Carissa Byrne Hessick
Subjective Judges and Justice
Air Date: March 7, 2022
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HEFFNER: I’m Alexander Heffner, your host on The Open Mind. My guest today is Carissa Hessick. She’s a professor of law at the University of North Carolina, and author of the book “Punishment Without Trial: Why Plea Bargaining Is a Bad deal. Carissa, thank you so much for joining me on the program today.
HESSICK: It’s nice to speak with you.
HEFFNER: Let me ask you a question honestly, has plea bargaining ever been a good deal for folks, if you look at the legal history? I mean, at least if we look at this history of the last few decades have trends emerged, you know, within the last 25 years, that suggest that, you know, to plea bargain is really to jeopardize the integrity of the judicial process that you’re about to experience. Has plea bargaining ever been a fair deal in this country?
HESSICK: Yeah, I think as with most things, the, the question is what’s your frame of reference? Is it good for the system as a whole? I certainly don’t think so, but there are definitely individuals who have benefited from it over time. One of the big complaints when plea bargaining was sort of discovered to be widespread at the beginning of the 20th century, was that it was too generous to defendants, that defendants were not serving the sentences or getting the sorts of convictions that the law said that they ought to get. And people thought (laugh) people thought that was a bad thing, because at the time the laws were written in a way to capture behavior that we wanted people to not engage with, and to give them the sorts of punishments that that were sort of deserved.
But as time went on and it became clear that plea bargaining was more ubiquitous, you know, the laws changed and now the sentences associated with a lot of crimes are so severe that if people go to trial and get the prescribed sentence, that’s unfair as well. So you’re asking an excellent question. Was this ever, was plea bargaining ever good? And I think, I think my answer to that would be, if you’re talking about as a system, if you’re talking about the system as a whole, the answer is no. But at various points, different institutions and people have benefited from it. And that’s why it exists today.
HEFFNER: And what kinds of reforms are you suggesting, you know, ultimately after capturing this history, just to get right to how the system could be improved so that, you know, if there is a guilty verdict or an acknowledgement, did something wrong, in acknowledging that, or in pledging some kind of cooperation or restitution that, you know, there can be, I wouldn’t call it leniency, but a negotiation that makes sense, makes sense for the protecting the community and protecting, you know, the individuals as well.
HESSICK: So I think that different, different people and different institutions can reform different parts of the system, right? So legislatures can change the laws. They can do away with the mandatory minimum sentences that exist in large part to pressure people to plead guilty. That’s one thing they could do. Judges could actually do quite a lot here. They could stop holding people in prison who are, I’m sorry, in jail, who don’t pose a real risk of fleeing or not showing up for their court case. But in instead when they sit in jail, they take a plea deal so that they can get out because sitting in jail is horrific. Or judges can also stop imposing lengthy sentences on defendants just because they insisted on going to trial. I mean, plea bargaining, plea bargaining sort of grew up in part because judges too didn’t want people to go to trial. And they would say, you know, young man, if you’re, if you are going to make the prosecutor try this case and bring a jury in here, your sentence is going to reflect that. So those trial penalties need to go away as well.
Prosecutors need to stop bringing these indictments that are filled with duplicative charges or threatening to bring additional charges just if people don’t plead guilty. And defense attorneys need to be given the resources to investigate cases and be in a position to bring them to trial. Because, you know, it’s, bringing a case to trial is a lot of work, a lot more work than sitting in a room and having a negotiation. And a lot of defense attorneys don’t have the resources to bring all of their cases to trial. And I think some of them, frankly, they just don’t have that mindset. They assume everything’s going to plead guilty and they walk into a case, instead of trying to figure out what leverage they could have at a trial, what the winning arguments would be, filing all of the motions that they otherwise might want to. Instead, their incentives are to create a good working relationship with the prosecutor and try to negotiate the best deal possible.
HEFFNER: Carissa, how much of the backlog court system is relevant here? Because one of the things that this new Congress was supposed to be able to embark on was expanding the size of the court system, not necessarily the U.S. Supreme Court, but lower courts. And how much of that is related to changing incentives that shouldn’t be where they are because the system is so backlogged?
HESSICK: Yeah. So I’d say it’s related, but less than you might think. Look, if you talk to prosecutors or you talk to judges who think that plea bargaining is an important tool for them to use to manage dockets and to keep courtrooms moving along, they’ll tell you that they have to have plea bargaining because otherwise they’d never be able to dispose of the number of cases that they have. But the truth is, when you, you dig behind that and look at the actual numbers, you can see that they’re really overstating things. There was a judge actually in West Virginia, who was very annoyed about the prosecutors’ plea bargaining every single case and courtroom. And he’s like, why are none of these going to trial? And they’re like, well, it’s resources. And he had been on the bench for a long time. And he went and got the data about the number of federal criminal trials. I think he started in 1990 and he found that there were approximately 8,000 criminal trials in the federal system every single year. And then he checked the last around data that they had, 2015 or 2016. And saw that were about quarter of a quarter as much only about 2000 – so the number of the absolute number of had down precipitously, even though in that same 25-year period, the number of federal prosecutors and the number of federal judges had gone up. So the system has capacity to try far more cases than it does now. At the same time, the people who support plea bargaining, they insist we can’t possibly try all of the cases that we have, and that’s true. But I also think it’s very concerning to see that the number of trials, even the absolute number of trials is shrinking and shrinking and shrinking. And yet we’re still making this resource-based argument and saying that we have to give all of this leverage to prosecutors, and we have to place all of this pressure on defendants because we can’t afford to have more trials. The truth is we can afford to have more trials. We can afford to have many, many, many more trials than we have now, but we’re just not willing to.
HEFFNER: And since this is something that’s considered on a state-by-state basis, if that really isn’t the factor that people make it out to be, then what are the reforms that are going to incentivize the kind of bargaining that you think is fair, to the defendant and to the state?
HESSICK: I don’t think that the American public really knows what plea bargaining looks like, how common it is, the fact that if they were accused of a crime, including a crime that they didn’t commit, that they’d probably be pressured into taking a plea deal. And when they do find out about it, they tend to react in a way that I find encouraging.
So for example, there was an election a couple of years ago in Ohio, where a local trial court judge didn’t like what the laws were about plea bargaining. He thought that things weren’t transparent enough. He thought that the public was being misled. And so he asked the Ohio State Supreme Court to change their court rules to institute I would say with some, some sort of commonsense safeguards. And the state Supreme Court said no. And so he ran for the State Supreme Court, and he won. This is Justice Michael Donnelly out in Ohio. So he ran on a message of plea-bargaining reform and ended up getting elected. Individual judges have a lot more power here than you might think. Let’s be clear. The Supreme Court is horrific on this issue. They’ve said plea-bargaining is constitutional. They’ve said all of our ordinary constitutional rules about not retaliating against people for exercising constitutional rights don’t apply. Defendants can be pressured into bargaining about just about anything, and that’s okay. It doesn’t upend due process. But individual judges have a lot of power about whether they’re going to accept a plea bargain. And so they can say things like, you know what, I’m not going to accept this plea bargain, if the defendant has to waive his right to appeal. They can do that. What’s the government going to do? They’re going to be like, OK, fine. We’ll take that out of the plea agreement. Individual judges can do even more than that. I mean Judge Sullivan in DC who clearly has a grudge against the Department of Justice because they had withheld important information in a high-profile case against a Senator several years ago. He now says he’s not going to accept a plea bargain or enter a sentence until the government has turned over all of the discovery in the case that they’d have to turn over if they were going to trial. So the defendant might feel pressure to do that, but the judges can really tamp down on that pressure.
HEFFNER: So you’re saying individual judges can have that checklist. They can have that criteria, say okay, there’s no undue influence or inappropriate motive that established a verdict here, a negotiation that was flawed. But that kind of checklist doesn’t really exist from the American Bar Association. I mean, it’s not like each judge can consult a record of like how not to be either duped into a sentence that is wrong or, you know, can just be extremely scrupulous in assessing it on the basis of these four or five criteria and whether they are met and therefore the plea deal should go forward. I mean, and you say the American public is unaware. I think that’s true. And I really wonder if it’s correlated with the absence of the real procedural “Law and Order” being on television for all these years, because that’s probably the most intimate experience people who didn’t interface with the justice system had.
Now we know Dick Wolf is reviving the old “Law and Order” not the new “Law and Order.” We’re talking about the NBC entertainment program. But to be quite honest, I mean, procedurally that show go fairly in depth into a concept like plea bargaining. And you could kind of understand from the prosecutor and defense attorney what was motivating the outcome, you know, in, you know, at least the closest thing to a textbook that the American public ever had on that. But the question as far as, you know, having a checklist of accountability to make sure that that sentence, which could be set in stone is only being set in stone, you know, again, there could be appeals, but it’s as close to being set in stone as anything can be. And so I guess my question is just is there any kind of system at where, you know, we understand these factors went into the decision, into that negotiation and, you know, on that basis, we think that the judge or the attorneys involved that it’s fair.
HESSICK: So look, the American Bar Association has a task force right now devoted to plea bargaining. And I understand that they’re working on all sorts of issues. I don’t know whether they’re going to come out with a checklist, a sort of best practices type approach. But I will tell you that what I saw on “Law and Order” and I was a huge fan of that show does not…
HEFFNER: I’m talking about the Michael Moriarty through Sam Waterston, but of course…
HESSICK: Yeah, no, no, that era, the, the good old stuff where it’s true, like they would have real substantive law issues and real procedure issues. It was a great, great, great, great show. I will tell you that when I visited courtrooms across the country to write this book or interviewed judges and attorneys, I did not see the process and the level of attention to detail that we would see when Sam Waterston was deciding (laugh) that he was going to offer a plea bargain in a case. The opposite, really.
HESSICK: You know, the same sort of resource-based arguments that leads to plea bargaining in the first instance are the same arguments that people use to not do full investigations of cases. I mean, I can’t tell you the number of stories that, it was only, you know, if the defense didn’t plead guilty and it was two days before trial, a defense attorney could tell when the prosecutor opened the file, because they would suddenly get an offer that looked very different from the initial offer that they got when the prosecutor was just like, okay, what’s the charge here, as opposed to, oh, look at this. It looks as though it looks as though this a bad search. So I better give a good offer. Or I don’t know where my, where my victim is. Or the video evidence that I’m supposed to have shows something completely different than the police report. So, I’m not trying to suggest that the people in the criminal justice system are acting with nefarious motives. I don’t think that they are, but because they expect everything to plea bargain, they don’t often spend very much time with a case unless they have to. And I’d say that’s on both sides of, both sides of the courtroom. A lot of defense attorneys, they have such a high caseload. They’re not conducting big investigations into these cases either. And because of that, the sort of considered negotiation that we see on television is just not the reality. It’s, what’s the charge, what’s the going offer for this, is your guy going to take it or not.
HEFFNER: And it sounds like from what you’re describing that the rules and regulations are the kind of, again we’ve just established, there really aren’t rules and regulations. It’s kind of like recusals from the judge’s perspective, right? I mean, it’s, it’s very, very subjective and not subject to any accountability. I mean, we see this on the Supreme Court in recent months and years you know, with Justice Gorsuch, Justice Thomas that is of course the most high-profile area of where people have conflicts, but you know, decide they’re going to rule anyway, but there seems to be a problem, broadly speaking in the judicial system with the kind of integrity and the lack of accountability, you know, you talk about improving the culture of plea bargaining, but I think recusal has, you know, the, the failure to recuse and the lack of accountability when it comes to recusals should be discussed maybe just as much?
HESSICK: I mean, it’s hard for me to know how big of a recusal, how big of a problem recusal is, right? I mean, the Supreme Court is going to look different than all of the other courts on this because they just aren’t subject to the same rules. I mean, when I teach my judicial ethics class, I teach the rules to my students about when judges are supposed to recuse themselves. And it’s when their impartiality can be reasonably questioned. That’s an awful lot of cases. And I don’t have a good sense about how often that happens in the lower courts. I do know that there was this big expose, I forget it. I think it might have been in the Wall Street Journal showing a number of highly, highly, highly questionable court decisions by lower court judges where they’d failed to recuse themselves despite owning stock or having family members owning stock, which is a pretty clear violation of the ethics rules.
And it sounds as though the judges and their court clerks just weren’t keeping track of these things. And that doesn’t inspire a lot of confidence, but I’ll tell you, I think that putting recusal to one or maybe recusal is part of this, I don’t know. I’ll tell you that a big problem that I see is buck passing. That it’s easy for everyone in the system to say, oh, I’m just checking this box. I’m just moving this case a half step forward. If there should have been a different outcome, it was up to someone else. You see prosecutors and judges routinely blaming the legislature, being like, well, they passed this law. But then if you look at the debates to the extent that there are any in the state house, people will say, the people getting ready to vote on this will say, well, we need to give flexibility to judges or flexibility to prosecutors.
They think they’re delegating discretion to these other actors. And the other actors are throwing up their hands and saying, well, what can we really do about it? The truth is our system, right, to be very sort of “Schoolhouse Rock” about this, divides power up for a reason. It divides power up so that any, you know, any sort of, of the many people who’ve been dedicated a piece of the action when it comes to putting someone in prison can stop and say no. But even juries, even in those few cases where we see jury trials, if you read some of the social science where they’ve interviewed jurors, you’ll see that that system’s not functioning the way it’s supposed to either. They’ll say things like, oh, well, you know, I thought I had to convict. Or I thought I had to impose the death penalty because the prosecutor proved one of the aggravating factors. And that’s not true, right? The jury is supposed to be the conscious of the community. They’re supposed to be making qualitative judgements. Or when judges will say, well, we can’t read the statute this way, because it might not be what the legislature intended. Look, that’s not what judges were supposed to do. Judges for hundreds of years before America started, and you know, a couple of hundred years after it came into being, they would say things like this is an unjust way to enforce the law so we’re going to read the statute differently. There just, there used to be a different sense I think of individual responsibility for making moral judgements. And I think until that comes back into the system, problems like mass incarceration are going to endure.
HEFFNER: And how does that come back into the system? That’s the key question, right?
HESSICK: Yeah. Well, I mean, here’s where I think I differ from a lot of my very progressive friends who are starting to see the courts as the problem rather than an avenue that’s a solution. And they tend to see some of the more recent appointees to the bench as a particular problem, because they believe in things like Originalism. I’m not an Originalist myself, but I do think that the history from this country about law and the role of judges tells them that they’re supposed to take a more active role and that they’re supposed to interpret statutes narrowly. They’re supposed to do things like, you know what, we could read this one of two ways. One way, this guy’s going to end up in prison, and another way he’s going to get acquitted. We’re supposed to do the second way thumb on the scales, very explicit above board clear about what’s happening. So I do think that that’s one possibility. Another possibility. Now here, it’s going to depend on, on which type of conservative that you have, but some of the tenets that push judges to be very skeptical of government power, like the sorts of questions that you see and like the vaccine, like the OSHA, you know, sort of vaccine and testing case, that you see, and like maybe the other cases about administrative power. Those arguments are even stronger in the context of criminal law. If there’s any place where we should be suspicious of government power and the accrual of so much power in the hands of the executive offices, it’s when those executive officials can literally put people in prison. So, I mean, I understand that this is largely playing out of the context of administrative regulations that sound very technical, like the new cert grant in the clean water case.
But there was a case just a couple of terms ago, where there were almost enough votes to say the Department of Justice can’t be part of figuring out what the law is. That’s an inappropriate delegation. And it was Justice Kagan. And the more liberal justices who were like, no, that’s not what we want to do, the modern administrative, the modern administrative state needs lots and lots of power. I mean, I think you can disaggregate the two. I mean, all of the arguments about separation of powers are supposed to be about preserving Liberty. Think we can agree that there’s just less Liberty involved in terms of like you get to dump in the groundwater and not get a fine, and we’re going to throw you in prison for 30 years.
HEFFNER: That’s fascinating. And the buck passing that you describe, you know, can be mistaken for the kind of individual Liberty. I mean, when we think of decisions subjectively being made in the court system or in the political system, right. I mean, there’s, I think there’s a lot of rationalizing the buck passing through this idea of you know, not necessarily small government, but “that’s not my role.” And certainly on the Supreme Court, there will continue to be that tendency to not make those decisions. And, you know, the idea that the people will make those decisions.
It strikes me that there’s always going to be a measure of subjective in the courtroom. And that’s just the way the systems designed the nature of a trial that, that’s why a judge becomes a judge, but you can still preserve the subjective and have some rules. And, it seems like with the recusals for instance both when it comes to judges and also this question about legislators, it doesn’t seem hard to do that. This is legislation that Senator Ossof is pushing forward, and he has partners in the House to ban stock trading for electeds. But it’s that kind of thing that seems so easy to correct. And just having some base level of rules and they don’t seem to exist either in the representative system whether you’re electing a judge or appointing a judge, or, you know, elected office holders.
HESSICK: Yeah. I mean, I guess the only thing that I’d say is, look, I agree. I don’t think the American people should be worried about the decisions that are being made in their name, whether they’re being made for financial gain for the individual officials or whether they’re being made because it’s the right policy, or at least according to the, the person in office. I will say that I do think one problem when it comes to criminal justice, it’s not that we don’t have rules. We do have rules that leave room for subjective discretion. It’s that all the incentives are for people to be too harsh. And part of the problem there is the American public. I mean, how often have you seen people get angry because they thought somebody was treated too leniently as opposed to people getting angry because they thought someone was treated too harshly.
I could be wrong. We see examples of an outcry about treatment that’s too harsh every once in a while, right? The case out of Colorado with the trucker is a good recent example. But we have way more outrage about somebody who didn’t get long enough sentence than the opposite. And that creates an incentive for judges and for prosecutors that if they’re going to err, that they err on the side of too much punishment rather than not enough. And I think that those incentive; we have to be worried about those incentives because you’re right, we can’t remove subjectivity from the system. I don’t think we want to. I think we want people exercising moral judgment. But the system was set up to enable them to be more lenient and to show mercy. And that seems to be the opposite of what’s happening in those cases.
HEFFNER: Carissa we’re out of time, but culturally, I think while we spent several decades sensationalizing that leniency I think the tide, you know, is turning a little bit and now we view some long sentences as outrageous too, I mean, slowly, but I think that there may be some progress, if not in the system, in terms of just the cultural understanding of what outrage you know, what’s triggering that outrage. Carissa, I want to thank you for your time today. And please do check out her book “Punishment Without Trial: Why Plea Bargaining is a Bad Deal.” Professor of Law at the University of North Carolina, Carissa Hessick, thank you for your time today.
HESSICK: Thank you. Great to speak with you.
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