Ted Cruz: Rein in prosecutor power, lower "draconian" mandatory minimums

Several Texans are featured in a new book by the Brennan Center, "Solutions: American Leaders Speak Out on Criminal Justice."

Regular readers are used to TPPF's Marc Levin's focus on outcome-based supervision policies, as well as Rick Perry taking credit for probation policies he first vetoed then grudgingly accepted. A graph available elsewhere on the Brennan Center site shows why voters might rightly be dubious of Perry's plea to follow the "Texas Model." He's presided over a modest decline in incarceration rates, but Texas remains the nation's incarceration capital, warehousing more inmates than any other state, including much larger California.

We've heard from Levin and Perry before. But Ted Cruz's positions, for me anyway, stake out new territory. His "essay focuses on three vital areas of concern: overcriminalization, harsh mandatory minimum sentences, and the demise of jury trials." On overcriminalization:

The place to start is with incremental reforms aimed at mitigating the harmful effects of overcriminalization. Congress should begin by requiring that all criminal offenses are put into one title of the Code, Title 18, or if that proves too difficult, Congress can enact a law that prohibits criminal liability on the basis of any statute that is not codified or otherwise cross-referenced in Title 18. Having thousands of criminal laws scattered throughout the entire Code works an intolerable hardship on the public akin to Caligula posting his laws high up to make them difficult for the public to see.

To ameliorate the effect of redundant or overlapping criminal laws, Congress should also pass legislation requiring courts to presume that a single criminal act or transaction should be treated as one crime subject to one punishment, even if the act or transaction is punishable under multiple statutes. And to mitigate the consequences of criminalizing regulatory offenses, Congress should repeal criminal penalties for violations of agency regulations. At the very least, it should require that any new regulations carrying criminal penalties be approved by Congress and the president. Perhaps most importantly, Congress should enact legislation that requires the government to prove the defendant knowingly violated the law — or that, at least, allows a mistake of law defense — for certain classes of crimes that have no analog in the common law or that no reasonable person would understand to be inherently wrong. Where the government has criminalized non-blameworthy conduct for regulatory purposes, ignorance of the law should be a valid defense to criminal liability.

He also lamented "the ratcheting up of mandatory minimum sentences over the last several decades" to "draconian" levels, and spoke of "the undeniable costs and dubious benefits of mass, long-term incarceration of nonviolent drug offenders."

Perhaps Cruz's most notable complaint, however, involved the "demise of jury trials." He wrote:

Plea bargaining has become the norm in our criminal justice system, while the constitutional right to a jury trial — which the Founders understood to be a bulwark against tyranny — is now rarely exercised. Contrary to popular perceptions, we no longer have a system where a jury determines a defendant’s guilt or innocence in a public trial. In 2013, 97 percent of all federal criminal charges that were not dismissed were resolved through plea bargains; less than 3 percent went to trial.

In this plea-bargaining system, prosecutors have extraordinary power, nudging both judges and juries out of the truth-seeking process. The prosecutor is now the proverbial judge, jury, and executioner in the mine-run of cases. Often armed with an extensive menu of crimes, each with their own sentencing ranges, federal prosecutors can wield their discretionary charging power to great effect by threatening the most serious charges that theoretically (if not realistically) can be proved. If the accused succumbs to the threat and pleads guilty, which often happens, the prosecutor agrees to bring lesser or entirely different charges that carry a lower sentencing range.

Given the risks involved in turning down a plea offer, it is not unheard of for people to plead guilty to crimes they never committed. Of the 1,428 legally acknowledged exonerations recorded by the National Registry of Exonerations since 1989, 151 (or roughly 10 percent) involved false guilty pleas. It is estimated that between 2 and 8 percent of convicted felons who have pleaded guilty are actually innocent. In a federal prison population of 218,000 — the number at the end of fiscal year 2011 — where 97 percent pleaded guilty, that means that anywhere from 4,229 to 16,916 people could be imprisoned for crimes they did not commit.

The plea-bargaining system is premised on the assumption that there is relatively equal bargaining power between the accused and the state. Nothing, of course, could be further from the truth. Mitigating the coercive effect of the plea-bargaining process will require empowering the defense. And one way to do that is to reduce the informational asymmetry between prosecutors and defense counsel. Plea offers are often foisted upon the accused before the defense has had enough time to investigate the facts, and the longer the investigation takes, the less generous the plea off may become. Congress should pass legislation that requires the government — whether constitutionally required or not — to disclose material exculpatory evidence before the accused enters into any plea agreement. This reform will reduce the risk of false guilty pleas by helping ensure that the accused is better informed before sealing his or her fate.

Very few people in 21st century criminal justice debates have focused on the increasing omnipotence of prosecutors in the process, usurping the role of judges, juries and even legislators thanks to wide discretion and the plea-bargain process. So that's a new an interesting frame for the debate among national GOP leaders. Similarly, a presidential candidate estimating that between 4-17,000 federal inmates "could be imprisoned for crimes they didn't commit" opens up the conversation considerably. Few elected officials in either party are willing to publicly countenance the idea that so many innocent people may be sitting in prison.

This may be the first presidential campaign since '88 and '92 when criminal justice issues come to the fore, and on sharply different vector from the tuff-on-crime fetishism of a quarter century ago. Here's an interesting, related National Journal item on the prospects for federal sentencing reform.