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Presumption of Innocence - Episode 88

Episode 88 • 7th July 2026 • Fox Rothschild: The Presumption of Innocence • Matt Adams & Matt Lee

Presumption of Innocence Ep 88 (Matt Adams & Clark Neily)

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Speaker: The views expressed in this podcast are those of the participants and should not be considered the views of Fox Rothschild LLP or its attorneys. This podcast is for informational purposes only, is not legal advice, and does not create an attorney-client relationship

Matt Adams: Welcome back to The Presumption of Innocence, a podcast brought to you by the White Collar Criminal Defense and Government Investigations Practice at Fox Rothschild. I'm your host, Matt Adams. Our guest today is Clark Neily. He's a senior vice president for legal studies at the Cato Institute, where his work focuses on constitutional law, overcriminalization, coercive plea bargaining, and police accountability.

Before joining Cato in: 2017

It is my absolute pleasure to welcome Clark Neily to the program today, and Clark, before we get at it, I just really want to set the stage for our audience. On this podcast, we so frequently examine the gap between what our Constitution promises, the idealistic side of what those constitutional rights look like, and what our criminal justice system actually delivers in practice, and there's often a significant gap, and that delta is something that I know your work is trying to close.

I'll just start with an anecdote. Yesterday, I was in court yesterday morning on a case where I know that my client is overcharged. There is a set of facts that is alleged and, and charged and indicted, and there is a set of facts that occurred. And I had a conversation in the hallway of a courtroom that I imagine happens every day in criminal justice systems throughout the country, where a prosecutor said, "But yeah, I'm going to be able to tell a jury, because they're not going to like your guy, that he committed this higher-level offense that's going to put him in jail for a mandatory term with no early release."

And she was using it to bully my client and I stuck to my guns. I said, "Listen..." At one point, I felt like I was really lecturing her on what her role in this constitutional system is by telling her that it's not her job to overcharge so she can get some plea bargain out of my client. It's her job to do justice and to direct what the facts dictate and not what she wants to use as leverage in some kind of negotiation.

How big of a problem is that very scenario in your system based on your scholarship in, in our system, rather, writ large, in our criminal justice system? How big of a problem is a prosecutor doing exactly what I experienced yesterday?

Clark Neily: Well, I think it's a huge problem. And I think, formally you're right.

It is the job of a prosecutor to do justice, but I don't think that's been the real job of prosecutors for decades. The real job of a prosecutor, I think, if we're going to be honest about it, is to obtain criminal convictions at the lowest unit cost possible. And I would say we've really gotten to a point where it's not just a professional failure if a, you know, prosecutor fails to get a conviction.

I think it's fair now to say that if a prosecutor has to take a case to trial in order to obtain a conviction, that itself is a kind of professional failure because more than 90% of all criminal convictions come through so-called plea bargains, which of course are much cheaper much more efficient,

they consume far fewer resources. And so, you know, I understand that prosecutors will say to your face, "Oh, my job is to do justice," and I understand in some sense they actually mean it. But the reality of the situation from my perspective is that the primary job of a prosecutor is to induce people who have been indicted to plead guilty and save the government the cost expense and uncertainty of a trial.

Matt Adams: It's so remarkable that you say that because that very same prosecutor in that very same hallway conversation that I'm recounting for, for the audience right now, said something to me that will stick with me probably for the rest of my career. I was talking about some motions I was planning to file by virtue of the fact that I believed, and, and under New Jersey law, there is a right in a grand jury under state law to have clearly exculpatory facts under a case called_ State v._

_Hogan_ presented to a grand jury. And I was suggesting telling her that I'm prepared to file motions. In fact, as I said to her, they're drafted already about the fact that she didn't present certain clearly exculpatory facts to the grand jury. And in what can only be described as remarkable, I, I think, almost speechless as a result of it.

She said to me, "Well, you get paid to file motions. So, you know, if I can avoid filing oppositions to your motions, I will. So let me go talk to the alleged victim here and see if there's something we can't work out." To me, that's not justice. To me, that's a fundamental problem and a microcosm for your scholarship and, and, and your work at the Cato Institute.

Clark Neily: Yeah, no, it's, it's a huge problem. And I, I think that we should adopt the terminology of mass plea bargaining. That's, that's what our system is. Our system is one of mass plea bargaining. It is oriented around that idea that the vast majority of criminal cases should be resolved through a so-called plea bargain.

Many people have pointed out, you know, the system... I don't believe the system would grind to a halt if we didn't have mass plea bargaining, but it would certainly consume greater resources. Prosecutors would have to decline more cases. But I, you know, I think the idea that it's perfectly fine if the government says, "Hey, you know, I think that you committed a crime, and I'd really like to put you in a cage as punishment.

But jeez, not if we have to go to the trouble and expense of a stupid constitutionally prescribed jury trial. What's that about?" And that really has become the attitude, I think, of many if not most prosecutors and judges that a defendant who insists on exercising their right to go to trial is somehow doing the system and the public a disservice by wasting everybody's time and, and trying to, you know, fight off the inevitable, which is that you did it, you're going to get convicted.

Why do we have to mess around with this, you know, stupid, expensive, and time-consuming trial? You know, that's, that's just selfish. And I, I think it's, I think it's a national disgrace

Matt Adams: Yeah, I mean, the federal system, there's a well-documented phenomenon called the trial penalty, where sentences for those that elect to engage in their constitutionally protected right to go to trial and to test the presumption of innocence, the namesake of our podcast here, get penalized at the time of sentencing because they've elected and inconvenienced the system.

So let's go right from that stage-setting, anecdotal-type stuff, let's dig right into the constitutional text, because I know that so much of your scholarship and so much of the work you do at a libertarian think tank is really derived around getting back to a place where we actually put meaning behind what these constitutional ideals are supposed to stand for.

So I really want to just start at the beginning. You look at the Constitution, the Bill of Rights. One of the things that immediately jumps off the page is just how much of it is devoted to the administration of criminal justice. There is a plethora of provisions in the 4th, 5th, 6th, 7th, and 8th Amendments, among others, that address specific aspects of the criminal process that really present a framework for how the criminal process is supposed to unfold.

But by virtue of the overcharging and the extortionary plea bargaining that goes on in courtrooms across this country, we've lost some of that. And your work points out that the Bill of Rights contains more ink on the subject of juries than any other single topic. What does that tell us about what the founders envisioned for the criminal justice process to be like with such a robust emphasis on the notion that a jury would ultimately dictate guilt or innocence?

Clark Neily: Yeah, there's a lot to cover there. But the, if you distill it down to the essence what is absolutely clear is that the framers of the Constitution meant to put citizen participation at the very heart of the administration of criminal justice. They would've been, I think, completely unable to comprehend a criminal justice system, and particularly a system of criminal adjudication from which ordinary citizens have been almost entirely excluded, which is our current system of course, because so few cases go to trial anymore.

And as we can talk about later, when those cases go to trial criminal juries are going to be both curated and indoctrinated so that they don't function the way that the founders meant for criminal juries to function basically as a kind of a conscience of the community and a lower house of a bicameral judiciary, which is how they saw the role of the jury.

And modern-day judges and prosecutors vastly prefer a criminal jury that's basically nothing more than a bunch of trained circus seals there to do a very limited job of just listening to the facts and applying those more or less robotically to whatever law is given to them by the judge.

That's a very modern conception of jury service. It is completely antithetical to the founding era role of juries. And you cannot overemphasize the centrality of citizen adjudication to the entire scheme of criminal adjudication in the US Constitution. And yet we've completely, you know, sort of turned our back on that whole design.

Matt Adams: And in examining some of your scholarship, you've noted the importance of jury trials was actually something that everybody agreed on.

You know, the founding generation of our country, the Federalists and the Anti-Federalists. It's as hard as it is to believe in the polarized society that we live in today, where we can't agree on anything.

Our Supreme Court can't agree on what they're going to have for lunch, let alone some of the decisional law that has come out. But it's remarkable when you think about it, how divided those factions were on almost everything. You know, as one scholar put it, "You'd be hard-pressed to find a constitutional issue that garnered more agreement among the founders than the right to a trial by jury."

So when you look at the text itself, Article III, Section 2 in particular, stating that, "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury" and that Sixth Amendment guarantee of a right to a speedy public trial by an impartial jury, you know, what was that constitutional design supposed to accomplish?

And how are we so distant from that ideal right now in the practical world where we are essentially dealing with a conviction machine where coercive plea bargaining has basically been the death knell to the jury trial?

Clark Neily: Yeah. Well, what's important to understand is that the founders of this country had direct firsthand experience with weaponized criminal justice.

The British Crown had engaged in a number of different ploys to essentially marginalize colonial juries to make it more difficult for colonists to assert their right to have their case decided you know, by a jury of their peers. And instead, many cases would be dragged into a British admiralty court where they would be decided by a Crown-appointed judge.

And you had laws like seditious libel, which basically spoils down to saying mean things about somebody in an exalted political position that were actual crimes at the time and were used to suppress political dissent. So the Framers had firsthand experience with all of this, and that's why I believe they were so emphatic about making clear that the government can only punish you if it goes through a jury of your neighbors, in effect.

Not just any jury, but 12 people who have to agree unanimously that not only did you commit the crime with which you are charged, but that you deserve the punishment that the government proposes to inflict. That's an extraordinarily high bar, and it was meant to be. And the reason why that institution that was so central to the constitutional design has been all but eliminated today is because the government has become so effective at inducing people to waive their constitutional right to a jury trial and simply plead guilty.

And we have a judiciary that has not troubled itself to develop any sort of coherent theory about where the line is between a constitutionally permissible inducement on the one hand to plead guilty, and an unconstitutionally coercive plea offer that is, you know, essentially you better take this or you'll regret it.

That essentially any rational person, even if they were innocent, would strongly consider taking the offer because the alternative is so dire. And I think that's, you know, self-evidently kind of the engine of all this problem is that we do know that plea bargaining in our system does sometimes become coercive.

We don't know how often, but we know that innocent people are sometimes induced to plead guilty to crimes they did not commit. That can only happen by virtue, I would say, of coercion. And we just... Basically, the judiciary's just sort of thrown up its hands and says, "Hey, don't look at us to protect you from coercive plea pressure.

That's just not something we're going to bother to try to do."

Matt Adams: You know, when I read your scholarship, in particular, I like this quote. Let me, let me read it to our audience, just if you don't mind. You write, "It's no accident that more than half of the Bill of Rights is devoted to the subject of criminal jury trials.

The founders' decision to put citizen participation at the very heart of the administration of criminal justice is unmistakable." The jury was supposed to do far more than find facts. In fact, I think the central thesis of most of your scholarship is, on, on this subject at least, is that there was a broader checking force that this jury was supposed to play.

Not dissimilar to the checking force that the Congress is supposed to have on the executive and the judiciary has on both of the political factions that comprise the executive and, and the legislative branches of our government. This jury trial was supposed to be the for all intents and purposes, the fourth branch of government,

if I am not mistaken when I read your scholarship. Is, is that really what you're arguing?

Clark Neily: Well, what I would say is the, the way the framers saw it is that the jury was in some sense the lower house of the judicial branch, just in the same way that the House of Representatives is kind of the lower house of our legislature.

It was the more populous institution. So you've got the judge and you've got the jury, and they in effect make up the two halves of our judicial branch. And the idea, as you correctly state is that juries would ensure that people not be punished for engaging in conduct that is not truly morally blameworthy.

I'll give you two examples. One at the-- that, that preceded the founding. I alluded to it earlier. This was a criminal prosecution of a New York publisher named John Peter Zenger for seditious libel, which again is just basically saying mean things about a person in a high political position, in this case, the Royal Governor of New York.

At the time this is: 1735

ctly right. That was right in: 1735

It's right up there with state-sponsored eugenics. This was a law, a federal law that required anybody with knowledge of an escaped slave to help return that person to bondage, and you could be prosecuted if you failed to do that. And this produced a tremendous amount of so-called jury nullification.

By the way, I don't use that term myself. I understand that it's the popular term, but it's inaccurate. Only a judge has the power to nullify a law. Jury can't do that. Jury can only acquit a defendant in a specific case. That doesn't nullify the law. The law remains on the books and can be applied in future cases

to future defendants. But think about a law as horrific and immoral as the Fugitive Slave Act, and thank goodness we have this understanding of the power of a jury to simply refuse to convict people even if they actually did violate the law, if the jury determines that in their judgment that law is either illegitimate on its face or that the application of that law to a particular person in a particular case would be unjust.

That is an absolute cornerstone of the American jury throughout history, and it's only in relatively recent years that there's been this sort of counter-revolution where judges and prosecutors have succeeded in purging juries of anybody who has any knowledge of things like jury nullification or jury independence, and I think it's been an absolute disaster.

Matt Adams: You make in, in some of your work a fairly provocative analogy back to the pre-Enlightenment era in Europe.

And at the time in, in, in that archaic, barbaric setting European countries employed judicially sanctioned torture to elicit confessions. And this basically solved the problem of cases that required testimony from multiple witnesses by simply just extracting it from this person who was tortured into making an admission of guilt.

That's fairly provocative stuff. While we don't see that per se in modern America, you've suggested that the modern plea bargaining system serves a disturbingly similar function. Can you unpack that analogy for us?

ark Neily: Yeah. So this is a: 1978

And in the article, he documents that, as you note in the Middle Ages for most felonies a person could only be convicted upon the testimony of two separate witnesses. So even if you had one person who witnessed somebody else stab another person, you know, in a brawl outside a tavern, that would be insufficient to convict.

And so as legal systems often do, they came up with a workaround, which was judicially sanctioned torture. You take the defendant, you subject them to torture, and you see if they will admit their complicity in the crime. Now, you know, these people were not stupid, so they understood that people would, you know, say almost anything under torture.

So they would ask them questions, you know, that only the perpetrator might know the answer to, like, "Where's the murder weapon?" Or, "Where's the body?" Things like that. They would attempt to corroborate these confessions. But at the end of the day, this becomes such a crutch for the system. It becomes such an appealing and efficient way to process cases that, you know, these kind of minimal guardrails fell by the wayside and essentially they just, you know, unilaterally tortured confessions out of suspects.

And if you look at the way the modern plea bargaining system works, it's not very much different. Where prosecutors are not allowed to use physical torture, but the the, the sheer number of levers available to a modern-day prosecutor to exert plea pressure is mind-boggling. It includes everything from pre-trial detention with or without something that is sometimes referred to as diesel therapy, where they drive you around from one facility to another so that you never get any sleep, you never sleep in the same bed twice, your family can't find you, your lawyer can't find you.

They drive you to exhaustion. That's all done deliberately to lower your ability to push back and to fight. As you mentioned earlier, that you can have charge stacking, where they expose you to, to dramatically more punishment than whatever it is that you did actually merits, so that they can then come down from that very high number.

They can evoke mandatory minimums so that the judge has no discretion to show mercy, etc.,, etc.. And again, what our system is just absolutely terrible at is in, in showing any interest in trying to estimate the total amount of pressure that's being exerted on a defendant so that we can really feel confident whether or not they have been coerced into pleading guilty.

And so I think that the way our system often operates with defendants exposed to, you know, decades or even centuries in prison, and then the prosecutor can turn around and say, "Oh, but if you plead guilty, we can knock this down to a couple of years," how is that really functionally different from physical torture in terms of the sort of the quantum and quality of pressure that's being exerted?

I don't see any real significant difference.

Matt Adams: Now let's take a hard pivot to how we got here. I think we haven't necessarily buried the lead. Coercive plea bargaining is central to at least your scholarship on this subject, and I would say I, I dare to put words in your mouth, but I think that you would probably say it's the root cause, if not one of the root causes of a system like the one we're operating in where the juries have sort of almost been read out of the law, if you want to go that far.

Plea bargaining is nowhere mentioned in the text of the Constitution. It was unknown at the founding, as your scholarship points out, and it arose in response to the need to process the rapidly increasing number of criminal defendants. Yet it, as you point out, has become overwhelmingly dominant in a mechanical way as a means by which to resolve the never-ending or seemingly never-ending conveyor belt of criminal charges at the state, federal, and local levels around the country.

So walk us through that history. How did something that was never contemplated, that the presumption of innocence and the right to a jury trial was always the front and center principal manner and mechanism by which a criminal case would be resolved since the founding of our nation. Yet now, if you look at the statistics, such a small percentage of cases actually go to trial before a jury.

Most are resolved by plea. How the heck did we ever get here? How did we create a de facto system, a conveyor belt-like mechanical system where this is the norm and juries are the exception?

Clark Neily: It's a great question. The, the history of plea bargaining in America is quite fascinating, and I'll try to do a kind of a very short summary version.

It, it first pops up in the Massachusetts Bay Colony or as best we can determine in in the, in the Commonwealth of Massachusetts and maybe also Rhode Island, associated with the enforcement of certain alcohol laws that had a unique quirk, which is that they were the first laws that anybody's been able to document that had mandatory minimums in them so that the judge had no discretion in terms of the penalty to impose.

And this put a great deal of power in the hands of prosecutors because now they have the ability to completely dictate the punishment that the defendant will receive if they're convicted. And therefore, they can also micro, you know, sort of adjust the amount of exposure that the defendant had.

And this appears to be sort of the secret ingredient that was necessary in order to open the door to plea bargaining, but it didn't catch on. It wasn't particularly widespread and it didn't come up in the context of other crimes where you didn't have mandatory minimums and so the judge retained discretion you know, to, to essentially impose a, a punishment that actually fit the crime As the country became industrialized, as we saw mass migration both internally in the wake of the Civil War and of course across both oceans from Europe and from Asia we had a kind of a simultaneous rise of things that were demanding judicial bandwidth.

ent of alcohol prohibition in: 1920

You've got lots and lots of people who are breaking the law every single day. Why? Because they still want to take a drink, and they do. And those cases are being prosecuted as well. So you've got an explosion in the amount of civil and criminal litigation in the courts. And what really seems to have opened the door to mass plea bargaining is the professionalization of both the prosecution of crimes and the defense of crimes.

So now you have the same sets of lawyers running into each other at the courthouse, appearing in front of the same judges. One thing leads to another, and they just start talking out in the hallway, "Hey, you know, maybe we don't need to take this case to trial. Maybe we can come up with some kind of understanding.

You know, my guy pleads guilty, you recommend a reasonable sentence, the judge signs off on it, everybody goes home happy that we didn't, you know, sort of waste each other's time." And that really seems to be how plea bargaining became professionalized and routinized to the point where it didn't take very long in urban areas, and I'm-- here I mean, like, by the end of the 19th century and certainly by the first third of the 20th century, that in urban areas resolving cases by plea agreement became the default.

So we went above 50% of convictions obtained through plea agreements you know, before the, the midpoint of the 20th century. And I think once that happens, what happens is that system actors, and here I mean particularly judges and prosecutors, come to look at criminal adjudication as a process, the, the natural outcome of which should be a guilty plea.

And it becomes the exception when a defendant refuses to plead guilty. And you look at this person and you say, "Well, what's so special about you? Why should you hold out? Everybody else pleads guilty. Why are you gumming up the system, consuming all these resources, and insisting upon a bespoke adjudication of the charges against you?"

Matt Adams: Yeah.

Clark Neily: And you would think that I'm being you know, overly dramatic or hyperbolic here, but I'm not. This is, in fact the, you know, the, the mindset that sets in. I remember reading in a law review article, somebody quoted a judge, I think in Chicago, who really laid into a defendant who went to trial, lost, and now the judge is imposing this, you know, really severe sentence.

And the judge says to the defendant, "You took up some of my time, and now I'm gonna take up some of your time." And once that mindset sets in, whether it's acknowledged or not, whether, you know, judges understand that they're supposed to pretend that that's not how they see things, once that mindset you know, enters into the system where everybody basically expects that, generally speaking, defendants should be pleading guilty and the going to trial is the exception, then all bets are off.

And I would say that it's only a matter of time before you arrive at a place that we arrived at by the, let's say early '90s, where you really do have a kind of a conveyor belt system of bargain justice, and above 90% of criminal convictions are obtained through plea bargains. At that point, you don't have a system of trials anymore or anything like it.

You have a system of mass plea bargaining.

Matt Adams: And it's not just an academic observation because it's the mindset of that prosecutor-

Clark Neily: Yeah

Matt Adams: ... that I dealt with yesterday in the story that I opened the program with today. And one of the things that actually took me by surprise is I think I overlooked in the course of my own studies how plea bargains really didn't have a historical role in the United States until mostly modern times.

rest in our country, like the: 1960

And that they didn't like the concept of plea bargaining because they believed that it interfered with that fundamental right to a jury trial that's so prevalent throughout the Bill of Rights. But eventually, with a series of decisions, the Supreme Court capitulated. I think the _Santobello _case and Chief Justice Warren Burger, he wrote, and I'll quote, "The disposition of criminal charges by agreement between the prosecutor and the accused is an essential component of the administration of justice.

Properly administered, it is to be encouraged." Now, far be it for me to challenge the preeminent Chief Justice Warren Burger, but he did qualify that statement by saying, "Properly administered, it is to be encouraged." That really was what opened the floodgates, is, is that _Santobello _decision. And I think the central thesis you, you present is that it's not been properly administered.

Once those floodgates were open, it was the Wild West. What changed? What, what about the practice of plea bargains once it was sanctioned by the highest court in the land changed to create a system today where I can rattle off a number of real-life examples with real-life defendants whose real-life liberty was at stake, including just yesterday, where this system has basically subsumed the intended structure of the jury trial?

essentially, that's a: 1971

So something in the judicial mindset, I think, changed. And there's a kind of an almost childlike innocence in the Supreme Court's embrace of plea bargaining. Like, they can't even see what's coming in terms of, you know, the w- the amount of pressure that's going to be exerted on, on defendants. And we can get into a bit more of that in a moment.

is: 1971

And the prosecu- So, so he's looking at a two-to-10 year sentencing range if he gets convicted. Prosecutor offers a five-year plea. Hayes wants to go to trial. He thinks he's got some defenses. And the prosecutor says, "Well, if you, if you invoke your right to trial, I'm going to go back to the grand jury and get a fresh indictment where I'm going to include a you know, a charge that you're a habitual offender because I know you got two convictions already."

Matt Adams: I got that threat, I got that threat yesterday, too. You're, you're- I'm going to go back to the grand jury. I'm going to fix what I didn't do right the first time, and I'm going to pile on some more. Stack those charges. They--

Clark Neily: Yep. And, you know, it worked back then, and it works now, right? And so the, But, but i- in, in, in the_ Bordenkircher_ case, the, this exposed, this increased Paul Hayes' exposure from 10-year max to a life sentence mandatory life sentence, which is exactly what he got when he went to trial and was convicted.

And the Supreme Court looked at it through this bizarre lens of not whether the differential between a five-year plea offer and a life sentence was coercive, because obviously it is but instead whether there was some animus on the part of the, the prosecutor. And, like, what, what happened in this case is kind of even more scary because at least if the prosecutor hates you personally, that's, like, a thing that most defendants don't have to worry about.

This was just the machine being the machine and a prosecutor looking at their, you know, sort of toolbox of levers that can be applied to induce a guilty plea and applying whatever tools it takes to, to get there. And the, you know, I, in some ways I think-- So, so two points I want to make you know, before we proceed.

One is, one of the biggest mistakes that people make is they look at these levers that are available to prosecutors to induce a plea as if they only apply sort of like, discreetly one at a time. You have to look at the overall combined effect of the levers, of being locked up pretrial, being unable to coordinate your own defense, unable to get a good night's rest, of being exposed to vastly more punishment than your conduct actually merits, being threatened with a mandatory minimum that the prosecutor can drop at any time because they know that you don't really deserve to go to prison for 20, 30 years or life, right?

So it's the combined effect of all these levers that is what we need to keep an eye on and that judges completely ignore. And I'll give you one other one that I think is, in some ways distills the essence of what a horrifying system it's become, which is that something like 10 or 11 out of our 12 federal courts of appeals have looked at this question of whether it is permissible to threaten to indict a defendant's loved ones, like their spouse or a relative, simply to exert plea leverage on the defendant.

So you have to have probable cause, but of course that's not hard to come up with. You don't really have any independent law enforcement interest in the relative. In other words, you wouldn't go after this person if there wasn't some, you know, alternative or ulterior motive.

But you threaten to indict a person's wife, let's say, if they refuse to plead guilty for whatever it is you tried. That is horrific. That really is equivalent to, to I would say judicially sanctioned torture. And the last thing I'll say is that one of the most haunting questions I've asked on social media is for prosecutors to identify any lever that the law permits them to apply in order to try to elicit a guilty plea that they would not apply because they personally think that it would be immoral, unethical, or otherwise unjust to apply that much leverage.

I've never had a single prosecutor in any setting identify any lever that is lawfully available to them to exert leverage to get a plea that they wouldn't apply, and I think that, that horrifies me.

Matt Adams: In more recent times, you know, Chief Justice Burger made his observations, but in more recent times, Supreme Court Justice Anthony Kennedy observed, quote, "Criminal justice today is for the most part a system of pleas, not a system of trials."

criminal cases in fiscal year: 2018

onvictions in that same year,: 2018

And that data, which I look at regularly from the commission, has continued to increase since '18.

Despite a global pandemic that dramatically upended the criminal justice system. If that wasn't stark enough, you wrote last year 98.3% of federal convictions came from guilty pleas. And in the Southern District of New York, often referred to as the Southern District, and they love to remind you that they are of the more sophisticated and aggressive districts in the entire country.

It's one of the busiest federal courts that there is in our system. A judge only saw one criminal trial in that year That is remarkable. At the state level, the number of people who elect to bypass the right to a criminal jury trial hovers somewhere around 95%.

Those statistics are striking. Can you elaborate against the backdrop of those statistics and all of our discussion about coercive plea bargaining and the types of levers that prosecutors have and all the chips that they can stack against a criminal accused, can you elaborate on precisely what's sacrificed in the name of efficiency?

Precisely what these people are foregoing as a byproduct of their decision to take the easy road, a judicially sanctioned easy road at that.

Clark Neily: I think it would be impossible to list all of the things that we lose in a system of mass plea bargaining. I'll try to, I'll try to list some of the highlights.

I think first and foremost what we lose as a society is the ability to have confidence in the integrity of any given criminal conviction that was obtained through plea bargaining. I don't mean to suggest that there's reasonable doubt about every single guilty plea, and I don't mean to suggest that most people who plead guilty are innocent.

What I mean to say is that when a criminal conviction has been obtained through plea bargaining in a system that has such an extraordinarily high tolerance for coercion as ours does, there is no particular reason to have confidence in the integrity of any specific guilty... The person may be guilty, they may not, but there's no way for you to be confident that that person really is guilty.

You have to take it on faith. And once you understand the amount of pressure that prosecutors not only can but routinely do apply to elicit guilty pleas, what you'll realize is that it is more like- I would say it's more likely than not in our system at this point, particularly in the federal system, than an innocent person will plead guilty because prosecutors have the ability to expose them to so much time.

At a certain point, it becomes perfectly rational for an innocent person to plead guilty. I'll give you a concrete example. Some of your listeners may be familiar with the so-called Varsity Blues investigation from it was, like, six years ago. This was the Hollywood celebrities that did all these, you know, kind of janky things to get their kids into preferred colleges.

That conduct ran, ran a whole spectrum from hiring somebody to fraudulently take the SAT for your kid all the way up to just, you know, cutting an unusually large check to the sailing team or whatever. The government indicted about, I think about 54 defendants in Varsity Blues. Fifty of those pled guilty, four went to trial.

The standard plea offer in those cases was about two months. More for some people, less for others, but about two months. And defendants were specifically threatened that if they refused the two-month plea offer, the prosecutor would go get a superseding indictment that would include a new conspiracy to commit fraud charge that would expose them to a maximum of 20 years.

Now, they know they're not going to do 20, but they might do five or 10. I'm a parent. If I were charged-

Matt Adams: All

generally people that had no criminal histories, by the way.

Clark Neily: No criminal histories, right. And, and you know, I'll tell you, I don't have a criminal history, but I'm, I'm, I'm a parent, and if, if the federal government threatened me with a completely, you know, fictional indictment for something I didn't do, but for which I could plausibly do five or 10 years in prison and then gave me the chance to resolve it with two months in j- I'd probably take it.

I probably have an obligation to my children to take that offer to avoid the possibility of a false conviction after trial, and they grow up without a father? To hell with that and guess who knows that? Prosecutors know that, judges know that, and criminal defense attorneys know that. And I'm not saying that, you know, criminal defense attorneys are complicit in all of this, but what I am saying is I don't know a single criminal defense attorney I've ever spoken to who has never in their life had to plead an innocent client in order to avoid, a, a, you know, life-destroying trial penalty.

And that, in some ways, is our system distilled to its essence. And I'll just add one more thing that we're losing. It's not just that we can't be sure whether somebody's guilty when they're induced to take a plea bargain. Every single one of us loses the opportunity to participate in one of the most important and meaningful acts of civic participation that this country has to offer, which is jury service.

If you go vote in an election, your vote is not going to decide anything in any election, let alone a presidential election. It's not even going to have a minimal effect on that. But you go serve on a jury, you may very well hold the life of a fellow citizen in your hands, and there is no more significant civic act than that.

And people come away from jury service feeling reconnected to this country, feeling revived and refreshed as citizens, and understanding for the first time what it really means to be a citizen. And we have taken that, virtually snatched that entire process out of the system so that almost nobody gets to serve on a criminal jury, and I think that is a disaster.

Matt Adams: In your scholarship, you've taken a bit of a pragmatic approach, I think foreshadowing the type of criticism that you might get for being such a rabid defender of the jury system.

I think you actually head-on understand the pragmatic reality that plea bargaining, to some extent, is absolutely necessary in our system. In one of your writings, I believe you said that America's criminal justice system would quote, "grind to a halt without plea bargaining because it lacks the resources to afford that constitutionally secured right to a jury trial."

So we've kind of built this glass house or this glass ceiling for ourselves in this country. And the system in order to function requires people to waive the very rights that we've promised them. What does that tell us about our system? What does that tell us about who we are and our constitutional ideals if this is merely an aspirational thing that we know we cannot function as a society if we don't have people plea bargaining, despite all the problems you've dedicated your life's work to highlighting about the plea bargain process?

Clark Neily: Yeah, that's a lot to address. Let me put it this way. So I do not actually believe that our system would grind to a halt without plea bargaining. Other people have said that, and I've paraphrased that. But think about it this way. Would we really stop prosecuting suspected murderers? Would we really stop prosecuting armed robberies if we had to take those cases to trial?

Of course not. We would still you know, come together and, and, you know, essentially devote whatever resources were necessary to adjudicate those cases. What we would do almost certainly is start dropping a bunch of cases that we currently pursue. Why? Because it's not worth it. I think about it. I, there's a, there's an actual case, I, I read about this in the New Orleans Advocate.

This is, like, seven or eight years ago. They were prosecuting a waiter at one of the fancy restaurants in the French Quarter for, you know, allegedly selling a bag of weed. But they couldn't impanel a jury because they, the prosecutors basically got laughed out of court when they told the jurors what the case, or the prospective jurors, what the case was about.

That's exactly the right reaction to have if you're, if, if somebody's gonna waste a couple of days of your time on a stupid, you know, possession with intent to sell marijuana case in New Orleans where they have actual crime, you should laugh at the prosecutor and that's good information, by the way, for them to get.

So what I would say is that we've found ourselves in a position where there, there's a kind of an incredible hubris to our system and the people who work within it, which is that you look at the... To go back to our earlier discussion, you look at the amount of detail in the Bill of Rights. Bill of Rights is 482 words, about half of which are devoted to the question of criminal adjudication.

That's a lot of detail to put in a very small amount of space because they were so concerned that we get that right. It's one of the most challenging things in all of human society to get right. And the whole theory of plea bargaining, especially mass plea bargaining, is, "Oh, yeah, well, you know, of course there's this very elaborate procedure that's spelled out in the Bill of Rights for resolving criminal charges, but did you know there's another procedure that they didn't even bother to mention that's just as fair, just as efficient, and just as reliable?

All you do is you figure out who you think did the crime, and then you just ask them. And then if they did it, they'll say yeah. And you don't have to go to the expense and inconvenience of a jury trial. That is bonkers. That is absolutely nuts. And it is the animating insight, or it's the core conviction of our process of mass plea bargaining that, yeah, sure, you could provide all this process that's spelled out in the Bill of Rights, but it's just as reliable, it's just as fair to simply give somebody the opportunity to admit that they committed the crime and then impose a punishment after giving them some benefit for, you know, being such a stand-up citizen.

I think that is absolutely nuts. It is insane to suppose that approach is just as fair, just as reliable, and just as, you know, reasonable as the one spelled out in the text of the Bill of Rights. But I'll tell you what, you're not going to get to be a judge today if you don't embrace that basic idea that there's no real problem with mass plea bargaining.

Good luck finding yourself on the bench if you take issue with mass plea bargaining.

Matt Adams: Yeah, and, and the consequences for justice and innocence and the deprivations of liberty, I mean, we could spend an entire day talking about that. In episode 52 of this very program, we heard from Rodney Roberts. He's now a re-entry coach with the Innocence Project, but he pled guilty with 20 minutes to decide a, a question of whether he would actually do it, some poor legal advice, some pressure, some promises about spending less time in jail, and he served 20 years incarcerated on the promise from prosecutors that this was the right way to go or he was going to be in prison the rest of his life.

Those stories are endless in our system, and it's appalling, and it should shock our viewers' consciousness that that actually occurs. And I think your work has shown that a big portion of this, this phenomenon of wrongful convictions and this almost impossible to get your head around phenomenon of an innocent person pleading guilty is directly correlated, if not primarily correlated, to the coercive plea bargaining system that has emerged as the primary means by which criminal cases are disposed of in this country.

But in a talk that you gave at the University of Chicago, you were particularly animated, and if I can just quote your statement for our audience. You said, "I actually believe that our criminal justice system is, in fact, a raging dumpster fire of injustice. I don't believe that our criminal justice system merits our support As a people, I don't think it has integrity." Unquote. That's a pretty strong statement from a constitutional lawyer who has dedicated their life to defending and protecting those constitutional principles. Before we get into how we fix this dumpster fire, what brings you to such a dramatic conclusion that this thing is something that has to be rebuilt entirely?

Clark Neily: Yeah, no, I appreciate that. I stand by those words. And, and I will say this. Once you have met enough people who have been induced to plead guilty to crimes that they did not commit, and I would say I'm at least up to half a dozen now, the horror of what they experienced of, of being relentlessly tormented and threatened and pressured to waive their constitutional right to a jury trial and to be put in a position where if they want to make sure that they ever see their families again, they have to seriously consider pleading guilty to something that they did not do and stand up in front of a judge under oath and say, "I committed this crime that I did not really commit," it becomes very difficult, I think, to have much faith in our system anymore.

Defenders of the status quo will say, "Well, you know, he doesn't know for sure whether they were guilty or innocent, and, you know, juries sometimes falsely convict too, so that there's no perfect system," etc., etc.

Now, I have responses to all of that, but let's just put that to one side. It is, once you have had a conversation with somebody who has been induced through these relentless threats, wildly disproportionate punishment... And I, I'm thinking of one guy in particular who was charged with a bunch of business crimes that he never committed, and the prosecutors were adamant that they would seek to keep him locked up for the rest of his life.

And they had a very plausible ability to do that if the jury misunderstood this guy's business practices and convicted him falsely, which they could well have done. And they eventually came down to 21 months in a minimum security camp. Well, if you think this person really engaged in that much fraud that it is morally permissible to threaten them with what amounts to a life sentence, who the hell are you to turn around and then offer them 21 months and we're square?

Like, either you're lying about you know, the depth of your conviction that they committed these very serious crimes, or you are one of the most irresponsible people on the face of the planet to let this person go with what amounts to a slap on the wrist, but you can't have it both ways. And so I do think that the system is a raging dumpster fire of injustice, and I would say that the primary basis for that, in my view, is the complete indifference of judges, prosecutors, and other system actors to the demonstrable presence of coercion in mass plea bargaining.

We can't pin it down. We don't know exactly where it does or doesn't enter into a given a plea negotiation, but we know it exists sometimes, and we know that nobody in a position to police or eliminate coercion is, you know, lifting so much as a finger to try to prevent it from happening.

And I think that's a disgrace.

Matt Adams: So let's turn to the solution, because you're not just sitting here, you know, yelling hyperbolic statements about dumpster fires. You're actually trying to build consensus around some of the solutions, and I think that's the most constructive part of your work and, and something I give you a lot of credit for.

You've proposed several specific reforms to address this coercive plea bargaining problem. The first is what you call plea integrity units, and I love this idea. These would be independent bodies charged with reviewing and monitoring plea agreements before they are accepted, before a judge says it's, "Yes, I'm accepting your plea," because that is virtually the end point.

You know there's other portions of due process that happen after they're, like, sentencing and sentencing investigation reports and things of that variety. But once the judge accepts a plea, it's nearly, I, I say 99.9% impossible to undo that plea. Absent some really compelling circumstances, usually surrounding malpractice of an attorney and ineffective assistance of counsel.

But this notion of a plea integrity unit is really fascinating. Independent bodies charged with reviewing and monitoring plea agreements before they are accepted, and I think you put it right, kicking the tires to smoke out potentially problematic tactics, such as overcharging, stacking, improper use of pretrial detention, threats related to mandatory minimums, or other trial penalties to induce cooperation and demanding some kind of inappropriate waivers to defendants.

Just this week a court has ruled that waivers of appellate rights associated with plea bargaining in the federal system were unenforceable, which I think is a really positive step, Clark, towards eliminating some of these circumstances that lead to this, this dumpster fire, this problem that you highlight throughout your work.

Can you walk us through specifically what your concept would entail? How would this plea integrity unit interact with the players in the criminal justice system? What would their role be? Who would the people be? And is there anything out there that's at least as a pilot program trying this out for size?

Clark Neily: So, the answer to your first question is no. It has happened sporadically maybe in a couple of cases. But let's take a step back and, and just think about a world in which you are in charge of something very serious and very important. So, you know, I, I don't know if anybody's, anybody's ever read the biography of a guy named Dick Marcinko, who was the founder of SEAL Team Six.

But he, he has in his memoir an interesting chapter in which he developed what's called a red team that essentially went out around testing security of naval bases and, and often to the intense embarrassment of the commanding officer, whoever's in control of the base, because they often were quite unsecure, despite the fact that they stored, you know, nuclear weapons, cryptographic technology, secret submarines, things like that.

So there's basically what we know about human nature is there's a really big difference between when you actually care whether your systems are secure and when you don't care. And if you do care then oftentimes what you'll do is a kind of version of this red team idea, where you, you essentially invite, you know, some very talented people to come in and see if they can see some holes, identify some holes or gaps you know, in your security or your process or whatever it might be.

And so the idea of a plea integrity unit would be to apply that concept to plea bargaining and have a group of people who are sufficiently motivated, like somebody like me, for example to come in and, you know, with full access to the prosecution files to look for things like, oh, you know, are you suppressing wit- favorable testimony that you should have turned over, Brady material?

Is one of your key witnesses a known liar on their department or within their agency? Unfortunately, fairly common. have you got a, a witness who has given multiple statements and, you know, gone back and forth on what they saw or if they were able to identify the defendant, things like that.

In the prosecution of the former National Security Advisor, Michael Flynn, in the first Trump administration, this is-- they did this exact thing. They brought in a very experienced prosecutor from the Eastern District of Missouri, who was a former FBI agent. He and his colleagues as you say, kicked the tires on the Flynn prosecution.

And by the way, I'm no fan of Michael Flynn. I think he's bonkers, but that doesn't mean that he's not entitled to a fair process like the rest of us. And what they determined was that the charges against him were defective in that he had been charged with lying to FBI agents in the course of an investigation, which is a federal crime, you know, even if you have not you know, been sworn as a witness.

But what they

USC Section: 1001

Clark Neily: You got it. Five years, a potential sentence for that. But what they determined was that there was no bona fide investigation underway at the time, and that's a necessary element of the crime. And once they determined that, the entire case fell apart.

Now, I'm not saying that would happen every time. I'm confident that it wouldn't. But it would happen sometimes, and I think it's worth knowing. I think it's worth making an effort to determine whether a, you know, a fresh look at a given case that's about to be resolved by plea by a group of people with access to all the relevant facts but no motive to come out one way or the other, might identify serious problems in the case.

And again, I, I'm not saying I think that would happen every time or even most of the time. But if you caught, you know, even a, a handful of cases, you might decide that it's worth it. And guess what? In principle, we as society would benefit from that because when you find a, a, you know, a, a defective case that shouldn't be resolved through plea, I think there's a really good chance the person's innocent and the actual perpetrator is still running around out there victimizing people.

Well, guess what? That sounds like a win-win to me.

Matt Adams: Are these plea integrity units something that you're talking to prosecutors, legislatures, court administrators about standing up in particular jurisdictions? Or is it this point, this a, a broad-based aspirational academic construct?

Clark Neily: It's in between. I floated the idea, but I have to say my perception is that generally speaking people with the most ability to change the system have the least real interest in doing so.

They understand that they have to go through the motions of kind of, you know, wringing their hands and expressing the right amount of, you know, you know, regret when a, when an injustice happens. But I don't see a lot of actual you know, real commitment, a willingness to spend political capital you know, fixing the system.

But I, neither am I completely cynical about that. So if somebody expresses an interest, I'll certainly engage with them. But I tend to also look for solutions for exactly the reason I just mentioned. I think a, a insufficient amount of genuine commitment. I really am interested in solutions that can be imposed upon the system against its will.

And one of the most important ones is something we alluded to near the beginning of our conversation that has the added benefit of being the single most terrifying thing I've ever - in terms of how prosecutors react to it. I love it when I see prosecutors terrified of a proposed reform because I believe they are rational people.

And I think when you describe a, a reform and it scares the hell out of them, then you should really pay attention, because that could have a real possibility of resetting the system. And, and it's very simple. It's simply a jury that has been honestly informed about all of its powers within our system, including the power to acquit against the evidence, to acquit a defendant who, maybe the guy really did sell a bag of weed outside a restaurant in the French Quarter, but guess what?

You can still acquit him if you think that's a ridiculous case to bring. Or the guy named Scott Warren, who's an immigration activist in Arizona. He was charged with harboring illegal immigrants because he was leaving water in the desert to try to save people's lives when they came across the border, you know, with these coyotes and, and, you know, came into a part of the state of Arizona where it's desert or mountainous and you could die of exposure.

Scott Warren was leaving water in the desert, and he was prosecuted for that, which he never did dispute it.

Matt Adams: Is that your pr- is that your proposal what you call founding era-informed juries?

Clark Neily: Yes, it is. That's right. A, a founding era jury would've been not only ... you wouldn't have even needed to advise them of the fact that they possess the ability to question the prosecution, ask questions about, like, what's going to happen to the defendant if we convict.

And, and also they would know if, if they just don't think this law should be applied in this case, like the Fugitive Slave Act or laws against you know, producing and consuming alcohol while knowing that every single person in the courtroom is going to go home and have a drink that night, that they can acquit a factually guilty defendant.

I, I think it's an incredibly powerful aspect of our system, and unfortunately what you'll find, and we, we're, we're about to release a big study on this that we've been conducting for over a year, an empirical study documenting all of the ways in which the system both indoctrinates and excludes anybody with a correct understanding of the true role of a jury in our system.

In other words, if you understand everything I've just said, that you have a power to acquit against the evidence and to ask questions about a case, your chances of serving on a criminal jury in our country are approximately zero.

Matt Adams: Yeah, you say that, you're getting a peremptory challenge from prosecutor.

You say that in jury selection, you're done.

Clark Neily: Well, you'll probably be excluded for cause. Yeah ... I mean, I actually, when I was teaching public interest litigation at George Mason, the, like you mentioned in my bio, we got a credible report from a woman who said that her friend had gone for jury duty in North Carolina in some small county, and literally just asked a question about jury nullification during the orientation process.

The court clerk went and told the judge. He was so furious that he brought her into the courtroom. It was empty. What the, they hadn't impaneled the jury yet, and lectured her about what an irresponsible thing that is to even mention inside a courthouse, excused her from the jury pool, but ordered her to attend the trial as a civics lesson.

Matt Adams: Oh my God.

Clark Neily: That's how some system actors respond. And let's emphasize again that we have the better of the argument. Nobody I know disputes that founding era juries were understood to have all these powers and that nothing has changed, except for the desire of judges and prosecutors that those people not serve on juries anymore.

But, and so I think it's, I think that would really fundamentally reset the system if everybody who served on a criminal jury was given accurate information about the full range of powers that they possess as a juror in our system, which not only are they not given that information today, if you come into that information, you will probably be thrown off the jury.

Matt Adams: A third of the major reform proposals that you present is something called a trial lottery.

How would, how would this work in practice, and what kind of professional consequences would flow from the results?

Clark Neily: What I love about this idea is that it is so straightforward and I think so indisputable that it would produce useful information.

The trial lottery, the idea here is that it's a kind of audit of the system, and it is designed to produce what may be the single most important number, empirical number in all of criminal law, which is in what percentage of cases in which prosecutors have induced the defendant to plead guilty would they have been unable to secure a conviction if that case went to trial?

Either because the person's innocent or because there was some significant failure of proof or, you know, some other problem with presenting the case. And so the idea would be that we, we take a as random an assortment as possible of cases where a plea agreement has been reached but not yet entered, maybe 5% of those cases, and we send them to trial just to see what would happen.

And what we will eventually develop is a very robust data set that, essentially identifies a percentage. And, I would say most defenders of our current system would say that will almost never happen. If prosecutors succeed in inducing a guilty plea, there's like a 99.9% chance that they're going to get a conviction at trial.

I think that I would bet everything I have that that's wrong, and I would guess that probably it's going to be more like 10 to 20%, or maybe even more than 20% of those cases, the prosecution is not going to be able to secure a conviction. What if that were true? What if we implemented a trial lottery somewhere, some jurisdiction as a pilot program, and we discovered that in 20% of the cases where prosecutors were able to elicit a guilty plea, they were unable to secure a conviction?

Now, I'm surmising, I'm predicting, but what if it was 10%? I think that would completely reset our discussion about mass plea bargaining. And you said professional consequences. This is my kind of libertarian pie in the sky. I would pair the trial lottery with real consequences for prosecutors, and it would be very much like a court-martial in the Navy.

Every navy in the history of the world has basically designed the process in such a way that if you're the captain of a ship at sea that is significantly damaged or lost, that is presumptively the end of your career. Because the stakes are so high, the amount of responsibility that you hold in your hands for all the people on that ship, etc. is...

You, you'll get a board of inquiry, you'll get a court-martial, whatever. You, you have the chance to go and say, "Hey, you know what? A meteor struck the ship in the middle of the night. There was no way to avoid that." That's not usually what's going to happen. Usually, what's going to happen is the officer of the watch fell asleep or got drunk.

Well, guess what? If you're the captain, that's on you. The way I translate that into a proposal is that if you are a prosecutor who makes a plea offer to somebody who later turns out to be innocent, that is presumptively the end of your career. You'll get a chance to explain, oh, you know, that's the first time this drug lab ever produced a, a false result, or no one knew that cop was a liar, etc.

But more often than not, what we're going to find out is you overlooked something or, or you were willfully blind to some defect in your case, and that should be the end of your career. And last thing I'll say about it is that in my experience, there are two kinds of certainty. There's actual certainty, like what most of us express when we get on a, a plane and allow a total stranger to fly us around the country in a 40-ton tube of steel and aluminum, right?

And then there's prosecutor certainty, which really means I just think you're probably guilty, right? If you're not sure enough to risk your career, you're not sure enough to make a plea offer. That's my bottom line.

Matt Adams: Yeah, I've got a, I, I've got an idea. I mean, how about we enforce the rules of professional conduct as robustly against prosecutors as they seek to enforce against defense lawyers?

Right. As defense lawyers, we are routinely under attack. It's why organizations like the National Association of Criminal Defense Lawyers have task forces in every jurisdiction in this country, is because defense lawyers, just by merely doing their job, have found themselves in the crosshairs of law enforcement action by virtue of just defending these constitutional rights that we uphold.

In New Jersey, I was involved in a very high-profile case where a defense lawyer was actually subpoenaed to reveal substantive privilege communications with his client under circumstances where the prosecutor was so manifestly derelict in her professional responsibility to actually use that mechanism of subpoenaing a lawyer as a last resort, which is written into the New Jersey Rules of Professional Conduct, quoted back to her in the judicial decision striking that subpoena.

But nonetheless, there are zero professional consequences for her, because all she got from her bosses were a, "Hey, good try. That's the way to be a, an aggressive prosecutor." And therein lies the fundamental issue that you highlight. I love the fact that you've brought some hyperbole to the discussion, Clark, because sometimes it, takes a little bit of colorful language to really explain just how precarious a situation we're dealing with.

As we wrap up, I want to give you the last word. You've written, "It's time we squarely confronted the role of coercion in the adjudication of criminal charges in America." And you have added, "It would be a hell of a thing if another country's judiciary beat us to it." Given your experience as an expert witness in some British extradition proceedings, where you testified that a fair hearing for adjudicating criminal charges is, quote, "For all practical purposes, unavailable in the United States", what's your message to our listeners about the urgency of this moment, the urgency of reforming the system that you have unabashedly gone overseas and said is not working at the moment?

Clark Neily: Well, I think the stakes could not be any higher. Again, go back to the founding of this country. Look what the priorities of some of the smartest people who've ever lived were at the time, right? These people, I'm not saying that they were perfect. No one's perfect, but they were brilliant. They wrote one of the greatest secular documents of all time, the US Constitution, and they put a tremendous amount of emphasis and detail into the question of what is the appropriate way to adjudicate criminal charges in a liberal democracy.

The idea that we would just completely turn our back on that and embrace this notion that there's this alternative way of resolving criminal charges, right? Which is just to exert a certain amount of pressure on the defendant that you think did the crime, and, you know, you can have faith that you'll be essentially perfect in differentiating between those who are guilty and those who are innocent.

I, again, I think it's a form of insanity to suppose that there was all along, there was this equally reliable, fair and just mechanism for resolving criminal charges that just didn't occur to the founders when they wrote it out in such great detail in our Bill of Rights. And I think the last thing I'll say is to simply emphasize a point I made earlier, which is the extent to which all of us as citizens, even those of us who will never be charged with a crime, never have a loved one charged with a crime.

You and I and all of our fellow citizens are being deprived of the opportunity to participate in one of the most profound civic duties of all citizens in a democracy, which is to sit in judgment of a fellow citizen who's been charged by the government with a crime. Every one of us should do that multiple times throughout our lives, and almost none of us will ever get that experience.

I think we are being robbed of one of the most essential aspects of being citizens of a free country, which is to understand the responsibilities that come with that. Not just to throw a vote among hundreds of millions of people in a presidential election, but to sit in a courtroom and hold the fate of another human being in your hands.

That was supposed to be a, an absolutely r-routine part of our life as citizens, and hardly any of us get a chance to do that anymore. That alone, I think, would indict the entire process of mass plea bargaining, even putting aside all of the other things that we've discussed. So I think it is a disaster, and I think we've got to change course.

Matt Adams: Clark Neily, Senior Vice President for Legal Studies at the Cato Institute, author of _Terms of_ _Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government_, co-counsel in _District of Columbia v. Heller_, and one of the most persistent voices calling for an end to coercive plea bargaining in America.

as well as the: 2023

This is a tremendous body of work on a very, very important topic, Clark. That's all the time that we have for this episode of "The Presumption of Innocence." I know that this conversation's going to resonate with our audience, Clark. Please do promise that you'll come back and not be a stranger to the program in the future.

It's been a real pleasure talking with you. Until next time remember, folks, the Constitution is-- means absolutely nothing if we allow its promises to be bargained away behind closed doors. So, I'm your host, Matt Adams. Until next time, take care. Bye-bye

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