S02E03 -

Prosecutors are almost completely in charge of the criminal justice system and that unchecked power has ugly consequences.

In 2018, just under 3% of all federal sentences were the outcome of a jury trial. An overwhelming amount were the consequence of plea deal. Does the current system of deals and agreements make us safer?


Throughout this episode Landry Ayres talked with; Clark Neily, Kevin Ring, Molly Gill, and Lucian Dervan

Music by Cellophane Sam

Image Credit: https://​ford​la​wokc​.com/​p​l​e​a​-​b​a​r​g​a​i​n​s​-​e​x​p​l​a​ined/


00:02 Landry Ayres: In the Federalist Papers, Alexander Hamilton writes, “The founding fathers, if they agree in nothing else, concur at least in the value they set upon the trial by jury.” This rare rare agreement resulted in a constitutional provision ensuring every American’s right to a speedy and public trial, amongst other things. But since then, over the more than two centuries since the US was founded, the jury trial system has effectively slowed to a trickle, and not because there wasn’t any crime. To put it into perspective, in 2018 there were around 1800 trials in the federal system. Now, that might seem like a lot until you realize there were around 69,000 federal sentences handed down last year. That’s just under 3% of sentences being a result of a jury trial. How did we get to this point? How has one of our supposedly bedrock rights come to be so under‐​utilized? Did something happened?

01:14 Landry Ayres: This is The Pursuit, a podcast about government action and individual liberty. I’m Landry Ayres.


01:29 Clark Neily: It’s a great question, it’s an important question, and the answer is no, there wasn’t sort of one defining moment, but there were sort of a small handful of dynamics that helped us to turn a corner.

01:41 Landry Ayres: This is Clark Neily, Vice President for Criminal Justice at the Cato Institute.

01:47 Clark Neily: At common law, so in England before the American founding, plea bargaining was unknown, it just didn’t happen, and was looked down on by the courts. In the small handful of cases where anything like plea bargaining came up, it was quickly dismissed and sort of denigrated by English courts. That seems to have been the attitude of early American courts as well. Plea bargaining was unknown at the time of the American founding and in early decisions where something like plea bargaining came up, what you tended to see was language from judges about how this is justice for sale, this is not the way a credible, respectable court system operates.

02:31 Lucian Dervan: So if you go up to the time of the American Civil War, that’s when we first began to see what we would think of as sort of modern plea bargaining, the idea that someone was given a benefit for pleading guilty.

02:40 Landry Ayres: And this is Lucian Dervan, he’s the Director of Criminal Justice Studies at Belmont University College of Law.

02:48 Lucian Dervan: And uniformly, the appellate courts of the time that saw that struck it down, it was just not something that was permitted, it was not something that the common law allowed, and the courts that looked at it in the US didn’t feel as though they should extend that notion. And nevertheless, we continue to see it grow, particularly in the early 1900s, but then we sort of began to move into this era of over‐​criminalization, particularly with Prohibition, and the court systems just became overwhelmed. There weren’t enough judges, there weren’t enough prosecutors, defense counsel were strained with their resources, and so the system began to actually use it as a vehicle for efficiency, and that’s when we really began to see the shift towards modern plea bargaining. Despite that, we still didn’t have confirmation from the Supreme Court all through that initial period of the 1900s that this was allowed.

03:40 Lucian Dervan: And if you were to go back and look at that early precedent from the appellate courts after the US Civil War, you would think it wouldn’t have been allowed. But interestingly, by the time we get to 1970 and the Brady decision of the Supreme Court, I think, to the surprise of a lot of people based on that earlier precedent, they went ahead and signed off on it, and I think the reality is that they had to sign off on it.

04:01 Landry Ayres: Lucian is talking about the landmark 1970 Supreme Court decision in Brady v. United States, which essentially rubber‐​stamped plea bargaining as a valid means of criminal justice, if made with full knowledge and willingness and the advice of competent counsel.

04:38 Lucian Dervan: And so they thought, if we allow plea bargaining, then the clearly guilty will accept this benefit, it doesn’t need to be that large and that’ll clear a lot of the docket. And they actually talk about saving resources for the cases that need to go to trial. And of course, what happened after that is that plea bargaining just took off and got to where we are today, which is 97% to 98% in the federal system are pleas of guilt, 95% in the state system, and it doesn’t really look, in my opinion, like the system the Supreme Court envisioned in 1970. So you sort of have to wonder if the Supreme Court of 1970 had known where this was going and what it would look like today, would they have made the same decision, or would they have made a different decision because of all the concerns that exist now about whether we’re sort of sacrificing the accuracy of our system for the efficiency that plea bargaining offers.

05:31 Landry Ayres: One person who had an experience with this is Kevin Ring. Now, you may have heard Kevin’s name before, but it’s more likely you’ve heard of his former boss, Jack Abramoff. Kevin was a former Washington DC lobbyist at Abramoff’s now infamous firm and was implicated on charges of honest services fraud, for doing what he thought was typical for his job, things like offering tickets to Washington Wizards basketball games and Disney on Ice to political actors. After Abramoff’s lobbying firm came under investigation for a variety of offenses, Kevin decided it was best to be open and give over any information that he had.

06:14 Kevin Ring: We had reached out to the government and said, I only have one story and whenever you want me to come in and tell you what I know I’m happy to do that. At some point, they called me in and it started a series of meetings I had with the government over the course of two years, where every couple of months I’d go in for a full day and do a debrief. They’d have the full team of investigators from different agencies and we’d go through all the emails and questions they’d had. I was nervous that whole time. It was obviously an anxious time, and other people were being indicted or pleading guilty. It just worked to a point where after two years of cooperating and getting good feedback that I was being honest and truthful, we had one session where it got very hostile, where their tone had changed and they were saying things.

07:01 Kevin Ring: They were acting as if I was on the witness stand, they were cross‐​examining me, they were really coming at me hard, trying to get me to say things that I had refused to say for two years, implicate people who I didn’t think were guilty of crimes, attribute motives to people that I didn’t think were right. And so the meeting got very tense and after a half hour, my attorney shut it down and I was excused from the room and after an hour of waiting, they came back and said they want you to sign an agreement to these things and to plead guilty and agree to cooperate against others. And I said, “I’ve never said the things that they want me to say, I’m not gonna change my mind now, because I don’t believe it.” And then a few days later, they sent over a draft plea agreement and it was full of things I couldn’t agree to or admit to, because I didn’t think they were truthful.

07:58 Kevin Ring: And that’s when it hit me. This was it. And so when we sent it back and said, “I’m not signing this,” they said, “We can take action at any point.” And so I knew it was gonna get very tough very soon. I thought they might indict me and arrest me, but the first thing they did was wait a couple months, and they came and raided my house at 7:00 in the morning, 15 FBI agents with guns, surrounding my house and I had two young daughters, so they were scared, of course. At the time my youngest daughter was sleeping in between us in bed when they raided the house. My older daughter was I think five or six and she was downstairs watching cartoons and she hid under the table in the kitchen.

08:46 Kevin Ring: It’s incredibly disturbing, and you would hope that that sort of display would be reserved for cases where it was absolutely necessary, but the collateral damage that they were causing for no reason seemed excessive. It was very nerve‐​racking and scary, and so they searched the house all day, we got through that day and then my lawyer said to them, “If you want to indict him or if you return an indictment, don’t come back to the house, just let us know and he’ll self‐​surrender.” And they said, “We won’t make any promises,” and sure enough, a couple of months later, they came back 7:00 the morning with a warrant to arrest me and did the whole perp walk in front of my house, but it was clearly designed to intimidate and get me to cooperate, and I sort of found it had the opposite effect, it just made me feel like, “Okay, we’re on.”

09:48 Kevin Ring: It felt like it got personal and that they were playing real hard ball with somebody who… There was no reason to arrest me in front of my kids or raid our house. I had turned over tons of documents and other stuff, so… But it was scary, it was definitely a scary feeling. I spent that day, the day they arrested me, I spent that day mostly at the DC jail with handcuffs on, and then I had to be arraigned and even to walk over to the court to get arraigned, they put leg shackles on, and so that was like physically uncomfortable, but I definitely felt that it was being done to intimidate.

10:22 Landry Ayres: It was not just Kevin who saw the intimidation in all of this; it was deliberate. But why all of this just for one person who had committed a non‐​violent offense? The answer to that goes beyond just Kevin or his case.

10:40 Clark Neily: The truth is that prosecutors are almost completely in charge of the criminal justice system. They have virtually displaced judges and also, of course, the people who are supposed to be at the very center of our criminal justice system, which is citizens. The framers of our Constitution very consciously put citizen participation at the heart of our criminal justice system and prosecutors have very successfully ripped that heart out, so that citizens have almost no involvement in the criminal justice system, so it is really run by and for prosecutors in large measure.

11:10 Clark Neily: And look, they’re like anybody else, they have incentives and they respond to those incentives. Now, prosecutors, like anybody else, like to be promoted, they like to get raises, and one way to do that, and basically the most, the single most important way to do that as a prosecutor is to increase your number of convictions.

11:28 Landry Ayres: This is Molly Gill, Vice President of Policy at Families Against Mandatory Minimums.

11:34 Molly Gill: This plea bargaining process is happening completely off the record, completely behind closed doors, outside the courtroom sometimes. I started my career as a prosecutor and we used to do the plea bargaining in the hallway before we would go in and present the resolution to the judge and say, “This is the agreement that we’ve reached, this person is gonna plead guilty. We’re gonna dismiss these four charges and we’re gonna recommend this particular sentence.” And usually, judges said, “Yep, okay,” and they went along with it. And they really had no power over us, to tell us to reach a different arrangement or to change the outcome.

12:12 Molly Gill: Prosecutors have bosses just like the rest of us do, and in your state that’s typically a District Attorney or a County Attorney. I worked at a County Attorney’s Office. And sometimes these charging policies are set at the top, they’re set out in memos and at the federal level, we’ve seen this with the Attorney General usually issues a charging directive memo to all of the United States’ attorneys in the 94 districts across the country. And people are supposed to follow that memo and that memo often includes things like, “You shall charge the most serious readily provable offense in every single case,” as opposed to perhaps realizing that, even though I could bring this very serious charge with this very serious penalty against, for example, this low‐​level drug offender, I’m recognizing that this is a low‐​level drug offender who doesn’t need to be in prison for that particular sentence. And so, I’m gonna deviate from the memo and charge this particular way.

13:11 Molly Gill: So it’s a combination of individual prosecutors using their own discretion in a case, but also whatever policies have been set at the top.

13:20 Landry Ayres: We can’t say for sure whether there were particular people who wanted to make an example of Kevin, or whether his experience was a result of incentives being stacked against him. But a memory does stick out in his mind as to how it all happened.

13:37 Kevin Ring: My case was written up in the Washington Post, it was a big… It was understood to be a real trial penalty fight, because they had asked for four or four‐​and‐​a‐​half years for Abramoff and they were threatening me with 20, and no one thought that I was more culpable, it’s just I didn’t plead and wasn’t cooperating against others. So I went in one day for, it was like a three‐​hour session with 20 FBI agents and government prosecutors around the table, and they did about a two‐​hour PowerPoint presentation with things that I had said during the course of my two years of cooperation, other emails that they had, what other people would say and things like that. And they went through all of it. The final chart in the PowerPoint said, “If you plead and cooperate, we’ll charge this, this and this, and this is what you’re facing. If you go to trial, this is what we’ll charge and this is what you’re facing.” So rarely do you see the trial penalty laid out in black and white like I was able to.

14:45 Landry Ayres: Kevin uses an important term here, the trial penalty. And I think it’s helpful to understand just what that is, to understand the consequences of not pleading guilty.

14:57 Clark Neily: Trial penalty is a term that refers to the differential between what a prosecutor will offer you if you take a plea bargain and what your punishment will be if you exercise your right to a trial and you lose.

15:09 Molly Gill: And by doing that, prosecutors essentially coerce defendants into pleading guilty whether they’re guilty or not, whether those charges are appropriate or not, and giving up their very valuable Constitutional right to have their guilt determined by a jury of their peers.

15:24 Clark Neily: The trial penalty is one of a kind of a whole suite of tools available to prosecutors to induce people to waive their right to a trial and plead guilty. It just happens to be a mine more powerful ones.

15:37 Landry Ayres: With that kind of pressure on you, it’s easy to see how guilty pleas become more common.

15:43 Molly Gill: I mean, there’s all kinds of ways to plea bargain. You can do sentence bargaining, which is, even if the sentence isn’t mandatory, I’m as a prosecutor, going to recommend a very serious punishment for you, as opposed to a more lenient punishment. You can also do charge bargaining of the more garden variety sort where you can say… Let’s say I’ve driven drunk, I was also speeding when I got pulled over, I had my kid in the back seat. Now, this is not laudable conduct, but the normal charge for that would be a DUI, one count. As a prosecutor, though, I could come in and say, “I’m gonna charge you with DUI and speeding and reckless driving and endangerment of a child and endangerment of a minor,” and so they can say you can either face eight charges, or you can plead to these two. And a lot of people will plead simply to avoid all of those other charges.

16:39 Landry Ayres: However, some pressures to plead guilty aren’t explicitly from deals prosecutors offer. Some are more, shall we say, implied.

16:49 Clark Neily: Lots of people end up in jail, awaiting trial. Sometimes they don’t even have a bail available to them, but a lot of times they do have bail but it’s set at an amount that they just can’t realistically afford, so they’re going to be stuck in jail waiting for their trial. It’s a very difficult place to be, jail’s a very unpleasant place to be. Places like New York City, where they send you to Rikers Island, it’s not too far, it’s not an exaggeration that call that a hellscape.

17:13 Clark Neily: Most people who go through our system are represented by government‐​funded lawyers and the government persistently under‐​funds those lawyers. Essentially, they carry more cases than they should, they don’t have the time to give a fully zealous representation in each of their cases. Sometimes you don’t even meet your lawyer until the day of your trial and that’s not how a zealous defense is put together. Something that prosecutors are permitted to do and in the federal system routinely do is threaten friends or family members, so if they want you to take a plea and you’re being resistant, they might well say something like, “Well, you know what? This is a white collar business case, and your father participated in this business for a while, didn’t he? Maybe we should take a really close look at him. Let’s take a look at his income taxes, look if he ever hired an undocumented worker, we’ll just look at every single facet of his life. How do you think Dad would do in prison?”

18:05 Clark Neily: And as shocking as it may seem, that happens all the time. It is absolutely routine for prosecutors to threaten family members in the way that I just described. Then, of course, there’s mandatory minimums, which is, these are laws that require a judge to sentence someone to a particular length of time if they are convicted after a trial. And this is a very effective tool, of course, of plea bargaining, ’cause it takes all discretion away from the judge to, if you’re a particularly sympathetic defendant or if you had some explanation for why you engaged in the conduct or you seem like you would never do it again, whatever it might be, the judge might be inclined to say, “You know, listen, just I’m gonna kinda give you a slap on the wrist and just make sure I don’t see you again.” So taken all together, these tools add up to a very, very coercive dynamic.

18:56 Landry Ayres: Most of us expect law breakers to be punished for their crimes, especially repeat offenders, but mandatory minimums do not reduce criminal behavior, they just increase the prison population. Knowing what we know now about the criminalizing of addiction and racial and class biases in law enforcement, we need to take a hard look at how the criminal justice system hands out punishment. Kevin saw the full force of federal prosecutors’ power during his experience, whether it was by the intimidation of his family or the threat of extra charges being tacked on.

19:39 Kevin Ring: It was just all that kind of cheating and nonsense tactics that you hear about, but to see it is really disturbing, because your freedom is at stake. So I thought if I lose a fair fight, that’s one thing, but to see the way they were playing it was different. And of course, you know, when you’re going against the government, they stand up. And I’m John X Smith representing the United States of America. It’s like everything in that courtroom is slanted against you sitting over there, because most jurors are gonna think, “He’s not here for no reason, he did something.” That’s just a natural bias that people will have, and I understand that, even with the presumption of innocence. And so to see all the different ways that they tried to keep evidence out that was helpful to me, to get evidence in that was prejudicial and had no value otherwise, it was just all disturbing. You felt like it was a game. And it’s not I think that they are less honest or less good people, they’re like everybody else, but power corrupts, and if their power goes unchecked, you’re gonna see the behavior that I saw.

20:54 Landry Ayres: If power has corrupted to this extent, what are the consequences? How many people are forgoing their right to trial even if they’re innocent, just out of fear of a sentence they’ll never escape? Will someone really falsely confess to a crime they didn’t commit? This is Lucian Dervan again.

21:16 Lucian Dervan: And so back a few years ago, a colleague and I decided to… We would try to test this in a different way. Because what had been tested up to this point was people attempting to go into the prison system and say, of this population, how many people here have falsely pled guilty to something that they didn’t do, and that’s just very, very hard to test. So we decided to look at it from another perspective, and that is to say how likely is an innocent individual, how likely is it that they would take a plea to something they didn’t do? In our research, we used the deception study that falsely accused students of cheating and then offered them a plea deal. And about half the individuals who were in the study had actually engaged in the cheating and half had not, and this is something that we knew definitively, because we had placed someone in the room with the participants.

22:04 Lucian Dervan: And so we accused everyone of engaging in academic misconduct by cheating, and then we offered them two alternatives. If they were willing to plead guilty they would lose their compensation for participating in the study, which we believed was akin to a plea in return for probation in the criminal justice system; and if they didn’t, then they would proceed to a trial before an administrative review board, which we described in a manner that really sounded a lot like a criminal trial, and in that context if they lost, we created a differential by again saying that they would lose their compensation and that their advisor would be informed and that they would have to attend an ethics course.

22:43 Lucian Dervan: And our numbers showed that about 89% of the participants who were guilty of the misconduct, they accepted the plea deal and pled guilty, but also 56% of the innocent individuals did the same thing; 56% of the individuals, more than half, felt like the rational decision for them was to falsely plead guilty to something they hadn’t actually done in the context of academic misconduct. And I think that’s a number that should give us a lot of pause and concern, because it indicates that this is a real problem for our system and it means that the accuracy and the reliability of a criminal justice system that relies so heavily on plea bargaining really has to be closely examined. It’s very easy for people to say what they think they would do if they were ever placed in that position, but sometimes we find in the psychological research, that what people actually do when they’re really facing that situation, when they don’t believe it to be a hypothetical but they believe it to be an actual scenario that potentially will change the trajectory of their life, that then they end up playing very different, and that’s exactly what we found in our research.

23:58 Landry Ayres: So what makes Kevin different is that he fought against all of this. He refused to say things he believed were untrue, to plead to actions he didn’t commit, even if he had done others. And so the case dragged on and eventually the jury went behind closed doors and began to deliberate.

24:18 Kevin Ring: My first jury hung evenly on all counts. So you’re thinking, alright, maybe that’s good because this jury understands that this is a complicated case, and at least half of them understand your viewpoint. And then the government stands up immediately and says we want a re‐​trial immediately. So then I got re‐​tried a second time. And in that case, the government’s tactics were worse, because they had, felt like they had lost, and so everything got amped up. The jury selection was worse, the way they presented the evidence was worse. It was incredible to watch.

24:58 Landry Ayres: After a retrial Kevin was convicted of half the charges against him.

25:03 Kevin Ring: You see it on TV, but it’s devastating to be standing in a court room watching a jury come back and say guilty. So I went to sentencing. At that point, you’ve got me with the probation office, and they complete a report for the judge, they do sort of… It’s not much of an investigation, but they talked to my wife, they talked to me, I think they talked to my brother, they talked to the prosecutors, they basically say, “Okay, here’s what he was convicted of, here are generally the facts,” and then they interviewed me for other circumstances, like your family history, drug and alcohol problems, things like that.

25:44 Kevin Ring: When the probation officer finished his report, they sent it to both sides to say, “What are your recommendations, like, what do you think the guidelines add up to now based on these offenses?” The government said that based on their calculation, my guideline calculations are 42, a life sentence. And we were just shocked by that, and my judge, to her credit, really pushed them hard and just said, “How could you ask for this sentence for all these other people who are admittedly higher up in this conspiracy than him? It seems like you’re punishing him for going to trial.” And I’ll never forget, the prosecutor said, “We’re not punishing him for exercising his right to go to trial, we’re punishing him for not pleading and cooperating,” and everyone just said, “It’s the same damn thing, it’s just this other side of the same coin.”

26:38 Landry Ayres: This went back and forth and back and forth until finally the prosecutors buckled.

26:46 Kevin Ring: So I finally went to sentencing, my range was three to five years and they asked for, I think, I forget what they asked for at that point, three‐​and‐​a‐​half or four years. We asked for probation and I end up getting 20 months and again, sentencing is one of those surreal things. You just can’t, everyone you love is in the court room crying and you’re trying to speak to this judge who you have never talked to and has your life in her hands, and so I was sentenced and then I got 20 months and then she let me stay out pending appeal. So, we appealed the DC circuit, the Supreme Court, all the way up. And then when I finally lost all the way, then I had to report for the sentence.

27:25 Kevin Ring: I had never been away from my kids for more than two nights in a row, so the idea of being away from them for a year‐​and‐​a‐​half was devastating, but I also knew this was not the crowd I should be complaining to. So, I didn’t, I didn’t… There was a lot of self‐​pity at least that I shared with people, but that was very difficult. And you are constantly mindful of how many days and hours you have left. The guys who are there for 20 years will still tell you almost to the day how long… How much longer they have left. And then you wait for visits, which aren’t easy either, because then you have to watch your kids walk out of the visiting room. That is all you’re thinking about is going home.

28:15 Landry Ayres: At the end of the day, no matter what you think of Kevin and his actions, it raises a lot of questions about punishments fitting crimes, especially for those in situations much worse than his, of which there are many, and Kevin is aware of this. If this could happen to him, who else could it happen to: You, me? And is there anything we can do about it?

28:42 Lucian Dervan: I think we think back to the founders and the idea of creating our criminal justice system and all the rights that we put into our system because of our experiences historically. I think that that’s not what was intended, I don’t think we ever wanted a system that was efficient, first and foremost, I think what we wanted first and foremost was a system that was just, that was accurate and that we could rely upon.

29:07 Clark Neily: Prosecutors want jurors who are ignorant of the jury nullification slash conscientious acquittal role that jurors have played again through more than a thousand years in American and English history. So they don’t want jurors that know that. And so, if we could restore that knowledge, if we could make today’s juries have the same kind of information that founding era jurors would have had, then what will happen is that more defendants will say, “Hey, I don’t think that’s a good offer. I’m not gonna take that plea offer, I’m gonna take my chances with this jury.” And I think what will happen is prosecutors will discover that, in many cases, they are not willing to take that risk and they will improve their offers, they’ll make better plea offers. And the other thing they’ll do, is they’ll bring fewer cases.

29:47 Molly Gill: A lot of times, the community just wants bad people to be locked up, and that’s a really understandable reaction, and I’d be worried if the community didn’t feel that way, but I think in that we have to remember that there are real people involved in this process, and that the system can be full of abuses.

30:10 Kevin Ring: I think people think, “Well, what’s wrong with that? What’s wrong with them threatening long sentences if it makes a guilty person plead sooner, avoid the tax payers having to pay for a trial, forces them to cooperate against somebody else who might be doing something bad, isn’t that a good public safety win, that we’re getting information and we’re avoiding the cost?” I do believe, I’m still somewhat of a law and order guy. I do want people to be kept safe. We do have to have a system of holding people accountable. That doesn’t always mean prison, it doesn’t always mean we should measure accountability in the number of years in prison, I think we’ve become a little callous to that. We have this ethos in this country about better a hundred guilty men go free than one innocent man go to prison. And I would just add to that, that we shouldn’t want anyone to spend a day in prison more than they have to. It’s a necessary evil, but it’s an evil.

31:07 Landry Ayres: Thanks for listening to The Pursuit. If you like The Pursuit, please rate and subscribe to us on Apple podcasts, Spotify or wherever you get your podcasts. The Pursuit is a project of lib​er​tar​i​an​ism​.org and the Cato Institute. Music by Cellophane Sam. If you’d like to learn more about libertarianism, visit us on the web at lib​er​tar​i​an​ism​.org.