We're joined by NYU law professor Rachel Barkow to talk about her new book, "Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration." Listen to learn about five (or six) Supreme Court cases that arguably ignored the original meaning of the Constitution to enable our current policing and punishment practices. Along the way, a hypothetical genie offers Professor Barkow a very tough tradeoff.
We're joined by NYU law professor Rachel Barkow to talk about her new book Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration. Listen to learn about five (or six) Supreme Court cases that arguably ignored the original meaning of the Constitution to enable our current policing and punishment practices. Along the way, a hypothetical genie offers Professor Barkow a very tough tradeoff.
[Divided Argument theme]
Will:Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan:And I'm Dan Epps.So today, we're going a little bit off the beaten path and doing a special kind of episode. We have occasionally done episodes to talk with friends of the show about books, and we're going to do that today. So, we are joined by NYU law professor, Rachel Barkow, who's going to talk about her book, Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration.And this is a book that's really, really interesting and I think a good fit for the show, given that it is about the Supreme Court and it's about criminal procedure, a bunch of cases that I teach. So, Rachel, thank you for joining us.
Rachel: Oh, thanks guys for having me. I really appreciate it.
Dan: So, I don't know where to start. There's a lot of really interesting stuff in this book, but maybe we could just have you give us the 30,000-foot overview, and then we can kind of do a little bit more of a deep dive into different parts of the book.
Rachel: Yeah, sure. So, my usual take on mass incarceration and pathologies and criminal law and policy is to focus on political actors and political dysfunction. That's kind of the bread and butter of what I do.
And my last book was all about that. And I felt like at the end of that book, you’ve got to give people solutions, or at least you have to gesture to them. And so, as I was doing that, I had a chapter in there that looked at courts because one of the things I said in the book was kind of weirdly, there are these constitutional protections that could put the brakes on some of these dynamics.But we just haven't had great court outcomes, so maybe we just need to appoint different kind of people to the bench. Maybe we have too many prosecutors, we should think about professional diversity.And I kind of left it there.
But as I kind of-- it just was in the back of my brain, this kind of idea of like, “Why are these cases so bad?” [chuckles] “How can it possibly be that there's these constitutional provisions that are just like dead letters?”And as I thought about it, I would kind of just sit and think like of some particular cases that I thought make no sense if you're an originalist or a textualist, and they were just really blatant policy cases, but then bad policy, which is the kicker.
And so basically, I got to a point where I thought, “I actually think it's worth exploring how the Supreme Court has fallen on its job when it comes to a series of criminal Justice cases that I argue were wrongly decided.” And that's always contentious, I know, because everybody has a different sensibility of how you should decide a case. And so, what I tried to do was pick out the cases that, whatever your methodological preference, if you were a textualist, if you were an originalist, if you're someone who's like we keep with long-standing precedent, unless there's a super great reason to depart from it. Or even if you are just all things considered pragmatist, I wanted to pick the cases that I think failed on all of it. They just were bad decisions. And so, that gave me a core five.
And then, I have a sixth, which we can talk about if you guys want to, which is McCleskey, which I have to concede I don't think the originalist case there is in the same league as it is for the other ones. But I still thought it was important to include because I think it's arguably wrong on that ground as well, and checks the other bad boxes that I have.
So, that's how the book came about. And the goal is mainly just to call attention to the Supreme Court's role in the creation of the United States being the most carceral country on earth and how this country that is supposed to be devoted to liberty ends up having this really dubious distinction of looking like we don't care that much about it at all. It's not to blame the court entirely or even say it's the chief mover in all this.But I do think it's actually a really important part of the puzzle. And I think they've gotten a free pass, the Justices, so I kind of want to at least make sure that they get their share of the blame.
Dan:So, do you want to walk us through the cases? You mentioned McCleskey, we can get to that one later. But give us the core five.
Rachel: Yeah, sure. So, I start the book off with United States v. Salerno, which is the first time the Supreme Court said it was okay to detain somebody after they had been arrested because of an allegation that they're dangerous. It departs wildly from a line of authority and thoughts about what due process and the presumption of innocence had meant and what the excessive bail clause was about.And it comes out of this, frankly, kind of ingenious, like diabolically genius campaign by the Nixon administration to shift the thinking on pretrial detention. So, that's the first chapter.
And the reason that, I think, is an important one to include in a book like this is because if you do look at incarceration in America, about a quarter of the people who are incarcerated are in jails, and most of those people are there pretrial.So, it's actually a really sizable chunk of our incarceration population are people who should be presumed innocent. And yet, they find themselves behind bars. And the reason for that is the court has essentially just opened the floodgates to make it super easy for the government to get detention and really does, like I say, fly in the face of our history.So, that's chapter one.
Chapter two turns to plea bargaining, and the fact that the court has accepted really coercive terms that the government can issue to somebody. “If you plead guilty, I'll give you five years. If you exercise your jury trial, right, I'm going to charge you with this additional law where you get a mandatory life sentence if you're convicted.”Those were the actual facts of the case where the court said, “Oh, yeah, that's okay. That's part of the give and take, we're going to call it a plea bargaining.” And it's really for people who teach unconstitutional conditions or think about how other rights are regarded really puts the jury trial right in the category of second class, something that the court is just treating entirely differently than others for purposes of unconstitutional conditions and coercion.
Then, I have a chapter on the Eighth Amendment and the review for excessive sentences. And I do pick one case to talk about, which is Harmelin, because that ends up in a concurrence by Justice Kennedy, that ends up being the doctrinal test. But that's more of like an entire body of cases and law that the court has created around the Eighth Amendment that just essentially decides they just don't want to be in the business of proportionality review.And I get it, it's hard. There's no real great bright lines for something like that. But the court doesn't do that.
In other contexts, where line drawing is hard, it's in the punitive damages game. It's even in the excessive fines game. But for some reason, when it comes to sentence length, it just thought that was too difficult.And came up with this kind of insane test, I think, by Justice Kennedy, that makes it so you really can't get a sentence overturned. And those plea bargaining and sentence length, I should say, I think there are obvious candidates for a book that's trying to show the court's role with mass incarceration, because you just can't have any kind of mass incarceration without mass case processing.
And you can't have that without plea bargaining. Like, it's really the kind of cornerstone of what we have. And the engine that keeps all that going is the threat of these long sentences with no real cap on what the government can threaten. And because sentence lengths have gotten so long with no check on them that also really drives the number of people in prison on any given day, because if the sentence lengths keep getting longer, obviously, those people are staying day after day after day.
So, then the next chapter though deals with something that's maybe a little less intuitive for mass incarceration, which is prison conditions. But I argue that I think, if you think about what the constitutional minimum is for humane conditions for the state to incarcerate somebody, if you have a court that's willing to say, “Oh, that's so expensive though. That'd be so hard for you. We'll let you double bunk people, we'll let you triple bunk people, even though it doesn't meet bottom line, minimal, expert judgments of psychologists and doctors about what's necessary for a safe facility.” It's like a constitutional two for one sale.And that's basically what the court did in Rhodes v. Chapman, which is the case where the court accepted that kind of excessive overcrowding and really paved the way for that to go crazy thereafter.
And then, policing is the next chapter. And that one, it's like a good dinner party conversation. If you're around a bunch of lawyers, if you get them like, “Well, you've got to pick one policing case,” [chuckles] that you're going to target as being the one that fits the contours of my book, there's probably more than one. But the reason that I picked Terry v. Ohio, which the Supreme Court allows searches and seizures on the basis of something less than probable cause, calls them stops and frisks, and says, “You just need reasonable suspicion for those.” When the court came up with that new framework and new way of thinking of it, it wasn't based on a close textual analysis, was not consistent with original understandings. It was not consistent with prior Supreme Court case law. They sort of just came up with this pragmatic solution to what they saw as a country in crisis in 1968 with riots around the country, crime rates up, policing really saying that they needed more tools.
And the Supreme Court itself on the ballot in 1968, where you have Richard Nixon running a campaign basically saying that Earl Warren and his court are part of the reasons why the country is in such bad shape, and George Wallace saying the same thing as a candidate, and impeach Earl Warren signs around the country. I think that environment for the Supreme Court was too much. And they caved on this constitutional standard for seizures and searches.
And the result of that, I think, is a really important part of mass incarceration as well because I think that ushers in the era of mass policing proactively to really try to kind of excessively go into particular communities they're disproportionately communities of color, and to just go in there and stop mass numbers of people. And you know what that does, it generates arrests, it does generate people who get incarcerated as a result of that creates a lot of ill will in those communities.And I think Terry is kind of the bellwether of that shift in policing and so an important part of the story as well.
And then the last and final chapter, as I mentioned, is McCleskey v. Kemp, which is capital punishment case, where the Supreme Court rejects statistical evidence of discrimination in the administration of the death penalty. And the study is valid, it has been revalidated multiple times over.But the cornerstone of the case is basically in a claim where you're going to allege racial discrimination, you have to show an intent by a particular actor, not just statistical proof. And in criminal law and punishment in particular, that is a really devastating blow for getting oversight of how criminal law gets administered, because it's rare that you're going to find that smoking gun one person who says the thing out loud. It may be an implicit bias in the first place. So, there is nothing to say out loud.But even if it's explicit, most people kind of know to rein that sort of thing in. And so, you would need statistical evidence to make out these cases. And McCleskey just shuts the door on it.
And so, I think that is a key part of mass incarceration as well because I don't think we would have the numbers of people we incarcerate in America, if it wasn't disproportionately falling on particular groups that have less political power and less weight.
So, that's the kind of the six. I welcome anyone who wants to write a sequel with their 6 or 12 or [chuckles] however many. But for me, those tell you a story about criminal law in America.That's a wraparound story. It's policing, it's plea bargaining, it's pretrial detention, it's long sentences, it's prison conditions, it's racial bias. And they're all court cases that when you look closely at them, and you see them, you realize they really shouldn't have come out the way that they did.
And what's at bottom of these cases as a court that thinks they're doing the right thing pragmatically for public safety and keeping things efficient. But a big part of my argument is it's a true tragedy, because we didn't even kind of get that is what we were trading liberty and equality protections for we didn't even get the public safety trade off that I think the court thought it was making.
Dan: Okay, so lots of interesting things to say about this. And I learned a lot. These are cases I teach and know about from teaching crim pro.But I actually learned a lot about each of them from your deep dive. I guess maybe this is the most obvious question, but the book and your remarks just now recognize that there are a bunch of situations where the politics push the court to do what it did. You just talked about Terry and the push against the Warren Court.You talk later in the book about the selection criteria for Justices, you talk about judicial nominees getting pushback for not being taxed on crime.
And so, kind of a two-part question, which is, one, do you really think it could have been otherwise? I mean, if there are these underlying political forces that you were well aware of, and you've written about, could we really imagine the court have doing otherwise? And then to the extent it's kind of like a counterfactual claim, it seems to me that even if these cases come out differently, it seems like they would have created an even bigger backlash, and we would have ended up sort of in the same place. Do you think you can tell a counterfactual story that looks different from what I just said?
Rachel: Yes, I mean, it's a good question, because I'll admit the way I was viewing it was just in a kind of pure con law, “let's work with these cases, think about it.” But as you say you got to sit yourself down in the political environment in which the people existed. Now, I do think with a different group of Justices, yes, I actually do think they could have come out differently.
Obviously, with the same group of Justices, it's not like they just needed to read my book first, I don’t-- [Dan chuckles] But I think a different set of methodological commitments would definitely have these cases decided differently. So, I think if you put some of these cases, if they were cases of first impression, before the current Supreme Court, for example, I do think you would have all the originalist arguments, they would really have to wrestle with some really tough history.
Now, it's not to say they don't find ways around that, [chuckles] that if the politics are strong enough, or personal preferences might be strong enough, or whatever cognitive dissonance produces it, I won't psychoanalyze the Justices and how things sometimes don't look to me to be purely originalist, consistent arguments. But I do think if they had this issue before them, they'd have a tough time, they'd have a tough time with these cases. And I think more than that, they would see at least how they would need to have serious limiting parameters around them.Because the other thing that happens in the way they're actually decided is, because this really is the classic 1970s, 1980s Supreme Court cases that we all read where you're like, “Oh, my gosh,” they just [chuckles] kind of come out with outcomes. And there's so little analysis. And sometimes you read it and you just think like, “This is insane, how not rigorous some of these opinions are.”
I think it would be different because they would have to create the record to justify what they were doing consistent with methodological commitments that some of them have staked out. But even if they were going to ultimately try to get to the same bottom line, because they felt the political pressure or whatnot, I think they would really cabin these things. So I'll give you the example is Salerno, which I think that's probably the worst on just a reread.If you just take the Rehnquist approach to that opinion, it is not a model of judicial craftsmanship, I will put forth.
Dan: It emerges that you're not his biggest fan after reading this book.
Rachel: I am not a fan of the judicial opinion writing quality that he has produced. And this one is pretty, pretty awful. But what he says there is after he goes through the kind of, “Oh, the presumption of innocence, that's just a burden of proof thing,” like, full stop. That's it, we're done with that. We don't really think about that in any other context. After he does that, when he gets to the end, he's like, “Your liberty is still important. This is going to be the exception, not the rule.” [chuckles]
All right, after Salerno was decided, [chuckles] like the explosion in pretrial detention is, it's insane how broad the authorization is in the law that Salerno itself was considering, because that's the federal bail reform law, that law, the drafters of it again, also not models of congressional craftsmanship, if you go back, which I did, I read the debates and saw that they thought they were creating something that was going to be narrowly tailored, or they said they thought they were creating something that was going to be for just the most violent. And admittedly, they associate drug use and trafficking with violence.But they still thought it was going to be about, and they thought it's going to be a small percentage of cases. Everywhere you look, you see people throwing around 10% as the kind of estimate, and that it wouldn't be for very long periods of detention, because they thought the Speedy Trial Act would set a kind of ceiling on how long you could be detained.
But if you'd had anybody in there who did like a real analysis for them, right off the bat, someone would be like, the drug cases are going to swallow your whole law, which they do, because there's a presumption of detention in the federal bail law, if it's got a statutory maximum of 10 years or more.That's almost every federal drug offense. So it will probably not surprise anybody to learn 75% of all federal defendants are detained pretrial. And that is because they're charged mostly with these drug offenses.And there's a presumption that kicks in. And so the idea that it would be 10% is bonkers. And then the other kind of guardrail that's not in there is, if you just thought the Speedy Trial Act was going to save you anyone who knows much about how Speedy Trial Act operates in practice would be able to tell you that's not going to help either and so it's also not surprising that the average detention for someone in federal court is more than eight months. And in some districts, it's more than a year.
So, again, these are people that are supposedly presumed innocent they haven't had their trial.They're sitting in there for almost a year, and it's like three quarters of the people. So if the court today were rethinking this, I'm not convinced, first of all, they would definitely decide it the same way. But if they did, I think they would start to say things like if you're going to have this exception, there's got to be a cap on time.There has to be a burden in what you have to show before you get it that you can't have the presumption override, it can't be such a strong presumption that someone can override. I think they would have been more careful in how they did it so that it didn't look like it was such a huge break from history and tradition. So, I think there's a way they could kind of have done less damage, even if they were focused on the politics.
And this will be the naive thing that I'll say, and you guys can skewer me and it's okay. [Dan chuckles] But my view is that's why you got life tenure and that's why you're supposed to be there on the court is you're supposed to take the political hits and say, “Hey, you may not love this, but that is, in fact, what the Constitution requires.” And they have done it in other contexts, they do push back, the Justices, when they feel like the Constitution demands it, even though they know it's not going to be popular, or at least not popular among a huge segment of the country. And I think this is a space where they kind of need to buck up and do what the Constitution requires of them.
Dan:Well, we do have an originalist on the line, I believe. And so, Will, I don't know if you want to say anything from that perspective. Because I did find persuasive, at least the big picture claim, that the criminal Justice system that we have today is very, very far from the Framers’ vision. But obviously, people can quibble on sort of the case-by-case level.
Will: Can I disappoint you by first asking a pragmatist question? So, I guess, one question just on this picture is, are these unintended consequences or intended consequences?Because there are places where this is like-- it probably makes the book great, these decisions are a slightly deep cut. It's not Miranda, it's not decision to pull the death penalty. These are things that you have to teach criminal procedure to understand how important they are and how much where they affect the system or practice criminal procedure.
So, I guess just on the first part, like, do we think that Chief Justice Rehnquist knew that he was effectively licensing massive pretrial detention and was fine with that as he was Chief Justice Rehnquist? Or do we think if he'd read your book, even he would have put some limiting language in there to begin with? Like, what picture have we got here?
Rachel: No, I think he totally knew this would happen and didn't care. I think he would fall into that camp. And so, when I have my revisionist foray that you guys let me do, that would be for the ones who would care.And I do think originalists would care. So if you had the reluctant originalist who is also paying attention to current political climate, that's the person who I think would be putting some guardrails around it. They would feel the tension, but they would maybe want to give the government some kind of a victory, and so they would craft this more limited thing. A Rehnquist type, I think, no. Like a Rehnquist-Alito, if we're going to pick a current Justice who I think kind of leans in that same kind of general direction is basically like, we give the government all the tools. [laughs] Government says they need it and our general inclination is to say, “Okay,” unless there's a really strong force in the other direction.
Rehnquist, I should add, is also a special case because when the Nixon administration in 1968 gets elected, so it's not just relevant for Terry, it's also relevant for pretrial detention.He wins the election in 1968 on this whole tough on crime, law and order kind of platform. And as soon as he gets elected, of course, like any president would realize is, “Wow, what does the president really do about crime in America?” Kind of nothing. [Will chuckles] So what can I do? And so he comes up with this idea with his team that they're going to draft a law for the District of Columbia, kind of his backyard with the White House. They're going to draft the first preventative detention law for people who've been arrested, the DC law.So that's the first one. And William Rehnquist writes it. He drafts that DC law.So to answer your question, would Rehnquist be okay with it? [laughs] Absolutely. Because he is person who drafts the DC law, which ultimately metastasizes and becomes this monstrous federal version.
The DC law actually was limited because they knew they were testing the waters and they knew they had to be careful to get a lower court to not think they were going crazy. So the DC law did have a 60-day time limit. It wasn't tied to speedy trial.It was an actual time limit. The government had to make a case that this person actually committed the crime by a certain evidentiary threshold. It was actually hard enough, in fact, that the government thought it was too hard.It was too hard to get detention. And that's why later laws are more relaxed versions. But the first foray is actually one of these kind of limited versions.
But Rehnquist writes it. And I think he knows full well where it'll ultimately head someday, and I think has no problem with that.I think that's very consistent with him.
Others, I think, though would. I think there are Justices who would find the way things spiral, they would find it more problematic. But it's also context specific because I think for example, with plea bargaining, by the time the Supreme Court has the case where they say that what the facts before them are okay, you'd be hard pressed to find facts worse than the ones that they saw because that is one where a prosecutor-- the guy, he forges a check signature for $88.30. And his prosecutor says, “Okay, so the law I'm charging you with, it's got a 2- to 10-year sentencing range. But if you plead guilty, I'll agree to five years.”And the defendant says, “I want a jury trial.” And the prosecutor says, “If you put me through the inconvenience of a jury trial, I'm going to supersede your indictment. And I'm going to charge you with one of our state habitual offender laws,” because this guy had two prior qualifying offenses. And it'll be a mandatory life sentence if you're convicted.
So in that case, for example, the court sees like it can see how will this all play out? Well, it'll play out like this, it'll play out with prosecutors saying, “I'm going to give you a life sentence unless you plead guilty.” And they still did it. So I think it's safe to say in some of the contexts, they knew exactly how it would play out, and they didn't care. I think in others, I don't think they fully knew how bad it would be.And then I think most importantly, I think there's a segment of Justices or at least a type of Justice who maybe, if not the actual composition of the court when these cases were decided, but people who have been on the court since or other people who occupy the bench who would be very disturbed by it and would not want it to come out that way. So, it's a little bit of a mix to answer the pragmatic question.
Will: Okay, so now on the originalist point. I mean, I love the take on Salerno, which is a case that's never made sense to me either. But so at the founding, they caught a murderer, is the idea they'd catch the murderer and they'd be like, “Show up in court next week, but for now, you're free to run around,” or maybe murder is a violent crime, it's the wrong one, I should say that. They caught a smuggler.
Dan: It was a capital crime, right? So, there would have been no--
Rachel: Right.
Will: Well, but there would have been something before during the presumption of innocence, they didn't kill you yet, but let's make it a smuggler. So, it's a sort of a drug, they’re smuggling rum or whatever. Catch the smuggler is the idea that the founding-- they'd catch the smuggler, and they'd hand you the indictment and say, “Enjoy your smuggling for now. We hope to see you when the trial comes,” or how do you--?
Rachel:Yeah. I mean, the idea is as long as you would not flee the jurisdiction, the concern with making sure people showed up for their trial is you definitely wanted to make sure that they wouldn't flee. And that's where bail comes in. Bail is the idea that you're going to put up some money so that we can be assured that you're actually not going to leave town.
And also, if there's a worry that if you're going to go out there and kill witnesses, you're going to destroy evidence. The idea is to preserve the fact that the trial is going to give us the answer to what should happen to you. So, the valid reasons that at the founding and based on our English tradition were preserving trial. So, if you were going to flee, if you're going to destroy evidence or harm witnesses, those were all valid reasons for detaining someone and putting a bail amount. None of it was about, “I'm going to give you a high bail amount because I think you're a danger and I don't want you to get out.” Now, there are other ways you can try to detain dangerous people.We have civil commitment. If we think somebody cannot control themselves, so they can't hold it together before their trial, then what we would do is we would civilly commit them. But we have a clear and convincing evidence standard, we have a way to go about that.
So, it's not like you don't have another mechanism, but the idea is when you're on the criminal side of the line, we don't just use the fact you were charged criminally full stop to say, “Oh, danger. Danger, we got to detain you.” So that's the novelty.Now, over time if we're going to take a realistic perspective here, I don't know how early-- I didn't see good historical evidence of like how early it starts, but at some point, it does happen that judges are like, “I'm going to set your bail high [laughs] because I think you're dangerous.” Like for sure that happens at some point, but we don't have like that kind of monumental George Fisher study that helps us pinpoint like when plea bargaining begins. I didn't find anything like that for like when bail turns into that, but clearly at some point it does.
And at some point, judges are like, “I think you need to be detained, therefore I'm setting the bail at X amount.” And when that starts to happen, so by the time we get to the 1960s, in America, you do get some people saying like, “Judges are doing this anyway.” I know we're all saying they can't, we all agree there's a consensus, you can't do it.But the idea is they're all doing it anyway. And so, you get reformers on the left saying, “Maybe we'd all be better off if we just did this honestly. What if we just honestly admit to ourselves that sometimes people are dangerous and therefore, we should write the law that really tries to capture that.”So, they have liberal good intentions. And then you've got conservatives who are like, “Why is this wrong at all? [laughs] We want this to be happening anyway.” And that's where you get the movement to try to legalize it and put up an imprimatur that says it's okay. But up until then, everybody knew you weren't supposed to do it, even though people started doing it anyway.
Will: I guess, and to be sympathetic to them, it seems like a little counterintuitive to say like, “Look, I promise I won't kill any witnesses. I'm going to kill some other people. I'm going to kill a bunch of other people because it's my last chance before I go to jail, but I promise I won't kill any witnesses. And I'm not crazy. I'm really just doing this in cold blood.” It seems odd to think the courts just have to be like, “Well, all right.”
Rachel: Well, so I think the notion that you want to have there is that first of all, these people are not guilty yet. We don't know if they are guilty or not. And so if you're an innocent person you have this presumption of innocence, we want you to retain your liberty until the state proves that you deserve to have it forfeited.
But even if let's assume you're kind of a bad actor guy if you're a rational actor, you haven't been convicted yet, and maybe you won't be. But the last thing you want to do while you're out and about is kill somebody else, because that is kind of a foregone conclusion for your trial. That is why if you visit jails around the country one of the things people who work in them always will tell you is, “Yeah, this population is usually pretty well behaved, because they don't want anything to cut against them in their trial.” They're trying to keep it together for their trial.
Now, if you had someone that couldn't control themselves, that is the basis for the civil detention where you'd want to try to have a mechanism in place. But most people don't like that-- when you're kind of pardoning the person who's like, “This is my chance to go out and kill more people,” I would argue that’s the person that has the mental disease or defect where we're thinking civil commitment is a good idea, but most people who commit crimes aren't doing that. They're not like, “Oh, this is my chance, I'm going to kill--" They commit crimes for particular reasons in particular contexts. And they do hold it together for various moments when they have the right incentives to do so.
And so that's the kind of perverse tragedy of pretrial detention is, I totally understand the instinct that you think, “Well, let's just detain as many people as possible so they don't go and hurt other people.” And what people forget is the flip side, which is actually detaining people makes it way more likely they're going to commit crimes. Because when you detain somebody, most people who are committing crimes, they're kind of living fairly marginal lives.So, when you detain them, it's not like they get to keep their job. It's not like I could just go to NYU and be like actually, “I'm going to be detained for a little while.”
[laughter]
“I have a sabbatical a little early this year, and I'm going to spend it in this jail.” For most people, that's it, they're fired. So, job, custody of their children, gone, state's taken them away. Housing evicted. They can't make the rent.So, you talk about people, they are spiraling really pretty quickly, because of pretrial detention. And we have all these empirical studies that show that now. And so, the perverse tragedy of a case like Salerno is it's done because the thought is it'll make everybody safer. And, in reality, what it does is usher in this era of just widespread pretrial detention that sets people up to fail and makes it more likely they're going to commit crimes as opposed to prevent them.
Dan: So, Will, I do like that you push back on that a little bit, because that is a case when I teach it in crim-pro adjudication, where sometimes students do take this kind of absolutist position, the kind of Justice Marshall position, and say, “Well, what if there's a terrorist? What if there's this? What if there's that?” And they sometimes struggle a little bit with that. Can I change gears? I don't know if you have more originalist questions to do, Will, but you can save some of those up.
One is sort of a question about remedies/judicial enforcement, because totally, I think, as I said, by the big picture claim that the system that we've created is really, really far from the Founders’ vision. On the other hand, it's not totally clear what they would have envisioned as the court's role in pushing back. And so, mostly this is not a Fourth Amendment book, but you did throw in Terry.And so, that's one that I think raises a lot of hard questions about how are we going to enforce the Fourth Amendment? So right now, we have an exclusionary rule, very hard to say that the exclusionary rule has any support in original understanding.I know this is something Will has thought about a little bit. And so, maybe the court could have gone in a different direction in Terry. But then, we also then have to say, “Okay, well, how are we going to enforce that? Are we going to have an exclusionary rule? Are we going to go back to common law trespass actions?”
And I think you can ask somewhat of a similar question maybe about some of the other areas. I mean, I think the Founders would have also thought it was pretty crazy to have like structural reform litigation, regulating prisons, things like that. And so, how do you make sense of that?
Rachel:Yeah, no, it's a fair question. And I don't try to give you a cohesive, neatly packaged, “Here's the originalist criminal justice system.” I'm using originalism for a more limited purpose here, which is to try to answer critics who might say, “Just because you, Rachel, don't like how these cases came out doesn't mean that I can't disagree with you.”And so what I was trying to do is kind of tick through the major methodological approaches. And obviously, originalism is one. And what I think is so interesting about these cases is they fail on that measure.And so, it's important to highlight them for that. But you're right, if the idea is you're going to be an originalist all the way down, then you're going to have to take some good with the bad.
And in criminal law, that may mean you lose some remedial measures that currently exist. Now, I still think there's a framework for doing it and Will knows this more than me. But, yeah, you could bring actions because you don't need to have the expansive made-up immunity doctrines that the court has come up with that shield people from suits.And so there could be another way that you would do it where I think you would have officers not want to find themselves facing lawsuits or illegal stops and jurisdictions not having the money to be able to indemnify at that kind of level of liability if that's the framework that’s adopted. So, I think there's ways it could still find itself being enforced. I do think that the idea of the court being involved in some of these things, I think one of the reasons why they step back for some of them, at least, is the idea of remedies and is the idea of, gosh, even if we kind of police the substantive bounds how far would we find ourselves being involved in this stuff?If you take something like plea bargaining, what do you do there? Do you come back and you tell the government? You can't make any deals, you can't make any offers.
And I try to argue in the book that, okay, you'd use the unconstitutional conditions framework like you do for other constitutional rights. And it's a pretty malleable framework that gives you some flexibility into trying to see whether or not something is unduly burdensome or coercive, but I get it, in the context of plea bargaining, that's more than just your occasional permitting case for a property [chuckles] owner, like, that is tens of hundreds of thousands of people shuffling in and out of courthouses and prosecutors’ offices around the country, that would potentially mean you're weighing in on an awful lot. And I think that is something that gives the court pause. I think McCleskey is another example of that, where if you allow statistical evidence of discrimination, you're not just going to find it in the death penalty. You're going to find it all over the place. And if you find it all over the place, what's the remedy? What is the remedy if it turns out that you which we have is a statistical bias in sentencing, all sentencing, not just capital sentencing?Does that mean-- is the court going to say you can't sentence these people anymore? Do you level everybody up, level everybody down? I think there's a real pragmatic question there that is a difficult one.
And that's what ultimately when the majority says in McCleskey, honestly like, “This is probably not isolated.” And Justice Brennan coins his famous phrase in dissent that the majority has a fear of too much Justice. That is where that comes from. It would be a fear of too much court administration, too much remedial action, it would be Justice, but it's pragmatically going to be really hard to administer. And I think that's a legitimate point to raise. I don't think it's sufficient though, to not recognize the constitutional rights at stake.
Then that becomes the phase at which you have to try to start capping things or that's the phase where maybe you do start coming up with some bright line guideposts to guide lower courts so the cases aren't constantly coming back up. I think you could create more common law like jurisprudence over time that would answer some of the hard questions and maybe still leave a pretty big area of gray that the government gets to operate in but would be better than the hands-off doctrine that we have now. But it's a fair point.I mean, I do acknowledge it throughout the book. I completely get it. There are some really tough remedial questions here. There's some really tough line drawing questions here. But I think one thing that's always stood out to me as a criminal law person is I see people give papers and talks in these other common law areas where the court is like in there with their sleeves up and they're figuring out, “Hey, it is your Second Amendment right.” So we're just going to have to live with consequences and draw tough lines and play it out. And here we are. And they're doing it. It's hard not to notice that the space where they have been reluctant to do any of the difficult work is when it comes to criminal defendants.
I don't think it's coincidental and I think it's a shame. And I think it's particularly shameful, given that I think our founding document was particularly concerned with rights in the context of people being charged with crimes. Again, they make a good living, they have job security, [laughs] and I think they could do it if they put their minds to it. Although I do recognize it wouldn't be perfect, and we wouldn't perfectly police any of these things. But I think we would do a better job than what we have now, where they basically just wash their hands of it.
Dan: And, Will, I don't want to take up all of your time, but I have so many questions. One is, if I could get autobiographical for a minute, how much of this book and at least that slice, the kind of original slice of it, is a product of you being one of the relatively rare, more liberal clerks for Justice Scalia? How much of this is kind of you like shouting back at Justice Scalia?Like, “How did you let this happen? This is inconsistent with your values.”
Rachel:Yeah. No, I mean, so the autobiographical point cuts both ways for me, I got to tell you. So, for most of the things that I do, it's been great for me that I have all this experience with textualism and originalism, and by the way, very sympathetic personally to those methodologies. I actually do believe in them. I may be a little more flexible in the administration than some, but I legitimately believe, I believe in federalism. Like, it's not just that I accidentally ended up clerking for this person who has those methodological commitments.I had no problem with them. I actually agree with them. But as a liberal-- I was able to put my Rawlsian veil on, hopefully. [Dan laughs]These are really good for everybody in a society to have commitments like these.
And in fact, it was mostly helpful for me to kind of be able to talk to Republicans and other conservatives on criminal justice reform issues, because I think in many ways we speak the same language. Like, I can understand, you don't like big government programs that involve abuse and waste and seem to just be ill-administered, like, I have I got one for you. I've really had an easy time using it in a helpful way. But I will say it is frustrating for me with some of these cases, but the one where Justice Scalia comes out the worst for me is the Eighth Amendment, because the Eighth Amendment doctrine, when the court ends up deciding how to think about excessive sentences, it's not like really briefed in an originalist framing. They don't have good briefs but he goes off on his own or he must have asked a law clerk to do it. And he ends up kind of misreading this whole English case of Titus Oates and whether he could be pilloried for perjury, but there are people who have looked really closely at that case and the background and Justice Scalia gets that originalism wrong.
I think one of the reasons he gets it wrong is because he did it off the cuff like that would be your classic law office history send a law clerk with the Supreme Court librarians or something.And that's what they come up with, as opposed to like a really careful study. But I think the second reason that may explain why he gets that wrong. I think he just wants that outcome so badly that doesn't have the courts involved with sentence length policing, because it would be pretty nightmarish and awful. And wouldn't it be so much easier to just be like [scoffs] it's just methods of punishment.We are just we can rule out certain methods, like drawing and quartering. But if something's acceptable, like a prison sentence, we're out of that business. Like that'd be neat and easy.
There's probably a kind of cognitive temptation to get that if you can to kind of read the history with that as an end point. And I think if I'm going to psychoanalyze one step further with him, I do think the court's capital jurisprudence, where they were much more freewheeling in evolving standards and creating lines that don't look like they're based on traditional constitutional methodology, or they're looking at international comparisons, and they're trying to think about international norms. He hated that stuff, like hated, hated, hated. Those are some of his most blistering dissents. And I think the idea that we would have a non-capital jurisprudence that would in any way, shape or form go down that same path, I think, just-- boy, maybe it made it easier to read the cases, the [chuckles] old English case a particular way. I'm not sure.But I do think that if you're going to take it seriously, and so I'm going to give him the pass in that there wasn't full briefing, it wasn't something that was fully before the court. But I think now that we do have things like that, well researched, well documented if he came out the same way now, I think it would be less forgivable. And he still might there were definitely still areas that I didn't agree with him on.
But for me, it's less about kind of autobiographical, like I had this axe to grind and I couldn't wait to kind of expose it. It wasn't that. For me, it was more the fact that we do have Justices who are very committed to originalism, and now they're overruling cases that they know are bad. That's the kind of the other reason that I think the book, for me, seemed worth writing is there's not much point if you're just going to kind of say, “Oh, these cases are bad.” Well, that's a shame, that's what you have to live with them. Part of it for me is the idea that we could still reconsider them and we have a court that's really into that, like they reconsider things even when they're 50 years old.They may reconsider something 90 years old with Humphrey's Executor coming up.
There's a willingness to take a fresh look at things by certain Justices on the court that I think is another reason to do something like this. I guess to the extent that's autobiographical, it's just watching the Justices in some areas be way more willing to do that and wanting to get criminal law and punishment issues on that same agenda.
Will: I was thinking about this. There is this fact that the courts got in there before these cases too. So, the context for some of these cases is they come on the heels of the rights perception that the Warren court went into criminal procedure and made a bunch of stuff that made things harder than they used to be.And in the good old days, Dirty Harry could just do the right thing, and we didn't ask any questions. My sometimes co-author, Mike Paulsen, has a book review, Dirty Harry and the Real Constitution, about what would happen if we recovered the lost criminal procedural world of Dirty Harry.
I guess I wonder if those are related in a couple of ways. I wonder if that, like, at a realist level, did that give the Justices in these cases sort of more permission to be like, “Well, this is apparently an area where we just make stuff up because the other side made stuff up. And so now, I'm going to make stuff up to help.” And then on the more substantive level, if we think about a world without Gordon v. Massachusetts and a world without Salerno, it's going to have to be a world with a lot more trials, as you say. And that's going to require more judges and more resources, but it's probably also going to require just like faster, more streamlined trials. Like, we're going to have to figure out a way that trials don't have to be as complicated. And that might have to include getting rid of or streamlining some of the other constitutionalized criminal procedure doctrines just to make it easier, like easier to convene a jury without all the messy stuff we have, or easier to take witnesses or even, I guess, at the founding days, they didn't really have criminal appeals.So, another way to make trials faster, as you told trial judges, nobody's going to cover your shoulder.
So, is that a world-- that's obviously not your main pitch here, but is that a set of trade-offs you'd be comfortable with?
Rachel:Yeah, so I'm going to take the first part of your question first, which is kind of what's the relationship between these cases and the kind of Mapps and Mirandas of the world. I actually do think there's a direct relationship with some, because Mapp and Miranda are really high-profile cases that spark an enormous public backlash. And so when we get to that 1968 presidential election, those cases are in op-eds around the country.There are op-eds and there's people talking about the Supreme Court kind of brought us to this point. Because 1968 is just like a bonkers year in America for people who aren't well-versed in history or weren't alive to live it themselves. So, the year itself, we are having rising crime rates, so homicide rates are up. So, a reliable measure of violence is definitely homicides, because you can't really fudge those statistics and they're up. And that's probably an index for other crimes rising. You have unrest all around the country with protests turning violent into riots it's like literal cities are burning.
And Terry v. Ohio was decided in 1968. So, Terry is in this weird position where in the course of the between argument and the decision, there were two major assassinations. One of my colleagues here was a law clerk at the time and when he was trying to explain to me how I didn't really quite understand why Terry had to come out the way it was kind of one of those, like you just don't understand.He said, “You look out the Supreme Court building windows and literally see DC on fire. You could see the smoke outside of the Supreme Court windows.” And so, I think the Justices in that environment know people are really angry at us for Mapp and Miranda.They are angry at us. We're reading the newspapers. We see-- I mean, maybe they see the “Impeach Earl Warren” signs on the lawns as they're driving into work.
So they know that the Justices have pushed the envelope, and people are angry and it looks like things have not gone great because it looks like there is a public safety compromise. I think in that environment, it would be really hard for the court not to try to give the police a win in Terry. I really do.I think it is a direct through line there for and after Terry is decided, there's all these op-eds around the country, like the Supreme Court finally gets it. the Supreme Court seems to understand so they kind of got their good press. They got the thing, I think, that because what would it have looked like if they decided it the other way?
That one is, to me, a direct one. And I think Nixon having won, he gets some key Supreme Court appointments as well. So, because of the backlash to Mapp and Miranda, you get Nixon, and you get appointments to the court and they're really conservative Justices that are very kind of tough on crime pro-government types.And that is going to unleash another-- that's going to flip the court in some areas where you might have had things come out differently, had that election come out differently, which might not have come out the same if you didn't have the backlash. So, I think there is a direct relationship between these things. So, I think it's more that than it is, “Okay, well, the liberals went to town. Can we conservatives go to town in our own way?” I don't think it's that. I actually don't think they see it that way.I think they more see it as like the government is asking us to do this thing. And the government is giving us these reasons why it's really important to do it for public safety and administration. And I think they're just sympathetic to that.And they just find a way to do it, which to me just seems less activist than maybe the portrait that's like, “They're going to get some, we're going to get some.” On the second part of your question.
Will: All the things we have to lose to--
Rachel:Yes. The tradeoffs. The tradeoffs in terms of we would have more trials for sure.Now I think what scarcity does in criminal justice administration is produce more rational outcomes, because when we've had financial scarcity, when we've had other resource constraints, like in COVID, what it usually does is it makes political actors have to think twice about how they're going to use this resource that seems limited all of a sudden versus one that seems limitless. And so, I do think it would impose some rationality in terms of when you would use it. So, I think that's when you might start thinking about, “Do we really need to have like millions of misdemeanors or could we just deal with those cases in a different way entirely like the kind of more traffic ticket like model as opposed to incarceration?”
But I'm going to accept the premise because to a point that only gets you so much and you're still going to still have because there's plenty of people who commit acts of violence that you're not going to deal with in any other way besides crime as a criminal punishment because it's a decent chunk of the people who are incarcerated in prisons are there for some kind of violence. And for those people, I think it would be really difficult to maintain the same levels we have if everybody had to get a full-blown jury trial. Now, I don't think all of them would be jury trials because I think just because you said you couldn't have coercive plea bargaining doesn't mean you can't have guilty pleas.
And it doesn't mean that you can't have some discount for pleading guilty that the judge gives you because the judge recognizes there's some savings in administration, but you'd still have more. And so maybe that would mean that you'd have to find other ways to streamline. I mean, I tend to agree with Dan and his co-author and others that we micromanage juries too much anyway. I think we do too much to try to rein them in and you could have faster trials by just having a little more faith and trust in people to not need to be instructed to death, not to need to have this whole edifice of-- it's weird. It's like the things we do instruct them on to me, or it's like too much. And then we don't tell them things like punishment.
So, I think we do a lot of wacky things basically because I think the judiciary, judges, professionals really grew to dislike the idea of a jury, but we still have it in the constitution, but I think the professional class over time really didn't view it with the same reverence that the kind of framing generation had for the idea. And so it's been kind of cabined in this way. And I do think resuscitating it for purposes of recognizing it along with other rights for unconstitutional conditions might mean also trusting it a little bit more in the way that it operates in a trial process.And a lot of other people, by the way, would not want that trade-off, but I'm completely comfortable with it.
Will:So, if Justice Gorsuch genie came to you and said, “I'll give you a five and a six, I'll give your big five. I won't give you McCleskey because that's not originalist.”
Rachel:Yeah. It's not that it's not not originalist.
Will: No, I understand. But he says, “I'll give your big five in exchange for eliminating basically all legal rules about jury selection. We'll just pick the jury--” we have the fair cross-sectional requirement. “We'll just pick the jury and we'll just take the 12 people we get and eliminating criminal appeals. The trial court will do a good job. We'll just do it once and we'll be done.”
Rachel: Well, when you say no appeals though, how would you police some of these constitutional violations?
Will:How did we used to police them? We just had a judge and a jury.
Rachel:Well, I guess the issue would be if you are only giving me my five. [chuckles]
Will:You can still have appeals for non-criminals. If somebody's detained, they'll still get a Salerno appeal.
Rachel:So, when you had like motions to exclude or claims during the trial, you get whatever the judge does on that. And there's no appeal from the ruling. Oh, man. Your genie is mean. [chuckles] And your Gorsuch genie is really requiring a vicious tradeoff that I'm going to refuse to accept. Actually though, in the end, if like that is my choice, like I won't write the hypothetical--
Will:I mean, you could drive a harder bargain obviously, that’s fine.
Rachel:No, but I still think it would be a better world. At the bottom, what your question I think is asking is, are the things that I'm outlining more important really than the things we have preserved? And I think the answer is yes, because I think for most people, there's no appeal anyway.You're just in this world of-- You don't even get the trial. You don't even get the first bit of someone looking at the legal. So yes, I would make the trade. I just want to fight it because I'd like to keep some of them.
Will: If there are no tradeoffs, it wouldn't be a fun question.
Rachel: No, I know.
Will:The person who's detained for three months before they go to trial and pleads guilty because they've already got time served, but the appeal isn't doing a lot of work for them.
Rachel: Exactly. No. And there's not that much that the appellate work is doing in the main.So, I think it would be worth the tradeoff. It’s just it does give me a little bit of pause and the kind of the discrimination in jury selection, that's also a bummer but you know. [laughs]
Dan:But so I was going to maybe, as part of a friendly answer to that question, cite to your colleague and co-author, Steve Shulhofer, Rachel, because he has that article from the 1980s looking at the bench trials in Philadelphia, where he's like, “Look, they didn't have plea bargaining, but there's this informal system where people like agreed to waive their juries and they have these like super-fast bench trials and it works pretty well.”Now, I know you're a big fan of the jury too, and as am I, but what do you think about that solution? It does seem in some ways better than the current system if more people are getting some actual fact-finding process.
Rachel:Yeah. So, I do that as just a pure policy question. For me, that is like different than-- what we've up till now where we're in the realm of con law. So, for me, what I don't like about what happened to the jury trial, is I do think it's become this like second class constitutional right in the constitutional pantheon and if I'm going to grind all the axes I have. It's also the fact that criminal procedure is like this-- that is con law, but in its own separate class and I think students and people tend to think of it as different from con law because it's called criminal procedure, but it's still the Constitution. It still should be subject to all the kind of big picture and big thoughts that people have about the Constitution. For me, the issue with the jury trial is that I do think it is a centerpiece of our constitutional framework.I actually do think it's really important to have a citizen check on the government. I actually am a big believer in it.
For me, there's the con law part, but then on the policy level, the one I don't love about the bench trial model that Steve outlined in the study is that it's still a bench trial. Anyone who's appeared before judges knows that some of them are just not objective-
[laughter]
Will: [laughs] Never.
Rachel: -and they're not going to guess the government in the way that you want. They're not what you need the jury to be, which is that bulwark against the state. And so if the choices between plea bargaining where you don't get anything and then these mini bench trials, which is I think how Steve tried to portray it was like, “Look, if you're choosing between those two things, the bench trials are better.” But if the question is the bench trials and jury trials where we might have Will's question of you're going to have to streamline them or you're going to lose you're not going to be able to bring as many to trial, I choose the jury trial. I choose losing out on having more cases processed if that's the price that we have to pay. I just think that Americans have become complacent to the notion that we can trust the government, and everything is fine when the government does things. And I sort of feel like what's interesting about the time we're living in now, because before I would say before the last 10 years whatever ball park range you want to say, I think other than a couple of kooky libertarians. If you said stuff like, “You can't just trust the government, you got to put the government to their paces.”
And I do sort of have those instincts where I don't fully trust the government. And I like knowing that there's checks on the government. I think we live through a really long period of time in America where people did just trust it though, just like well-meaning, good faith people, like, “Why would you need the jury?Just trust another government actor to trust the first to check the first government actor.” And I think one of the kind of interesting, weird things about the insane times we currently live in, if I were to try to look for one bright spot, [chuckles] it is that maybe now there is a little more healthy skepticism about government claims and the idea that the government can operate unchecked without anybody outside the government also taking a look because I do think that we have lost a little bit of that veneer of a presumption of regularity and good faith, they're kind of the Dudley Do-Right, they're trying to do the right thing. Once you start getting an administration in there that's pretty blatantly like saying, “We're not really trying to comply. [laughs] We're actually trying to do other things.We're trying to loophole. I think that gets people to understand that you actually could have some government actors that need a citizen type check with the jury. And I believe in that.I really do. And so, for me, a bench trial is just not an adequate substitute.
Dan:I know we're running short on time, but I have one question that hopefully doesn't open a whole can of worms. But I know a friend of yours and a mentor of mine was Bill Stuntz, who sort of famously tried to blame the court for many of the things that led to mass incarceration and sort of said, “Not only is the court not fixing it, it's making it worse,” and makes these kind of causal arguments. And I think that's part of his scholarship that's been most heavily criticized, not to keep harping on Schulhofer, but including by Schulhofer in a pretty tough but fair review of the book. You are not making the same kind of claim, but your claim is not like the court's making it worse, I guess, but just the court could have made it better and didn't.
Rachel:Yeah. And I also just don't agree. So, I loved Bill Stuntz, and I still go back to his scholarship and find it to be really valuable.But in this particular line of the scholarship I think the part of it that I don't agree with is that his claim is basically the court-- It goes back to Will's question, by going too far on the procedural side of things, the court produces this backlash that's political, that leads to mass incarceration. It's that causal story that I don't agree with, because I think even if the court had never decided Mapp and Miranda, we would still get a politics that would push for incarceration.
So, I don't believe in that causal link. But I do believe that because of these political forces that push for severity and kind of are constantly going to be asking for more governmental powers that where I think the court is justly blamed is for not enforcing the constitutional line against allowing that to operate with free reign. And so it is a different Supreme Court blame story [chuckles] but I do think that the parts that Bill gets right in his diagnosis is maybe less when he sees the court as an original sin that sparks the politics. But once he starts talking about the politics, I think he's spot on with the pathologies and all the ways in which it goes crazy, and that part I agree with. If Bill were still around and I so wish he would, I would love to know what he would think about this idea of the court coming back in to actually do the things it's supposed to do, as opposed to, maybe some of the things he thought they should have never done originally.
Will: Can I ask one last question? It might be the kooky libertarian question. [Dan laughs] I think we've been talking about it sort of as if criminal procedure is special, but I'm guessing if our Gorsuch genie were back, he would say, “Yes, you're right. This is all outrageous, but you know what? This happens outside the criminal process too.” We have our version of Salerno that businesses regularly get orders from the government. The administrative state just comes in and tells you what to do before hearing or a trial. There's tons of plea bargaining. That's why those dear colleague letters were always so effective and so coercive.It's just like, “Do what we say, or else we're going to come in and come after you. It's just a whole regulatory system that operates in the administrative state without trials.
We've got our administrative law version of Terry v. Ohio. If you run a regulated industry, any kind of business, really, the government just gets to like wander in and search stuff and demand to know stuff all the time with no warrants at all. And it's not like the excessive fines clause jurisprudence for businesses is super. We got a couple of punitive damage cases too, but they're the exceptional cases. So, isn't the whole list kind of also just true of the government and the administrative state.Now, the stakes are lower because it's money and not liberty, and maybe it's not affecting us as much of subordinated class and so on, but shouldn't we be kooky libertarians?
Dan: And, Rachel, you teach administrative law sometimes-- [crosstalk]
Rachel: Yeah. Although I haven't in a while, since the whole earth has moved beneath me in that area. [laughs] If I were to teach, I think it'd be a whole new course. But, yes, I think there's a lot of parallels there.I mean, I really do. And I've written about them. And I think they're strong and I think the interesting thing is that in the administrative law space, recognizing all the potential for all that abuse, there have at least been some checks put in place there with the Administrative Procedure Act and separate law enforcement and adjudication, and maybe those are inadequate for the true libertarian that won't like it. But we've actually done a lot to try to rein in the government on that side. And weirdly, not at all on the criminal space, because we've trusted con law to do it.And then con law hasn't done its job. So, I've actually written a fair amount about the parallels between the two, because I think they are there.
And what has been most interesting to me is that, yes, there are parallels.Obviously, the liberty interest in a criminal proceeding is far greater-- I would argue is far greater than property interests. Although property interests are important. Liberty is liberty.But yet we've done more to put guardrails up on the administrative side of the line. And so, to me that if you were going to have an imbalance, it would go in the opposite direction. But instead, we have this kind of weird outcome.But the other thing I would say to that is, I'm happy to then ride the coattails of what is currently happening on the administrative state side of things, because I do think they are going to town on that stuff. Jarkesy was one shot across the bow to say, like, “You can't give them SEC fines and consequences without giving them a jury trial.” I said that was fine. Jarkesy? Sure, but then you know what? [laughs]
Will: [laughs] Now to prison.
Rachel:Let me introduce you to my friend, the Sixth Amendment, and Article III, where the criminal jury trial was in there from the outset. And so, I think I'm comfortable with saying they could together be more closely scrutinized. But I think the world that we're living in now is the completely bizarro backward one, where it's only the administrative state that's getting this closer scrutiny and overruling the precedent and rethinking everything, but not the criminal side.So, if you're going to have a disconnect, I think it has to go in the opposite direction. And if they're going to go together, then I think you do need to rethink fundamental things on the crim side of the line, just like you'd be willing to do on the other. I mean, we'll see what happens with Humphrey's Executor. I'm genuinely curious, because I think they're chomping at the bit to overrule it, and they would love to do it. But I think they're scared to death with the current administration and the Fed and where it'll go. So, I'm going to leave you guys in your expertise [Dan and will laughs] where they're actually headed.But I know they want to.
And so, I guess what I just want is to get them to want to overrule these cases too [laughs] because I think, and it goes kind of full circle to where we started with. Once you get the instinct, your originalist instincts kick in to say, “This was bad from the beginning, and I don't want this to exist anymore,” that at least maybe you don't overrule it completely, but then you start putting the limits up, which is obviously what the court has done with Humphrey's. It's piecemeal over time, created little exceptions, you can't have removal within removal, and you can't do-- they've been chipping away at, at what it means to talk about independent agencies over time. And whether they give the full death blow or not, they've already done a lot of limitations. And I'd like them to do something like that for the cases I talk about in the book.
Dan:All right. Well, there's many more questions I would love to ask, but I think we're out of time. So, I will direct our listeners to the book, Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration, published by Harvard University Press.It is on sale now, so I strongly encourage you to buy it. And I think it has stuff in there that is going to be of great interest to people that are not lawyers, not super familiar with criminal procedure. The book does a great job kind of situating each one of these doctrines, not just focusing on one case, but kind of putting them in a broader context.So, it gives you an overview of each of these areas of law. But there's also a lot in there, even for people that know these areas of law very, very well. So, please check it out. And, Rachel, thank you so much for joining us.
Rachel: Aww. Thanks, guys. This was really fun. I really appreciate it.
Dan: So, please rate and review the show on your podcast app of choice. Visit our website, dividedargument.com, for transcripts of the episodes. Visit our blog, blog.dividedargument.com, where we're actually going to have a post by Rachel that's going to be out around the same time this episode comes out. store.dividedargument.com for merchandise. Send us an email, pod@dividedargument.com, or leave us a voicemail, 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors.Thanks to Rachel for taking the time to join us on the show.
Dan: And if there is a long delay between this and our next episode, it will be because defenders of Justice Rehnquist and Justice Alito have ordered us indefinitely detained.
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