this their top priority, I went to the person there and I said, Hotel Trades Union and discovery reform, it seems like such a wonky issue. He said, no, we interviewed our members, this was their number one issue. So first thing we had was a huge movement. And the second thing was the prosecutors just marginalized themselves from this debate by
taking extreme positions. Like if you at the New York
State Bar Association opinion, where they descanted, and you read the fine point of what they were willing
to accept, they said, we agree discovery has to be reformed, they always say we agree, but we will agree after plea
bargaining has concluded, 10 days before trial. That’s when the prosecutors
on that commission said discovery could happen. And if you look at the
other statewide task force that worked for a year,
the justice taskforce, they were more reasonable,
they said 30 days before trial. So what we got was 15 days
after first appearance, you have full open file discovery. It’s one of the most
comprehensive discovery statutes, it’s one of the most
comprehensive statutes you’ll ever read. I mean a lot of law professors
here, go look at this thing. It’s 25 pages, it’s so detailed. There are automatic
extensions if the prosecutor can’t get the information from the police. One of the biggest problems in discovery is how does the prosecutor get the information from the police, to get it to the defendant? Because one of the big
problems is, prosecutors say, well they didn’t give it to me. So we tried to do some things and the legislature did some
things in drafting the statute, like mandatory turnover of police files to the prosecutor and other things. But the big picture is, it’s
gonna happen much earlier, 15 or 45 days after the start of the case, and it has a pre-plea discovery provision. So if the prosecutor puts a deadline on accepting a plea to a crime,
not a low-level violation, if they put a deadline, they have to give you full
discovery seven days before. Seven days is the pragmatic sort of window to look at the discovery. What happens if they don’t do it? The defense can make a motion to the court and if the failure to provide discovery meaningfully affected
the defendant’s decision and the prosecutor won’t
revive the plea offer the defendant lost, the
presumptive sanction is to preclude the evidence
that wasn’t turned over. So that’s a pretty big incentive. So it’s gonna be a new world. And we also have bail
reform and other things. But that’s my summary. – [Rachel] Excellent, thank you. And I don’t know if
anyone wants to comment on your predictions of how this will help with plea bargaining or not, and if not. Okay. All right, so I guess maybe
I’ll shift a little bit, we can come back to
other legislative ideas. But maybe we should talk
some about the judiciary and things that it can do, particularly, given that
you said it took 40 years to get this done in a blue state and it required the
mobilization that you described, makes me more pessimistic that we’ll see tons of big legislative
changes to address this. Not completely, but somewhat. So if we think about what
judges could do, on their own, right now, with the inherent
judicial powers they have. Dwayne, I want to start with you, because you have experience working in the Connecticut system, which has been written about previously, as being one where judges are more actively involved in the process. And so it would just be
helpful to get a sense of how are they involved and
are they helping or harming? Because you, I’m sure, also
heard from earlier panelists there was a sense that if we had greater judicial involvement in the plea bargaining process, there’s no guarantee that they’ll be there to lower sentences, if
that’s what our concern is. If our concern is prosecutors
are using coercive powers to get sentences that are too lengthy, if judges get more involved, how do we know they won’t bring things up? Because there was some
comments from other panelists, that in their experience that it happened. So if you could just kind of shed light on what you know about
the process in Connecticut and if judges aren’t doing
that, why is it different there? – I’m sitting here listening
to the description of New York and I’m completely baffled that you could live in a country in which that was the process
and a country in which the process that happens in
Connecticut was going on. Like it just seems like living
in two different countries, living in two completely different worlds. And so first, I’m just
trying to rethink this and wonder if what I saw
happen in Connecticut actually really did happen. Because maybe it was all just a dream. The first point I’ll say though is one of the challenges, I think, is do people actually know what’s going on are people who work in
public defenders offices, people who work in prosecutors offices and it’s just so hard to imagine them to be able to do the work
to produce scholarship about the practice, when their job is to prevent people
from being incarcerated. Because when I started talking to people about what was going on in Connecticut, they just thought that, why
is it happening in that way and does it actually happen that way? So I’ll just give you a
quick overview of the process and then I’ll talk about
why I think it’s a benefit. And I’ll just make a couple concessions. But an overview of the process is they have this thing called
pretrial in Connecticut. And almost every case gets pre-tried. And when you go to pretrial,
you go into the room with… And also and I wonder if
I should even say this like if this is being recorded. And I got the fear that
like some of this stuff probably shouldn’t be happening, but it’s been written about
by people other than me, so I’ll just describe it
and I’ll leave it at that. So every time that your client has trial, before you go into court, before your client
appears before the judge, you go into pretrial conference with the judge and with the prosecutor. So the prosecutor will
have a slate of cases. They might have seven cases,
they might have 10 cases. And so you’re in the room with the prosecutor
with all of their files, and then every defense attorney that has a case that
day is in the same room. Sometimes the private defense counsel isn’t in the room for the
negotiations that take place. But I was never there on an occasion where the public defender would be asked to leave the room while the
negotiations would take place. And the negotiations were
really, first it was open file, so we would know everything
that the prosecutor had or we would be taken an occasion to find out when they would give us everything that they had. And then we would negotiate and it would be a process
that didn’t happen in one day. Frequently, on the the
first day you had an offer, but there was no expectation that you would take the
offer on the first day. Because you always had to go and return that offer to the client, and then you would always
come back with a counter-offer or any kind of mitigating evidence that suggested that
something else should happen. Now a couple points about
coercion is, of course, the main fear is that if the judge says well I’ll give you this
offer of five years and you don’t accept it and then you get found guilty at trial you get 10 years or 15 years. But actually in Connecticut
what happens is, it depends on what kind of case it is. Because some cases originate
in a court of the chief judge, but if it’s a case that doesn’t originate in the court of the chief judge, then you get your first bite at the apple with that judge and with the prosecutor. And then if there’s no settlement, if you don’t come to a settlement before you get put on the trial list, you go to the chief judge and basically the same
thing happens again. Now the judges are sort of reluctant to go under what another judge did, but still what happens as
you get to present your case and present the arguments
and think about the evidence in the context of a trial
with two different judges. And then if you end up going to trial, it should go to another judge that’s actually in another court, so it’s even less likely
that it’ll be any coercion that happens because you didn’t take the offer the first time. And I would say, I worked on cases and I would have to tell
people what they were facing and they would tell me
what they would want the outcome to be or what is
an amenable outcome to them. And sometimes we argued out… I’ll just talk about one case, because I think this is
an example of two things. First, I always thought about plea bargain as only consistent in those cases where my clients or myself,
because we always say my client, like it can’t be us, that’s like guilty. I said guilty one time,
that shit hurt my heart. It was not a joke. That was a joke, really, nobody laughed. It was a joke that didn’t land at all. But no, so we always say my client as if we can’t be the client. As if we can’t be in a situation and say like, I plead guilty. But I had one case in particular
that I’ll just talk about because I think it illustrates. First, it’s not empirical,
this is just my own experience and it’s really hard to
get empirical data on this, because you can’t
fundamentally get in the room if you aren’t representing somebody. And in places like Connecticut, even though they’re really open, like the prosecutors have
been really reluctant to open up their files or
talk about this process. And again, a lot of it
isn’t written down anyway. So you get the offer, but at least you know you got the offer, because the judge is in the
room when you get the offer. And that judge might go under the offer that the prosecutor makes or that judge might reject the offer. But at least every party is
aware of what’s happening and because there’s other
defense attorneys in the room, I kind of believed it set some
standard of what justice is at least supposed to look
like in that courtroom, as opposed to having
widely disparate outcomes based on who your attorney might be, based on what kind of evidence
that you’re able to bring that they believe because you said it and don’t believe because
somebody else said it. And it deals with all of this sort of information asymmetries
that we discussed earlier. But I’ll just use one case
because we’re in New York and I think it’s descriptive
of like what can happen. So I had a client, client
got locked up when he was 16, 1996, and I got locked up
when I was 16, in 1996. So I was sort of particularly like feeling like this
kid could’ve been me. And he got locked up in New York so he got YO the first time. And he’s living in Connecticut, he applies for a gun license
because he was a security guard and he wanted to be a
security guard at a bank. So he applies for a gun license. Well as soon as he applies,
it triggers a background check and they lock him up for possession of a firearm
as a convicted felon. Because I guess signing a piece of paper suggested that he would, at some point, possess this firearm for purposes
of getting a gun license. Now that would’ve been a different argument to have at trial, but we didn’t even get to that point, because he was saying wait a
minute, I don’t have a felony. And so I went into the negotiations with the prosecutor saying
that this is a mistake, my client doesn’t have a felony. And then the prosecutor said,
that’s what they all say. And at the next meeting… And I was offended because I was there. So at the next meeting,
I had called his PO, I mean not his PO, I
called his attorney here, and I called the probation office here and they were saying first in 1996, we don’t have that
computer system anymore, but I could pull it up and I
could tell you what it says, like I can’t print anything out off of it. And she was like, yes, he had YO and so he doesn’t have a felony. So come back the next time
and the prosecutor says, listen, they all say that
and we have this FBI report and I think that the FBI’s
better at doing their job that the State of New York. No offense to the State of New York. And so my client swears that
he did not have a felony. So finally I actually called and talked to the lawyer
who represented him and the lawyer that
represented him says yes, we pled him out, he got YO,
it was a drug possession case and we looked at his record
and he had other charges later, but they were all misdemeanors,
they weren’t felonies. So I’m just not understanding what is going on with the world. Because the prosecutor’s
saying one thing is true, and I’ve had three
occasions to talk to him and he’s saying one thing is true and I’m saying something else is true. And a judge is saying
to the judge’s credit, well Attorney Betts, I didn’t even have a law
license at that time, so it made me feel good that she kept calling me Attorney Betts. But she was saying, Attorney Betts, you really just, I need something. So I finally said, you know what, I’m gonna pay for a background check. And I paid for a background check. And what happened was
he had the same attorney that represented him in both cases. But he got the first YO case and then he violated like
two or three weeks later. Same attorney they reinstated,
but they didn’t reinstate YO, they reinstated the same penalty, but for a felony this time. And they misspelled his name. So everywhere in the State of New York, it comes up that he doesn’t
have a felony record, because his name is misspelled and the feds were able to catch this. So now at this point, my client is sort of
basically factually guilty. And now I’m sort of pissed, because I had all of this
faith that he was innocent and I was ready to go to bat forever. But the next time I go,
we talk to the prosecutor and I say look, I made a mistake and I explained what happened and I explained to the judge what happened and the case ends up getting null process. Now I think that sort
of this is a reflection of maybe the best possible
outcome in a system like that. And I had several other
outcomes that were similar, but I think that’s the
case because the prosecutor and the judge had multiple
opportunities to think, not just about the
underlying facts of the case, but the person that was
presented before them. And even in a situation
where it turned out that I was wrong and my client was wrong, he actually did have a felony record, the prosecutor was able to say, this is the rare incident like this that I think this case
shouldn’t be pursued and it got null processed. So that’s Connecticut. I found out that I think it’s really rare, one person wrote about it
in the past, Milton Heumann and when it started in 1970s, they were sort of just doing… And it exists in a different way in every geographical
district in Connecticut, geographical area. So it’s not as if it’s a policy
that exists in the same way. Some judges just talk
to the defense attorney and the prosecutor for that single client. In New Haven, it happens to
be multiple attorneys in there and I think that has a benefit that’s important and significant, that doesn’t happen in other places. But I think that, I mean for me, if you’re gonna have plea bargain, and this is a system
that affords all parties to feel like they’re heard and to have mitigation take a real place in the plea bargain negotiations. And also, it decreases the
opportunities for prosecutors to coerce a guilty plea, because I always know that
I could go to another judge or I always know that the
judge is able to hear it if it’s a disingenuous
charge for a long sentence. And you could just demand
a trial at that point. – [Rachel] Can I just, a
quick follow-up on that and then I want to hear from the others. But in terms of the judicial role in that. So what I heard was, it’s good because defense lawyers are around each other
and that helps spread some of the information
of going rates for things and the multiple bites at the apple, where you come in more than once allows you to do some investigation and have the prosecutor think about what the right thing is
as well as the defense. But if we were to just kind of single out what the judge is adding to that process and being in front of the judge. Is it just that they’re kind of a neutral third-party overseer, that they do step in sometimes, when the prosecutor’s office is harsh? – The judge, so in this case, it was a different kind of case because we really weren’t
talking about sentencing, we were just talking about facts. But sometimes you are
talking about the sentence and the judge is like, the prosecutor offers this as a deal, five years, suspended after two. And the judge says I’ll offer five years, suspended after six months. And then it’s just bargaining, like can I get a right
to argue at sentencing for a lower sentence. And the judge could say, yeah, I’ll give you a six month
floor with a right to argue. And the judge will say straight up, I control the sentence, to a degree, but I don’t control the charges. And so the prosecutor doesn’t
lose all of that power, the prosecutor still controls the charges, but the judge controls the sentence. And I mean fundamentally I just felt like I had a lot of cases that
had they been in New York, just listening to what I’ve just heard, including that case, would’ve been disposed of
probably far more harshly. But I’ve had other cases that, it’s just unbelievable the
kind of outcomes that we got. And I’ve also been in a room to recognize, what I feel like, is real injustice. When I would hear this
outcome for this case, this outcome for this case,
this outcome for this case, and then for my case, the
plea offer would be something that was significantly worse. And I would know that it
was politically motivated. Like I would know that it would be above the kind of category of case it was and not the actual conduct that happened. But if I wasn’t in the room, listening to those negotiations
with other attorneys, I would’ve kind of been blinded. I would’ve known from peers,
what they were offered but I wouldn’t have been able to hear that a judge accepted
in those kind of cases. So I think the judge does, they just speak to what
they believe on a sentence. But also they speak to what
they believe on the conduct. And sometimes when they talk about what they feel about the conduct, that’s just as significant as what they talk about for the sentence, because then when you
prep and you come back, you could come back to
address those concerns of the judge and of the prosecutor. And again, just assuming
that, worst case scenario, we have to accept the plea offer, how do I get you the
best offer as possible? – Okay, excellent, thank you. And I guess one thing,
just a footnote to that, is it does seem like judicial discretion is important for that, so I guess that ties in
with what people were saying about mandatory minimums and the like, having a judge with more flexibility probably gives him a bigger role. All right so Carissa,
maybe you could give us some insight into what judges could do or what a different court system too, based on what you’ve learned from the Utah experience
and their justice courts. My understanding, lowest
level misdemeanors, so potentially a different pool of cases, but any larger lessons you draw
from what’s happening there and what a different plea
bargaining world could look like? – Yeah, so I think one of the great things about having a conference like this, where you bring together people who’ve practiced in different
jurisdictions, in Connecticut, folks from the federal
system, folks from New York, folks from elsewhere, is you can see that not everything happens the same way in different places. And so I was really shocked
when I got out of law school. We learn in law school there are three different
levels of courts. There’s sort of a trial court, the intermediate appellate court, and then the supreme court. I mean that’s not true, there
are those levels of courts, but there are lots of other courts too. There are administrative courts,
there are traffic courts. And a number of states have
things called justice courts or justice of the peace courts. I think they have them
here in New York as well. And the thought is that
there are an awful lot of low-level cases that we
need to process quickly. And so we have these less formal courts and we send a lot of cases there. And in Utah, they send their class B and class C misdemeanors to justice court. And then the class A misdemeanors and the class A felonies
they go to district court, the regular trial level court. Now when I went to justice court, I went to Salt Lake City, a while ago now, to shadow some of the
public defenders there and to interview them
about the justice courts. And it was interesting
because in Salt Lake City, the justice courts, they
look like a regular court. It’s a courtroom, the public defenders have a contract with
the county and the city, where they represent all
the indigent defendants who come through there. The judges who sit on
that court are lawyers. When you go out into the
rural counties in Utah, it does not look the same way. It’s far less formal, cases
are routinely dealt with without anyone who is indigent
being provided counsel, the judges are sometimes not lawyers. So because they have this
informal court system, the state has to, as a
matter of due process, have something else that they can do to make sure that the
people who go through that court system have
sort of due process of law. And the way they’ve dealt with it in Utah is they’ve said, you
can get a trial de novo in the trial court, in
the district level court. But we’re gonna process
lots and lots of cases in the justice court first,
in this informal court. But if you lose, it’s not appeal, you just get a brand
new trial on the merits, there’s no deference to whatever happened in the justice court. They don’t even have a
transcript in the justice court it just goes up and you get a
new prosecutor and a new judge and they just deal with the
case sort of on its merits. And I should add, by the way, they see a crazy number
of cases in justice court. Justice court has almost
twice as many cases in a year as does the regular district court. Okay, so because you get a trial de novo in the district court if you lose in justice court, that means that the
plea bargaining dynamic is really different. And I interviewed these young lawyers, these young public defenders, who as a matter of office policy in the Salt Lake Defenders Office, they cycle in and out of justice
court and district court. So they’ll practice in both courts, they’ll cycle every few months. And they perceived their role very differently in justice court. And they said, for example, it was not problem for them to demand discovery
and wait for discovery. The prosecutor couldn’t say we haven’t heard back from
the complaining witness, but this offer is only
open for a limited time. They’d say, okay, so
then we’ll go to trial. Or I’m not gonna advise my client to make a decision in this case until we’ve heard from
the complaining witness. A lot of these sort of lower-level cases are somebody went to the police saying that their neighbor or their friend or whomever, had done something wrong. And so hearing from
the complaining witness was really, really important. They could file motions in district court without worrying about
the prosecutor saying well if you file this motion,
the deal is off the table. And in fact, if the justice court judge decided the motion wasn’t appropriate, they’d say that’s fine, we’ll go ahead, you’re not gonna suppress
this evidence, that’s fine, we’ll try the case and then we’ll go up and we’ll take another
trial in district court and get a second bite at the apple with the suppression motion. And the young lawyers,
they said basically, their mantra was why plead
a case that you could try? And they would routinely
advise their clients that they should only take a plea bargain if they genuinely wanted a plea bargain. And then they said
sometimes they had clients who should really be
taking a plea bargain, but the client didn’t want to. And they’d use the fact
that they could get a trial de novo in this
relationship with the client. They’d say look, we can take that approach in this case if you want to, it’s not what I would advise you to do, but if we try it your
way and it doesn’t work, when we go to district court,
how about we try it my way? And the client would say,
that sounds like a great idea. So I have these meetings with these folks, I shadow them for justice court. I’m thinking to myself, I’ve
found sort of the ideal court. It sounds like exactly what
it’s supposed to be like. Most cases are going to trial,
it’s only if plea bargaining, the guilty plea genuinely seems like the best option that
folks are gonna take it. So I asked to see some
statistics from the court and I was shocked because
the justice court statistics, the cases where the, why plead
a case that you could try, the trial rate was 2.5%. It was really low. So then I asked to see the
statistics from district court and the trial rate for
class A misdemeanors was less than 1% and the trial
rate for felonies was 1%. So they did have a much higher trial rate, it’s just that the trial
rate was still really low. But I’ll tell you something else that I found really interesting. The dismissal rate was super different. Now I don’t want to overstate this because the dismissal rate packed in a lot of different things, including somebody had
unrelated felony charges pending and as part of a negotiated
disposition for those cases, they deal with these other
charges in justice court that had come out when they
were out on bail or something. But, the dismissal rate for felony cases in
district court was 25%, for class A felonies in
district court was 35%, and in justice court it was 45%. And these are just the statistics from the public defenders offices. So these are literally the same lawyers, they’re dealing with the
same prosecutors offices, and, they aren’t dealing
with the same judges, because the judges in district court are different than the
judges in justice court. But it suggested to me
that this difference, taking away the pressure
of plea bargaining, did result in more trials. But it also resulted in
a number of prosecutors deciding not to pursue
charges in that case. But in some ways, the
traditional sort of model that we see in regular trial courts, the pressure is really on the defense to try to settle the case. But if the prosecutors
know, and they did know, because these young public
defenders liked to tell them, I’m just gonna tell my client
we should take this to trial. A lot of times, the response to that was to dismiss the charges, rather than the prosecutor
proceeding to trial as well. So I’ll just say really quickly, my sort of takeaway from this, was I was surprised that the
trial rate wasn’t higher. And that suggests to me that there’s something going on here, when it comes to plea bargaining, that’s more than just sort of
the legal regime that we have. It’s also maybe sort of an attitude or a cultural regime as well, that cases just really
aren’t gonna go to trial, most of them aren’t gonna go to trial. – [Rachel] Carissa, can I
just ask you two questions? In terms of the ability to
threaten to go to trial, I’m assuming these people, so they’re not detained
while they’re making… I guess there’s two things I
just want to ask you about. One is, is this a group of
people who are not detained? And so the decision whether to go to trial and the delay associated with it is not pressuring the decision? And if that’s not true, I would love to know
why they feel different than people who are
detained in other systems. And then the other is, is it that the differential
sentence that they would face, should they go to trial in district court? Isn’t that much bigger? Because I’m just thinking of
the pressure points elsewhere and how much that’s mattering in this court that you’re studying. So the detention issue
pretrial and then also just what is it that they’re risking
if they don’t take the plea? Is it just the sentence
isn’t gonna go up much, so they really are freely and
voluntarily making a choice? – Yeah, that’s a great question. So the vast majority of the
defendants were not detained. There were some exceptions. Folks sometimes were being
detained on felony charges and then they had justice
court charges as well. But the vast majority of
people weren’t being detained. We did see them running
into sort of the processes, the punishment type problems though, where they had folks who
had to keep reappearing while the case was being continued again and again and again. But the pretrial detention
was very different. Utah also is not, none of these people were facing mandatory minimums. These are relatively
low-level misdemeanors and the sentencing system there isn’t particularly structured, so judges have a lot of discretion when it comes to sentencing. And I’ll add to that, sort of ironically, the public defenders told me that sometimes their clients would fare much better in district court, when it came to sentencing, because the judges in justice court only saw B and C level misdemeanors. Which you could have some of those cases that seem pretty serious and so they might get sort
of the maximum sentence that they were permitted to get. But then they’d get tried
again in district court and the district court
judges are seeing felonies, and so for them, even a serious-looking or an aggravated-looking B misdemeanor, just didn’t seem like that big of a deal, so they weren’t inclined to give sort of towards the high
end of the statutory range. – [Rachel] Excellent, thank you. So Judge Pitman, now we’re gonna get to the judicial perspective on all this. And I guess there’s kind of two things I’d like to hear your comments on. So one is, in your book,
you have some thoughts of what we could do better
in the plea bargaining realm. And some of it has some hints to things that Dwayne was talking about, the kind of neutral arbitrator type of role that could be served. And then you also suggest
helping prosecutors with more information, as
their making their decision. So maybe having that expert advisory body that could help them decide, should a case be diverted or not. Ways to improve their decision making. So I guess I’d just like to hear you elaborate on those ideas and if, based on what you’ve heard
from other panelists, if it changes your perspective
or enhances your view that these will be good or if you think there’s ways in which you
think they would be limited. – Sure, sure. And actually you must’ve
read both of the books, that’s amazing. I didn’t know anybody bought them. (audience laughs) I don’t think… You can get it on Kindle now, I think. – [Rachel] Good for traveling. – Yeah, exactly. So Bill Kelly, professor at UT, he’s done a lot of
background work in this. So the environment we were looking at, and we’ve been great friends forever, and so being the U.S. Attorney in what is most years, the busiest district
in the federal system, it just occurred to us in looking sort of in the environment of plea
negotiations and plea bargaining, that I was very aware, being the sort of chief
federal prosecutor, processing literally thousands and thousands of cases a year, the vast majority of
them were being resolved, as we talked about, by
means of a plea agreement. And that was a very, it was
really an invisible system. It was completely, there was
nothing transparent about it. And so I thought, some day
we might be in a situation where we don’t have great confidence in those who have these positions, and so what will we do then? How do we look behind the curtain? And so we’ve kind of spent
some time thinking about… The first book was if we could
reimagine this whole thing and it was really a
utopian sort of exercise. And that’s what the
professor was talking about, where we just kind of imagined this system that we completely reworked. And it was completely, sort of again, utopian and unworkable, but just from a career prosecutor and a criminologist saying, what would we do if we
knew everything we know now and we didn’t have the
political constraints, what would we do? And that’s where we came
up with the idea of, why don’t we, it’s all
amount of funneling right? The criminal justice system
is an exercise in funneling. It’s what I talked about before and what Professor Crespo
said earlier and that is, we have a well-oiled prosecution
and conviction machine, is what we’ve created. But that has not be successful and we defined the problem
as being recidivism. How do you measure your success? We’re the only really industry,
if you can call it that, where no one really measures our success and we don’t even know
what the measure is. And so we just conceive this idea that how about a legitimate
measure would be recidivism. They don’t do it again. You can argue about whether or
not it’s just incapacitation or retributivis motivations and all. And there’s the big strain
of that in our culture. But we said, what works, what keeps people from doing this again? And what we’re doing doesn’t
work, by any measure. And so what would we do? We would try to do a little better in identifying what the problems were. Why are people here? And in cases where we know that incarceration isn’t
gonna improve things for them or for anyone else, then we conceded this idea of having people who do
know things about that. Mental health professionals,
addiction experts, and putting resources, as I
said before, into those things and building on the experience of drug courts and diversion courts that, where we’re starting to
get some generalizable data about what works and what doesn’t work. The second piece of it is though, is we wanted to attack this idea of what do you do about this invisible system of everything being resolved
by means of plea agreements, where the public has no
real idea what’s going on? You talk on the civil
side about the demise, everybody laments the demise
of the civil trial, jury trial and I think the same is
true on the criminal side. I mean there is great utility to having some subset of the community, on a regular basis, saying
here’s what’s important to us. And they can do it a lot of ways. I mean you have juries all the time that engage in the opportunity to say, no, we don’t wanna do that. And I think when prosecutors don’t have that kind of experience in having to put things in
front of a jury routinely, to see what the market
is for certain things, then we all lose for that. So what do we do with this then? We said, okay, in the civil
system, what they’ve done, as a federal district judge, most cases, civil cases, also settle out of court. And most of those do
it with the assistance of some kind of alternative
dispute resolution, a mediator. And so we kind of imagined
on the back of a napkin all of these things that we’ve
been talking about all day. And that is we have this sort of a set of assumptions about the
plea negotiation world. And those assumptions are that we have great faith
in the adversarial system, that we’ve got prosecutors
who are acting in good faith, not overreaching, all these
things, which usually is true. We have defense lawyers who are competent and diligent and not overworked. I don’t know whether
that’s usually true or not. But we have this set of assumptions and I think we have reason now, to question all those assumptions. And we said, well what’s the fix there? And also the thing that
we’ve talked about all day is the context of these negotiations. And what the public, I think,
doesn’t really recognize is that most of these, in my experience as a career prosecutor, most of these negotiations take place in a hallway outside of a courtroom or on a quick phone call. And they happen, sometimes,
in certain circumstances where we’ve all talked about before, where there’s incomplete
information, but because again, in the federal system, there’s
a premium on coming in early. And if you got 32 defendant case, we only need the first
four or five of you. And so there is a premium in getting in. So they’re all kind institutional sort of things going on that we
ought to be worried about. The answer to the question then, is we came up with this idea, and again, it’s a bit utopian, because
it would require resources. But we thought, you know what, why don’t we imagine this
role called a plea mediator. And it’s maybe not unlike something like the judges in these justice courts. See the problem with
getting judges involved, setting aside the ethical concerns, which I think are significant, procedurally, we can’t
do it as federal judges, but also the assumption
is we’re doing all of this because we’ve got to
dispose of these cases by means of pleas because
we would be overwhelmed. Well getting judges
involved in plea negotiation effectively doubles the number
of judges touching a case and that doesn’t solve our problem. We have, in Philadelphia, Judge Peters, I’m so glad you’re here, because any time there’s
a circuit judge here I get to talk about how
hard district judges work. (audience laughs) In Philadelphia, there are
19 sitting federal judges, 12 active senior judges
who are taking cases. Austin is about half the
size of Philadelphia, we have two district
judges and one senior judge who doesn’t take any new cases. We can’t be involved in plea negotiation, even if we wanted to and the rules let us. We’ve got to have somebody. And so we’d looked at this
role called a plea mediator that would effectively be this third party to sit there and look at, be the representative of the
conscience of the community and of the court and to
look at these negotiations and say, okay, this is a little
outside of the mainstream. This offer or this prosecutor, over time, tends to maybe overreach, this defense lawyer isn’t
looking closely at the file. We’ve talked about that sort of thing. So having somebody who is
experienced and knowledgeable look at these things and
engage in both parties and saying, you know what,
are you each doing your job in ways that we all should
feel comfortable about it? And so we did this
little thought experiment about what that would look like. And it’s one of many ideas,
but something we thought might at least generate conversation. – So I’m wondering, in
light of what you said about the resource constraints, which I think is a big part
of what we’ve heard all day, some of these solutions
require more resources, it doesn’t seem like there’s
more resources to give and I’m wondering if we could put some of the appellate judges to work. How much of a difference
do you think it would make if we got rid of waivers and plea agreements to file appeals? Because you know another thing that happens in these negotiations is it’s very common, particularly
in the federal system, but in state systems as well, for the agreement to
state you waive your right to raise any constitutional
arguments, other arguments. And you know one of the things we heard from earlier panels today is that stunts the growth of the law and it also makes it so we don’t see as many of the errors in the system. How much would that help,
if some of the issues then were dealt with by appellate
courts, who then would, the decisions then would have an influence on what takes place below? I don’t know if you have
thoughts Judge Pitman. – I think it would help and I
think it’s yet another thing that we should talk
occasionally about fairness too. I mean it used to be the case that we would require people
to waive the right to appeal claims of ineffective
assistance of counsel. I mean wrap your head around that. But we did it and we did
it over and over again and I think now we need
to step back and say, we’ve got resources in the
U.S. Attorney’s Office, we’ve got an appellate
section, and those are places, to your point, where we actually need to litigate some of these things. And we need the guidance
of our wiser bosses to say, give them an opportunity
to take these things up and come back down. To your point, absolutely, I’m not a big fan of waivers at all. – No, me neither. That’s why I asked the question. It’s full disclosure, that’s the one privilege
you get as the moderator. So I know I’m gonna open it up to questions from the audience too. But I guess one last question
that I want to think about for all of you and any
of you can interject. And John, I know you’ve thought about this in the context of some judges do do more within their own courtrooms in ways that don’t necessarily
increase their workload. I mean I guess it might. So I’m thinking of standing orders where the judge insists that
discovery be turned over. Like Judge Emmet Sullivan
in the D.C. District Court has these other judges do that. So it’s a way, if you
don’t have a new state law that’s mandating disclosure,
judges could insist, in their courtroom, that
certain things be turned over. And then I’m thinking of examples, again might not increase
workload, and Dwayne, you mentioned something like this, like the offer comes in
or you say maybe go back to your supervisor and
just make sure that’s okay. The kind of more subtle pressure that’s not necessarily making
the judge work any harder, but is at least indicating when an offer maybe goes too far, maybe rethink
that one, come back again. Maybe they’ll come back and
they’ll do the same thing, but the signaling effect the judge gives. I’m just curious to get
any of your reactions on how effective those kinds
of techniques by judges are and whether they’re realistic, or in fact, they do create, the
dockets are just oppressive that it’s hard for judges to interject. – So I think it is very realistic. It was mentioned earlier today that New York State in 2018 adopted a rule that requires every judge
at the first appearance in every criminal case
to issue a Brady order. The idea here was to educate
lawyers on both sides and judges about what is Brady. And the second reason behind this is to give prosecutors an incentive because if they willfully violate it then they’re willfully
violating a court order and subjecting themselves
to criminal contempt. So Judge Sullivan, the Ted
Stevens case, issued such orders. Well there’s a lot of
academics in this audience who talk about court ordered proposals. This is a pretty interesting one to study, because it’s very rare
that you have a whole state adopting a new rule that
applies in every single case. Every judge must issue this
at the first appearance. So there’s a lot of potential here for both education and providing an incentive for prosecutors. Judges, the problem with its
rollout in the first year is there hasn’t been buy-in by judges. It’s like most of them, we did a survey of 160 people responded, 4/5 of them said this thing
has had no effect at all, 1/5 have said it has a little effect, nobody said it had more
than a little effect. Well what’s the problem? Part of the problem is the
way the order is written. On the timing of disclosures,
Brady Law on timing is much worse than many people believe. But it talks about five
different standards, meet the federal, meet
the state constitution, meet the statute, if it’s exculpatory, do it as soon as you can. But then there’s this sentence, any Brady disclosure 30 days before trial is presumptively timely. Well hardly any cases get
to 30 days before trial. So the drafting of this order is the first big problem,
why it’s had little effect. The second is judges just
haven’t bought into it in a way where they… The main problem with Brady is how does the prosecutor
get the information, the police files? So one of the things in this order was it requires prosecutor to obtain a complete copy of the police file. Because that’s where most
of the Brady violations are, that the Innocence Project and others finds wrongful convictions. Do the police give the
prosecutor everything? So this order requires prosecutors to confer with all
officers acting the case and to review the file. So we go to the judges and
the judge asks the prosecutor if they’ve done that yet and the standard response for
almost, in the survey was, judges just say prosecutor, I remind you of your Brady obligations. And they have refused to actually actively play a role in enforcing it. You can ask about why, but I think they have the time to do it. Because in New York, judges do play a role in plea
bargaining, they do routinely. Like if you’re taking a
plea to the top charge, which actually happens fairly often because if someone has a criminal record, they’re not getting a new criminal record. Then the judge can just cut the prosecutor out of the whole process and negotiate the sentence
with the defense lawyer. So judges do spend a lot of time, they seem to have time
for plea negotiations. They haven’t taken ownership of this order and we should think about why
judges aren’t taking ownership and we should change the order. Because really, like the judge can play a very significant role in
questioning the prosecutor and the defense about
discovery compliance, efforts to get the
information from the police, and I don’t know why judges
haven’t really adopted this as their own order, since
they are singing it. Each judge signs the order, but that’s the next step
for making this meaningful. – It sounds like too, from what we heard from earlier panelists, that’s a big issue. If we’re looking to judges to
be the saviors on this one, they’re not exactly showing ownership on a variety of issues that would help. Including this question of diversion because judges could do more, judges could as for
consultations or expertise on questions of diversion. And we do know judges
have put some pressure in certain places, to create alternative
courts and diversion courts. And so it is a real question of how you get them more
interested in these issues. I don’t know if anyone
else wants to comment. – I just want to say, the one
thing that I didn’t mention and why I think it’s important
to have judges involved and why I think it’s
effective in Connecticut is frequently, if everything
has been pled out, the judges actually have no real sense of who the people are
who appear before them. You only get them in the
context of the allegations and you only get them in
the context of the crime. And that’s the same for the prosecutor. But every time I had an opportunity, and this is a perfect situation for me, I might have had 20 cases, but every time I had a client, I had an opportunity to meet with them enough times that I knew who they were. I had an opportunity to put together some mitigating evidence. And I had an opportunity
to present who they were to the judge and to the prosecutor. And so I think that that just
sort of changed the dynamic. And the other piece that I would say is there are a lot of alternatives to incarceration in Connecticut, maybe there aren’t as
many as there should be, but what will happen is
you might get a situation where the judge will say, I think this is a a good
candidate for X program. And the prosecutor might
be reluctant at first, but then the prosecutor might say yeah, I think that this is a
good candidate for X program. And so I think the other
role that the judges play is to create an opportunity
to have somebody be heard in a way in which they
generally don’t get heard, if all you do is stand in front of court and you plead guilty or not guilty. And then your defense attorneys
talk to the prosecutor in the hallway and the conversation is solely about the disposition. It’s not really about all
of these other factors that frequently play a role when you say, this person committed X conduct but they do not belong in prison. They maybe don’t even deserve
to have a criminal record. What should happen, given those facts? – And I think you raise a good point. If we had time, we’d have more panels, including one on defense
attorneys and what they can do to better situate their
clients and their arguments. But you are suggesting that
giving time to get to know them, taking some of the resource
constraints off them and giving them more information
would certainly help. So I want to make sure you all have a chance to ask
questions if you like. So I don’t know if we have
questions in the audience? And we’ll get a microphone
headed your way. Back there. – As the microphone goes back there, can I just add one thing? So Dwayne eluded to this has
happened in an earlier panel, two people said the
person in the courtroom who knows the least about
the case is the judge. And we seem to accept that. And I guess I’m just a
little worried about the fact that we accept that so quickly. This isn’t a civil settlement where money is changing hands between a
civil defendant and a plaintiff. This is the system giving a
criminal conviction to someone and the idea that the judge
can act as a rubber stamp strikes me as deeply,
deeply, deeply problematic. The judge has to take the plea colloquy and enter the judgment of conviction. The judge is responsible for that. And I find it distressing that it doesn’t seem to play out that way. That the thought is, this
is between the parties, even though it’s really the
judge who’s entering the order. – [Audience Member] One
of the questions I had was how the criminal system
in the United States is mostly a state system, and within the state system there’s just so much local culture that
governs how offices are run. So assuming that these
reforms we talked about are not constitution required,
they’re just good ideas, how do you butt against the local control and the pride that prosecutors and judges take in their own system
not wanting to change and adopt other systems? – Anyone? – Well we were searching a while ago for explanations about what drove the New York sort of
changes and everything, and one thing that wasn’t said, that I think we need to acknowledge is we have believed for a long
time, with some reason, that, and this is speaking for someone who’s never run for office and never will, but if you look at elected
DAs and elected judges, which we have where I’m from in Texas, there has been a very strong belief that tough on crime sells. And I think there’s reason
to believe that that’s true, but maybe what we’re seeing now is that there’s realization
among the public that, for a variety or reasons, maybe different reasons from
different constituencies, that we don’t quite buy that anymore. And maybe we’re seeing a
corner turned, I don’t know. – And then the only think I’ll add is like one fascinating thing
happened in Connecticut, and so I didn’t know what the Criminal Justice Commission was, but the Criminal Justice Commission is the body that appoints
the State’s Attorney for each geographical area in Connecticut. And the governor appoints
the Chief State’s Attorney. And so for all these years, even when the governor was
about criminal justice reform, the members of the
Criminal Justice Commission never really changed to
reflect that type of intention. And the ACLU spent a
lot of effort and energy to try to get somebody
to get Governor Lamont to agree to try to compose a
Criminal Justice Commission that was more reflective of the sort of anti-excessive incarceration
ideals of his campaign. And they asked me if I
would accept a nomination, which for me was kind of absurd, because like I said, I had
pled guilty to a crime, I had spent time in prison, and now I was asked to be
a part of a body of people who were gonna pick the
person that would be the prosecutor in these
different places in Connecticut. But what I found really interesting, and one of the reasons why I said yes, is because when I was
trying to do research in some places in Connecticut, and find out what was going
on in the prosecutor’s office, the prosecutors would
sort of routinely say, first you gotta talk
to the states attorney, and then the states attorney would say we don’t allow researchers here. And I don’t know if they
just didn’t like me, or they just didn’t like transparency, but I think the only way to
kind of encourage transparency is to think about the different roles that we play in the system. Especially in places where the states attorney is not elected. – [Rachel] I don’t know if there’s any other questions from the audience. – [Audience Member] A
follow-up on Esther’s question. It seems to me that there’s almost a presumption or assumption
that if judges get more active, then the plea bargain process
will start personally favor, but using our regional stamp
of different legal cultures and the fact that most judges on the trial are never elected. I think it’s way utopian to presume that that’s necessarily going to be in favor of the defendants. Because the election
demon behind their heads, I think, may very well make them more in favor of a higher sentence. Because of the subliminal stamp of knowing what’s gonna come next in
the front page of a tabloid. – I mean in New York where
judges do play a role in either pressuring the prosecutor or negotiating directly, it
just depends on the judge. It’s not a benefit across the board. A lot of judges make
the prosecutor go higher than the otherwise would
have or reject plea deals. So I don’t view that as a total benefit. But in many cases, the judge does get the prosecutor
to reduce the sentence. And what I was talking about mostly is discovery and Brady,
exculpatory evidence. I mean I can’t really
see much of a downside in having the judge
take ownership of Brady and play a role monitoring that there’s been compliance
and what the efforts were. – And I think that does
go to Carissa’s point that if you’re going to
sign off on that plea, the fact that you don’t have that kind of enforcement of Brady is
definitely disconcerting. Because you would want both sides to have as much information as possible. So I think we have time
for maybe one or two more, if there’s any others from the audience. – [Candace] Candace McCoy,
City University of New York. Following up on judges taking power, taking the initiative, if
the discovery is better and if the facts are known more, there’s discussion in the literature about increasing the
potential for bench trials. What do you think of that? – Judge do you want to be
the one to answer that? – No. – I mean it’s not gonna
happen in New York City, where I practice. – I mean I would not be opposed to that. I think the problem is you have such a variety among judges that I think that it would,
you don’t want a situation where it would, and I
know you’re all gonna say, but that’s the world we live in, it would depend on which judge you drew. And I think that that would be the case. Because thinking within
my own jurisdiction, there are, I guess, 16 of us and we would be all over the map. And I don’t know if that would be a disincentive
in the blind system, where you don’t know what
judge you’re gonna get. Now in Austin, you’ve got a
50/50 chance of getting me. But I’ve done, believe it or not, I have done as a prosecutor, some bench trials in federal court. And those were, I don’t see the utility, in the context of what
we’re talking about now, because it would depend so greatly on the sensitivities of a particular judge you’re in front of and I’m not sure that that would be necessarily helpful. – Can I just say one more thing too? I just want to make sure I’m clear too, I mean, I’m arguing or discussing this or even like thinking about this from the perspective of absolute guilt. I feel like so many of the conversations that we have about the
criminal justice system, about over-incarceration as a product of some kind of gross injustice. And I’m really thinking
about what kind of system would best serve the people that I know who are still incarcerated, who’ve been incarcerated
for 10 or 15 or 20 years, or the system that
would actually serve me. And I recognize that like
a lot of the discussions around plea bargaining don’t exist in the context that would ever serve me. Like I confessed 6.5
minutes to the second, after being incarcerated. They locked me up and I
was like listen, I did it. I don’t even know what
I was thinking about, but I did it. And from that point on, it was never a question
of would I go to trial and what would happen
when I went to trial. And so I think sometimes, if we have conversations about this, because somebody might hear this and say that I’m absolutely
pro-prosecutor and pro-judge. But part of it is I’m trying to imagine what kind of a system might exist that would serve people
who are absolutely guilty and by the standard letter of the law, because they live in a state like New York where you could face five to 25, or you know I literally face
three to life and 21 years. Like I want a system that
imagines a person like that not being warranted a sentence
of 30 or 40 years in prison. And I can’t get to that system without imagining how to
get other actors involved that will think about things beyond sort of the absurd mandatory sentences and absurd discretionary
sentences that are possible across a spectrum of
crimes that are violent, but might not be what we think about when we say, this person
deserves 50 years in prison or this person deserves
40 years in prison. – So that brings us full
circle to where we started and the need for legislative changes to get at some of those long sentences, the mandatory minimums, some of the initial things you threw out. I’m gonna keep us on time, so we have the ability to listen to Dwayne discuss with Emily Basil
on her book, Charge. Which is coming up in 15 minutes, so make sure you get back
here for the keynote. And please join me in thanking
these great panelists. (audience applauds)

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