Inauguration Week seems like an opportune time to think how much more just the Department of Justice could be if President Biden took the bold step of putting a libertarian in charge of it. As I’ve written before, our criminal justice system is fundamentally rotten—it punishes vast amounts of morally blameless conduct, uses coercion-fueled mass adjudication to perpetuate mass incarceration, and insists upon a policy of near-zero accountability for its own transgressions. Indeed, it is doubtful whether any American institution inflicts more injustice than our so-called criminal “justice” system.
One might argue that because the vast majority of criminal enforcement occurs at the state level there’s not much point in focusing on the federal system. I disagree. The U.S. Department of Justice looms large over the entire criminal-justice landscape by establishing norms, setting examples, providing oversight, and offering—or withholding—financial incentives to other agencies and jurisdictions. For better or worse, DOJ represents a kind of industry gold standard for criminal justice. And that’s disturbing because, as discussed below, many of DOJ’s standard practices are astonishingly unjust.
DOJ is a sprawling, $30 billion-a-year agency that wears many hats. Accordingly, it would be impossible to provide a comprehensive list of proposed reforms in a single blog post. But one of the most consequential things DOJ does—and an area in particular need of fundamental reform—is the enforcement of federal criminal laws. On that front, a libertarian attorney general would be well-advised to address three specific issues: accountability, prosecutorial tactics, and institutional culture.
1. Accountability. The lack of accountability among federal prosecutors is simply astonishing. Perhaps the most stark—but by no means isolated—illustration is the Ted Stevens case, in which prosecutors systematically cheated their way through the prosecution of a sitting U.S. senator, got caught, and were subjected to no meaningful discipline of any kind.
Unlike other federal agencies, allegations of misconduct against DOJ lawyers are not handled by the Department’s inspector general, but instead by a notoriously lax in-house entity called the Office of Professional Responsibility. Among other things, OPR has a policy of not disclosing the identity of prosecutors whom OPR itself has determined have committed willful misconduct—which is a remarkable stance for an agency that routinely arranges media-saturated “perp walks” for arrests of high-profile targets like Roger Stone.
As bad as it is to have a toothless, in-house lapdog in charge of professional responsibility, the single greatest impediment to accountability is the judicially confected doctrine of absolute prosecutorial immunity, which is exactly what it sounds like: a legal rule that makes it impossible to sue prosecutors for even the most egregious misconduct—such as suborning perjury, deliberately suppressing exculpatory evidence, or framing people they know to be innocent—committed within the scope of their prosecutorial duties.
A libertarian attorney general could do several things immediately to impose a measure of accountability on federal prosecutors:
- Require prosecutors to waive prosecutorial immunity (which is a personal defense that defendants can—and sometimes do—choose to waive) as a condition of working cases. Those who prefer not to waive immunity can be given various administrative tasks while their more confident colleagues handle actual prosecutions.
- Direct the Office of Professional Responsibility to stop anonymizing its completed investigations and start publicizing the names of misbehaving prosecutors as zealously as DOJ trumpets its other work, such as announcing the filing of charges against presumptively innocent citizens.
- Implement a policy of automatically referring prosecutors to the relevant bar associations for any breach of professional ethics.
2. Prosecutorial tactics. Many of the tactics used by DOJ prosecutors—especially to induce people to waive their constitutional right to a jury trial and plead guilty, which more than 90 percent of federal defendants end up doing—are simply shocking. Among other things, prosecutors routinely:
- Stack charges and invoke mandatory minimums in order to increase a defendant’s exposure to a lengthy prison sentence;
- Threaten defendants with a massive trial penalty (i.e., the difference between the sentence offered in exchange for a guilty plea versus the sentence imposed if the defendant goes to trial and loses) if they refuse to waive their right to a trial;
- Threaten to indict a defendant’s friends or family members if the defendant refuses to plead guilty;
- Give “exploding” plea offers that are automatically withdrawn if the defendant exercises certain rights or takes too long to decide;
- Withhold evidence favorable to the defense during plea negotiations knowing that it will have to be produced if the case goes to trial.
To take just one recent example of these brutal tactics, prosecutors in the Varsity Blues college admissions scandal are threatening defendants with twenty years in prison while offering sentences of mere months to those who plead guilty. I have documented the many coercive levers available to prosecutors at greater length in this recent law review article; suffice it to say that it’s no accident that more than 97 percent of federal criminal convictions today come from guilty pleas rather than constitutionally prescribed jury trials.
So what could a libertarian attorney general do to level the playing field and make federal criminal prosecutions more fair?
- Eliminate plea “bargaining.” Other countries, including England, provide a statutorily prescribed discount to defendants who agree to plead guilty; there is no haggling, and the amount of the discount is typically between 15 and 33 percent—a far cry from the 12,000 percent discount (or markup, depending on how you look at it) being offered to Varsity Blues defendants.
- Adopt a policy of open-file discovery as a handful of states, including North Carolina, have done, so that prosecutors do not get to pick and choose what evidence they consider sufficiently material that they are constitutionally obliged to produce it before trial under the so-called Brady rule.
- Provide that no prosecutor may expose a defendant to a mandatory minimum sentence or a sentence exceeding five years without prior approval from Main Justice, and part of the approval process will be a citizen review panel consisting of ordinary Americans, including at least one person who has served significant time and knows from firsthand experience what a lengthy prison sentence entails.
- Adopt a strong presumption against pretrial detention and only seek it where there is a truly exceptional safety or flight risk.
3. Institutional culture. A major part of the problem is that people who work within the criminal justice system come to accept as perfectly normal and unobjectionable the kinds of policies and tactics described above, such as letting misbehaving prosecutors off with a slap on the wrist (if that) and applying such extraordinary pressure on defendants to plead guilty that almost no one chooses to exercise their constitutionally guaranteed right to a trial anymore. It is of course impossible to change institutional culture overnight, but there are several things a libertarian attorney general could do to help the Department of Justice better live up to its name:
- Establish a policy that DOJ will not indict more cases than it has the resources to take to trial in a given year, and make clear to line prosecutors that they will be rewarded—not penalized—for taking more of their cases to trial rather than resolving them through guilty pleas.
- Create an exchange program with Federal Public Defender offices and make clear that prosecutors who avail themselves of the valuable opportunity to spend part of their career on the defense side will be compensated and promoted accordingly.
- Undertake a comprehensive study to determine the leading causes of false convictions and require all prosecutors to receive annual training on how to avoid them; also require all prosecutors to read the book Blind Justice, by former federal prosecutor Mark Godsey, that describes the psychology of wrongful convictions and documents in horrifying detail numerous examples of prosecutors who convicted innocent people.
- Convene a study group of ordinary Americans from all walks of life and educational and socio-economic backgrounds and have them work their way through the federal criminal code (which is actually something of a misnomer since federal crimes are strewn throughout the United States Code and the Code of Federal Regulations) and test them on their comprehension of those statutes—then decline to enforce any law that a significant portion of the study group had difficulty understanding.
- Enforce campaign-finance laws against members of Congress with the same ruthless zeal as drug laws are currently enforced—including the use of sting operations, snitches, and charge stacking—until Congress agrees to rethink the drug war.
The bad news is that our criminal justice system is fundamentally broken and unjust. The good news is that criminal justice reform represents a vast orchard of low-hanging fruit—policies that could be adopted overnight and would ameliorate some of the system’s worst pathologies and realign many of its most perverse incentives.
Maybe putting someone whose core value is liberty in charge of an agency whose core mission is depriving people of it isn’t such a crazy idea after all.
Commentary by Clark Neily. Originally published at Cato At Liberty. https://www.cato.org/blog/what-libertarian-attorney-general-could-do