The Federalist Society at Miami Law hosted senior attorney Clark Neily for a discussion about criminal justice reform recently on the Law School campus.
Neily is currently the Vice President for Criminal Justice at the Cato Institute, a public policy research organization focusing on the principles of individual liberty and limited government. He spent 17 years in constitutional litigation, during which time he served as co-counsel in District of Columbia v. Heller, the historic case in which the Supreme Court held for the first time that the Second Amendment protects an individual right to own a gun for self-defense.
Neily has become deeply involved in the question of criminal justice reform as a result of his work in litigating cases of federal civil forfeiture, a controversial legal process in which authorities seize assets from someone suspected of criminal activity.
"I have come to the conclusion that actually we have two criminal justice systems in America: we have the one that’s described in our constitution and mythologized to us as a people and taught to our children in schools, and then we have the one that actually operates in real life,” Neily said.
The Institute for Justice, the public interest law firm for which Neily worked, boasts a 100% win rate against the federal government in litigation disputing federal civil forfeiture, suggesting the authorities had largely been careless in their forfeiture efforts.
“It might be the case that we operate our criminal justice system as cavalierly and as sloppily as we do the civil forfeiture work that I had litigated,” Neily said, “That began to really upset me - as a professional public interest lawyer, as an American citizen.”
“We have essentially a giant wood chipper form of criminal justice that sucks in defendants and spits out convicts,” he went on. “The people who wrote our constitution designed the criminal justice system with citizen participation at its very heart. If you look at what we’re doing in real life, where’s the criminal jury trial now? It’s almost completely absent.”
According to figures from the Bureau of Justice Statistics, 90-95% of federal and state court cases are resolved through plea bargain. Neily attributes this figure to a combination of factors which he described in the context of a hypothetical justice system aimed at eliminating the jury trial altogether:
“We might create a system that is so complex that individuals who are not lawyers have no hope of navigating it so you need someone to help you; you need a lawyer. But then we’ll make legal representation so expensive that ordinary people can’t afford it. So then we’ll provide you with a government-appointed lawyer but we’ll make sure that your public defender is so overworked and underpaid that they don’t have time to devote more than a few hours to your case and so effectively you’re on your own. And then we’ll equip prosecutors with a whole toolbox of coercive techniques to put the screws to you and make you agree to a plea bargain.”
Neily’s 2013 book, Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government, discusses his ideas about judicial reform in detail, as well as other issues pertaining to limiting government power.
“Mr. Clark Neily’s engaging and fast-paced conversation about the dangers of overcriminalization in America drew a considerable crowd of curious students,” said Alex Kiselev, Secretary of the Federalist Society. “We were excited to see so many people come out to listen.”
The Federalist Society at Miami Law focuses on the importance of individual freedom and separation of governmental powers. “Our mission is to advance the principles of liberty by encouraging balanced and open debate about the fundamental principles of individual freedom, limited government, and judicial restraint,” Kiselev added.
The Federalist Society’s next event will be held on Thursday, November 2nd at 12:30 PM in room F200; cohosted by the Hispanic Law Student Association, the event will feature Professor Ilya Somin discussing communism and its effects.
Clark Neily left the audience with a call to action in his parting remarks:
“Join me in thinking outside the box. We can fix this problem, but we have to not get hung up on the idea that the way things are is the way things need to be. If all of us will think about what we need to do to make it better we can make it better, but we have to hold ourselves up to that standard.”