Welcome to Cato Audio for March 2023. I'm Cato Brown. In this month's offering, a deep dive into the uncertain world of regulating decentralized finance. Cato's Jay Schweigert examines what creating a culture of regular, dependable accountability for police might look like. And Cato's Clark Neely details our vanishing system of criminal trials. First up, this month's Cato Roundtable.
With the publication of the Human Freedom Index, we now have data going back to 2000 on human freedom by country around the globe. And the picture is not good. We're joined by Ian Vasquez. He's vice president for international studies at the Cato Institute and director of the Center for Global Liberty and Prosperity at the Cato Institute. And at the same time.
We face attacks on globalization, and we're going to talk a little bit about how related those things are. And we're also joined by Joe Norberg, a senior fellow at the Cato Institute, and he is also executive editor at Free to Choose Media. So, gentlemen, welcome. Ian, if you don't mind, the pandemic, of course, wreaked havoc on human freedom at the country level. What have we learned both about the pandemic, about freedom, and about the larger trend since the year 2000? Well, you mentioned the Human Freedom Index that we publish and now has...
data going back to the year 2000, and it goes through the year 2020, which of course is the pandemic year. And what emerges is a picture that looks something like this, where from the year 2000 up until the year 2007, you see global freedom on an increase, and it reaches a high point at around the year 2007, and then begins to slowly descend. And that coincides with a period that begins more or less around the financial crisis, the global financial crisis, and the rise of all sorts of illiberalisms. populisms of the right and left authoritarian populisms in countries around the world through the year 2019. And then in the year 2020, you just see this gigantic drop in freedom, in global freedom. And it's really striking because of its extent and the degree to which freedom drops off. 94% of the world's population, we calculate, lost freedom in the year 2020. And that's after nearly 80% had been losing freedom in the past several years. And that drop in freedom was significant.
It took us back more than two decades in terms of the freedoms that were gained during that period. And of course, only time will tell how much we will have recovered since that year. I think it's fair to say that today we are less free than we were, say, in January 2020. But that's the overall global picture. And I think that that mirrors what has happened in so many countries around the world, whether they're democracies or non-democracies, rich countries or not. Joe, when we see countries that are losing freedom, how does that correlate with countries that are, in a sense, turning inward?
That is, they do not want to engage as much with the rest of the world. They are less open. You wrote a book called Open about the degree to which people and countries are willing to experience new things and, you know, take that gamble, take that risk on a willingness and openness to the rest of the world. Yeah, openness and globalization is often the canary in the coal mine. Because when we see these kinds of shifts in an authoritarian direction towards more of statism and populism, one thing they really dislike is openness. Because with openness comes surprises, new ideas and innovation and competition. And that's something that they don't like. So the picture for globalization is actually remarkably similar to what Ian just said about human freedom generally.
Over my lifetime, since the early 1970s, we've seen an increase in trade as a share of global GDP. So it's basically doubled from the early 1970s until a peak in 2007, 2008. And then after the global financial crisis, since then, we've basically seen for every liberalizing trade measure in a country, we've had four to five protectionist ones. We've seen a drop in foreign direct investments. It's been reduced by...
almost three quarters since 2008. And this share of trading and goods and services generally has not just stagnated, it has begun to decline. And that's worrying for so many reasons, for freedom, for prosperity, the abilities to specialize and to make sure that our countries are competitive and fully functioning. And it's also the case that protectionism is contagious. So when someone starts with trade wars, with...
tariffs, then others step up their game. And they want to do the same thing because they think they're losing out unless they also implement these tariffs. And we can now see that with America's very large subsidy packages, where every other country thinks that this is a way of taking their jobs and businesses, so they implement their own subsidy programs right now. You mentioned the financial crisis, and I wonder the degree to which that sort of turned the tide, in a sense, because I'm thinking of Iceland specifically, which was heavily invested in a lot of these sort of what turned out to be not very high quality investments. And I wonder if the extent to which the global financial crisis played an outsized role in leading countries individually to believe that, well, maybe it is time to look inward and not be as open as we have been in the past.
Yeah, I think history speaks loudly on that point when everything's go wrong in a dramatic fashion and when you're worried about the world, especially when it seems like the threat comes from the outside. And this is the financial contagion, but also the pandemic. Then people start to build walls and turn inwards because they think that they can control things in a better fashion. But obviously then often, quite often, because they also want to benefit particular economic incumbents, they're especially... favored businesses and local monopolies. And that's the power that they get when you start to turn inwards and towards more protectionism. Ian, when we take a look at the Human Freedom Index, what are some of the individual measures that stand out to you as particularly telling in terms of maybe having some predictive power about where we're headed?
Well, you know, Johan just talked about globalization and trade. And in fact, freedom of trade was one of the areas that has most fallen over the last many years. And if we look at some of the other areas, we find that they are the rule of law, freedom of expression. And so that when the pandemic hits, what really is happening during the pandemic is that almost all, well, most of the different categories of freedom that we look at, including freedom of movement and almost every indicator of economic freedom, not just freedom to trade, fall. And as I say, they do so notably. And you can say that the pandemic had that extra effect that a crisis had, but it was probably more severe. I mean, there's no doubt that it was more severe than the financial crisis in terms of the loss of freedom.
It certainly did accelerate trends that were already happening beforehand. Scholars of free speech talk about a free speech recession that had already been going on for many years all around the world again in democracies and non-democracies. And certainly that was accelerated notably during the pandemic all around the world. Historically speaking, why do countries turn inward? Why do countries decide or the leadership in those countries decide to restrict freedom? And what happens to societies that make those decisions?
Well, I think there's something in human nature that tells us when you're in a crisis, you kind of want to hide in the tribe. You want strongmen and big governments to point out the right way for all of you. And that, I think, is the reason why we see it in times of, you know... major economic crises, foreign geopolitical threats or pandemics. Historically, we've seen great civilizations who suddenly turned inwards because they thought that this was a way to regain their power and their strength in a dangerous world. But the problem was that those eras were golden originally because they were open to new ideas and innovations and competitions and a competition that constantly forced them to upgrade ideas and methods and productivity.
there's this paradox when we're in a crisis we turn inwards because we think it'll protect us and we've seen the same thing when it comes to globalization now not just after the financial crisis but specifically after the pandemic country after country is trying to repatriate supply chains because they think it's somehow dangerous to have these extended supply chains and be dependent on producers on the other side of the globe but and that makes sense it sounds intuitive that it's better to have everything close by but what we also see is that the most dangerous thing you can do is to concentrate everything you depend on geographically that's putting all your eggs and your whole supply chain in one geographic basket. And most things that go wrong go wrong in a particular region. So it could be a war or an epidemic or a natural disaster. And when things go wrong locally, then everything falls apart immediately. What we learned under this pandemic is quite counterintuitive, but something that trade economists have always told us that countries that were more dependent on trade did much better than others because they then had alternatives.
And even more counterintuitively, companies and regions. And there's one incredibly exciting University of Texas paper on the Indian economy, where economists look at the very detailed trade data that they have in India, partly for the sad reason that they have a very complicated trade bureaucracy in India. But it gives us lots to look at. And then what you realize is that the companies that did worse and were the least resilient were the ones who had... fairly simple, primitive supply chains, only dependent on a few producers, whereas companies that were dependent on extended supply chains and inputs that were dependent on other inputs in other places, they did much better. And few people believe this. It doesn't sound intuitive, but that's because if you have very extended supply lines, it also means that there's always some place that's still standing, that's open even in a world of lockdowns, one place that can produce these things. And you can shift and change production and get inputs and resources from other places. Whereas if you're dependent on just one place, and that's the only kind of reliable trade.
relationship you have. If that collapses, everything's gone at once. So we have to, in times of crisis, try to count to 10 and not fall for this part of our human nature that tells us to just go home. I would like to think that countries, societies, and individuals have learned that lesson that Johan just mentioned about the pandemic and experiences with openness and trade. And yet what we've seen over the past many years during a time where We can unambiguously say that humanity has never had it so good in terms of indicators of human well-being, not just in terms of income, but all sorts of indicators of life expectancy, access to safe drinking water and so on. And especially in the developing world in the past several decades during this era of globalization, the advances have been spectacular, so much so that the gap between.
the rich and the poor in this world in terms of almost any human development indicator, any indicator of human well-being has been closing dramatically. And yet what we've seen around the world in societies that have been very distinct is this rise of liberalism, this rise of nationalisms and authoritarian populisms in places as distinct as Chile or Mexico, Western European countries, Central European countries like Hungary or Poland. We see it in Turkey. big nationalist push going on in China, Russia, and on and on. And I think that the big challenge is to try to explain why all of this is happening in such different societies, such different countries, all at about the same time. And I think that economics...
partially explains that. But to get to the answer, you really have to look at each individual country and see what the story is. What happened in Chile is very different than what happened in Mexico, and it's very different from the kind of populism that you see in the United States. And there are many factors at work. In some countries, some factors play a bigger role. It can be unfulfilled expectations with years of low growth that can create dissatisfaction. It can be the role that ideology plays, maybe a very pernicious narrative. In Chile, certainly, there was a very pernicious but very prominent
leftist narrative that the far left was promoting for many years that said that the last 30 years of tremendous progress was really not so much to be envied and that was at all unfair. And there wasn't much pushback against that, even though by any indicator it was a success story. I think we just have to look at individual countries to be able to tell the appropriate story. And I think that many factors are at play, but some combination of those factors apply to some countries and not others. You know, our colleague Scott Lincecum tells a story about the creation of the vaccines that were created, you know, pretty much got started as soon as it was this illness was known, as soon as this virus had been identified. It was a massive mobilization across many countries for brainpower, for securing the chemical inputs and the hardware infrastructure in order to not just make the vaccines, but store.
vaccines in ways that were capable. And then there was an additional global mobilization to get those vaccines distributed widely across the globe. And that's the kind of story that is humanity at its finest in facing a crisis. And I wonder, is it what Steven Pinker always tells us that we're programmed in a way to, well, that thing just happened. That's fine. Whatever. Let's focus on this doom and gloom here. Is that part of it?
i i think that there's definitely one part of it that uh nature is an economist and what we don't have to worry about we forget and because that's a part of our evolutionary mindset if we've solved the problem we just take that as a given and we move on to the other problems that we have to deal with and in a way that's a good thing it means that we'll probably solve more problems but if we forget what made it possible to to make those gains then obviously we will forget all about the institutions and the freedom and the openness that's needed to make sure that that happens. And that's why we need not just the data and the facts, we also need those stories to talk about how things...
how we got the solutions from previous eras of voluntary cooperation across borders, like the vaccine. I think that's such a great story. It's, you know, it's a Hungarian biochemist meeting an American immunologist at the University of Pennsylvania. And they then cooperate with the descendants of Turkish migrants to Germany with their skills set and their ideas. And they come up with some ideas, but they need to cooperate with American Pfizer to make sure that they can develop this quickly. And how do you do that in a world that's under lockdown?
only possible because Pfizer had access to private, to corporate, yes, so that they could take genetic material across the Atlantic while the world's airlines were devastated. So if someone had told us before, and that made the vaccine possible, and then, of course, it's also the story of all those components that make it possible. I think it's something like 280 different components and materials from 19 different countries that made the vaccine possible. And if you had told people... before the pandemic happened. So how are we going to solve this? I think most people would say intuitively, well, we need a big government and they're going to have to have a plan and a regulatory SAR who just fix this. If you say, let's allow people to trade voluntarily across borders, let's make sure that Turkish migrants are allowed to enter Germany and work at universities over there and Hungarian biochemists are allowed to the University of Pennsylvania, people would have said, you're crazy. But that's actually the thing that saved us. And that's often the story when you look at innovations and when we count all our blessings when it comes to science, innovations, business model. There's often a story like that out there.
Ian, you made reference to countries, particularly those south of the United States, where the case had not been made, that moral case for freedom. And we can talk about the benefits, the goods, the deliverables of freedom, of globalization. But in a lot of these countries that you mentioned, particularly, I think if I recall correctly, Chile, that moral case just wasn't. wasn't being presented and selling that case, if I understand you correctly, is of utmost importance. I think that's right. And I think that the example of Chile has important lessons for the United States. After all, Chile was a country that by any indicator was one of the great success stories in the developing world. It was almost developed. And yet Chileans knew because they were told by the universities, at the schools, by the media, by important business associations and leaders at the museums, all of the cultural spaces in Chile.
that somehow it was unfair, that somehow inequality had increased, that somehow mobility was just non-existent. All of that is actually false. What was repeated over and over again were actually factually incorrect statements that, because they were repeated so often, people believed. And that really did help create the stage for a new leftist. far-left president to come in and the initiation of a constitutional assembly that wanted to introduce quite a radical leftist constitution. Luckily, it was rejected, but they're still in the process of coming up with a new one, and that's a big threat to freedom. And I think that that is a lesson that we have to take seriously here in the United States. We were talking a moment ago about...
globalization and the vaccine and how really Scott Lincecumbe's right to call that triumph of globalization. And it's really a triumph of freedom. And one of the things that I like to point out when we look at the data on human freedom and human well-being, because the two are strongly related, is that these improvements in human well-being in the developing world, poor countries, have been occurring virtually everywhere, including in countries that have not increased very much their level of freedom. Even there, you see increases in health indicators and life expectancy and so on. Basically what you're seeing there is that the whole world is benefiting from freedom in the free world. It is very much as Hayek, Nobel laureate Friedrich Hayek said more than 50 years ago, that the benefits of freedom are not limited just to the free. The unfree benefit as well. You go to the developing world today and you see poor people with cell phones. They benefit from the medicines that are invented in free countries, the innovations, the capital, and so on. And so what's happening is that the free world is literally lifting up all of humanity in terms of standards of living. And that means also...
that the freedom of the relatively free countries like the United States is very important, not just for Americans, but for the rest of humanity. And I'm afraid that one of the things that we've been tracking in the Human Freedom Index is a long-term decline in freedom of the United States. It used to be... close to the top. Now it ranks on our Human Freedom Index 23 out of 165 countries, still among the freer countries in the world. But we'd like to think of the United States as a bastion for liberty in the world. And I'm afraid it's on a downward spiral. In the last report, it was ranked at 16. In the year 2000, the United States ranked sixth. And so I think that that's something that we need to be concerned about, especially in an environment where the politics on the right and on the left are being influenced by these more extreme illiberal views. Yeah, I think
It's important to understand that the development in itself won't do this for us. That's not enough. Ian mentioned what happened in Chile. It's really by far the most successful Latin American country in recent decades. And yet we had all that discontent in the midst of...
relative abundance and opportunity. And that's also a story that we've seen once in a while in history. We had the same experience in Sweden in the 1960s when we were one of the richest countries on the planet and people were discontent, asking for more, fixing the problems of inequality and so on. And the then Social Democratic Prime Minister, Targa Erlander, talked about this as the discontent of raised expectations. It's not enough that things get better because then you also raise your expectations and you want more instantly and fix all those things that you might not even have considered as problems before. It was just the way the world worked.
But nowadays you realize that you can get out of poverty. You can get an education. So why isn't all of this happening to everyone at the same time? And that's, you know, I often go back to the old saying that he that has satisfied his thirst turns his back to the well. You begin to take it for granted. And then you forget the institutions, the freedom, and then all the hard work and the innovations that it took to create this. And that's a challenge that we always have to deal with. We have to talk about human progress.
make sure that people don't take it for granted because it takes something it doesn't happen by itself it takes freedom and we have to constantly remind people of that all right I think we're going to leave it there. I agree with that, by the way. Sorry. I agree with that, by the way. All right. We're going to leave it there. Joan Norberg is a senior fellow at the Cato Institute and executive editor of Free to Choose Media. He's the author of numerous books, including a few for the Cato Institute, some very popular ones, in fact. Joan, though, tell us what's the name of your next book and when should we expect to see it? The next book is called The Capitalist Manifesto. I borrowed parts of that title from another famous manifesto, and it'll be published at least in Britain in June, probably September in the US.
All right. And Ian Vasquez, vice president for international studies and director of the Cato Institute Center for Global Liberty and Prosperity and co-author of the Human Freedom Index. You can, of course, follow all of our work on these important subjects at Cato.org. The collapse of centralized crypto exchange FTX has driven congressional hearings and calls to further scrutinize and regulate cryptocurrency and decentralized finance or DeFi. But how does DeFi compare to centralized or traditional finance in terms of risks and benefits? And how should regulation take into account those distinctions? At a Cato policy event, Tiffany J. Smith, a partner at Wilmer Hale and Dane Lund, a core contributor at Alliance DAO, offers their thoughts.
Good afternoon, everyone. Thanks so much for the invitation to be here. As Jennifer mentioned, my background is I've been focused on the regulation of financial intermediaries for the last 14 years. And in that experience, I've always focused on the federal securities laws, the state laws, and what applies to those entities holding other people's money, right? And as we think about crypto and we think about the potential there, I see what is happening is that because there is a push for regulation, we're trying to, in some respects, blindly push.
the regulations that are really meant for centralized intermediaries onto all types of crypto and not really distinguishing between those projects, protocols, where you have a single person who is making the decisions about how the protocol works versus the more decentralized. projects and protocols where it's not really a single person, but instead it's a dispersed group of individuals. And we're going to talk more about what decentralized legislation means. But my worry is that by forcing a set of regulations on a group or projects that don't necessarily meet the same, that don't have the same standards and the same functions as centralized exchanges, we are one, deciding as a policy matter that DeFi is bad and we're overlooking the benefits of the technology and really why it is that you have individuals opting in to these protocols.
It always comes down to client demand, right? It's the fact that historically some centralized intermediaries have discriminated or not given access to certain groups. And that's why you have people who are underbanked or unbanked completely. And if you think about the rationale behind people wanting to opt in to these services, then you get an impetus to try to figure out how these protocols are different from centralized exchanges and then figuring out the types of regulations and standards that make sense. I'm not suggesting that we don't have standards. And I think that some of the language and the verbiage from folks in the DeFi and crypto community from years ago that we don't have regulations is totally false. We need to have regulations because anytime you're dealing with other people's money, we have to have those regulations. But we need to think about how DeFi is different, starting with the fact that these are very much.
in on their computer-focused native protocols where you have to worry about things like cybersecurity in a way that you don't need to necessarily worry about in the same way for centralized exchanges. So thinking about the differences in starting off developing regulations from that point, I think is a good starting point. And how we get there is by having dialogues like this, having discussions and saying from the industry saying, yes, we understand that we need to have regulations. Yes, we understand we must protect consumers. And then having the regulators understand that there is a willingness to...
engage and have regulation, the desire to have regulation, but the regulations we have for essential intermediaries don't necessarily work for decentralized players and protocols. Thank you. Thank you very much. So I think we face two crises that are very important that kind of come to a head in this discussion. One is a crisis of competitiveness. The number one class at Stanford right now is a blockchain class. We have some of the best developers in our country really focused on this technology and they're very excited about it. They're not going in with blind enthusiasm. These are people who have a real understanding of how technology is built. They see the logic and they're building things that go past what I'd say are the obvious use cases of blockchain technology, which is pure transactional.
These use cases apply to things like human organization, the development of art, the nexus between social movements and assets. There will be new concepts that come from this. But it's very important if the United States wants to maintain a position of competitiveness in technology generally that we face the second crisis, which is a crisis of understanding between the private market and the government. So we have a legibility issue in many cases. I think DeFi, focusing on one use case, is a very good example of this.
interesting and valuable use cases of this technology that do relate to moving large amounts of money, which do trigger some of the duties of government and some of the purposes of regulation. But they also trigger some of the most important aspects of privacy rights, of rights of citizens, of organizational rights. And so if we're not able to have a discussion where we're honest about what the technology is capable of, then we're going to lose on the primary crisis, which is the competitiveness. So my hope is that... through today's discussion, we get to legibility to understand how we can be more competitive. Tiffany J. Smith is a partner at WilmerHale and Dane Lund is a core contributor at Alliance DAO. The police killing of Tyree Nichols in Memphis is exceptional, at least in a way. Few people defended the actions of the officers who killed him. And after the video quickly surfaced, the perpetrators were quickly charged. And yet creating a culture where that kind of brutality simply doesn't occur with such great regularity will require a heavier lift. Cato's Jay Schweiker says that will mean ending qualified immunity.
This case seems rare in a sense. We have cases of police brutality, egregious misconduct on the part of police. One, this was a specific unit and not just a bunch of cops who happened to be together at one place at one time. Two, the video was released fairly quickly. And three, almost no one defended these police officers and their activities, and they were charged fairly quickly. And I think some people thought, well, that's good.
but it still highlights a substantial problem. Yeah, absolutely. And I think I like that framing, that there's a way in which this incident is exceptional, and it highlights and illustrates some very important problems with our current policing system. But it's also... you know, maybe not representative of the sort of ordinary problems that we face in terms of police accountability. I mean, I think it is, you know, an especially shocking and egregious degree of unjustified violence. I think anyone who has actually, you know, brought themselves to watch the harrowing video, you know, comes to that conclusion. But I think that in terms of and you're right, I mean, in terms of response, you know, we did get the video fairly quickly. There has been pretty swift action in terms of criminal prosecution. And that's.
good in a sense, but accountability doesn't just mean, can we ensure justice for the people who committed this particular act of violence? It's how do we inculcate a culture of accountability, of predictable accountability, such that these kinds of events don't occur in the first place? Yeah, in a different context, in the context of our criminal justice system, everyday defendants going to court and receiving sort of outrageous sentences, where the focus has been is, well, how do we get these people out of prison sooner? And of course, what you're talking about in this context is, no, no, no, no. this is a horrible consequence of a bad system. This is a horrible consequence of a system where these sentences are not rational. And in the context of policing, it's, well, how do we prevent this kind of thing? Yeah, exactly. And you don't get this kind of violence, this kind of reckless disregard for traditional...
I mean, not even just not even just constitutional rights, but for basic norms of policing, unless you have a system where officers just simply don't expect to be held accountable on an ordinary basis. When Clark and I were talking about this last week, he used the terms, you know, the broken windows theory of policing, which I actually think, you know, makes sense. Like if you have a system where police can routinely get away with more, you know, let's say ordinary constitutional violations, stopping people without reasonable suspicion or making unlawful arrests or unlawful searches, you know, that affects the culture that affects their expectations. And that's how you get this kind of egregious shocking. example of rights violations. And so, you know, certainly it appears that criminal prosecution is warranted here. Obviously, you know, we'll see what comes out of that. I'm not going to prejudge that, but that seems warranted. But, you know, frankly, most of the time, I mean, criminal prosecution is a blunt tool. It's an extraordinary remedy and it has an important part to play in police accountability, but it probably isn't the appropriate response for every instance of police misconduct in terms of rights violations. And that's exactly why, of course, we need a robust civil remedy that allows for more measured proportionate responses and puts the initiative on the victims of misconduct to decide whether or not they want to bring legal action.
And you can imagine a police chief. in a world in which, for example, qualified immunity does not exist or criminal prosecution just seems more likely in almost all of these cases of substantial or clear cut violations of rights. You can imagine a police chief saying, well, how do we get out in front of this? Yeah. And I think that it's, you know, I think that it's challenging. You know, obviously, I think there are police departments can take their own initiative. And, you know, I don't mean to sort of dismiss the idea of, you know, internal discipline and sort of, you know, training and hiring and retention practices that can address this. But I think, you know, in my view, that works in tandem.
with a robust civil remedy, right? A robust, predictable civil remedy is what gives every department the correct incentives to, you know, get out in front of that, so to speak, and what gives individual officers the incentives to take that seriously as well. You know, I think one direction where this is now that we're kind of getting past the initial shock of this tragedy and sort of talking about particular, you know, possible reforms, we're kind of coming back to the same issue that was that was being debated, you know, two years ago about the relative importance of individual liability for officers versus vicarious liability for police departments. And, you know, some folks even, you know, you know, people who broadly agree that qualified immunity is a problem have started suggesting, well, you know, let's just kind of sidestep this issue by making departments themselves directly liable and not worry about the individual officers. And in a way that seems like kind of a tempting sounding solution because it sort of would seem to avoid the political controversy of, you know, of letting individual officers be sued, which of course they currently can be. But the problem is that by putting it entirely on police departments, which in a sense means entirely on taxpayers, you may be able to compensate victims, you know, I mean, you may ensure that there's a remedy in case of violation, but you're not providing that.
upfront individualized deterrence that civil rights laws are meant to provide. And so you don't really do as much to prevent these kinds of offenses from happening in the first place, which is really the ultimate goal. Yeah, you don't necessarily encourage that cultural shift. Exactly. So when we talk about qualified immunity, some states and localities have gotten rid of it. Do we have any evidence so far of what that has meant in those jurisdictions? I mean, I think it's important to maintain a certain degree of...
you know, social science humility and trying to draw extremely broad conclusions in a very short period of time on a very complex social problem like this. But what we do know, I mean, certainly what we know for sure is that the sort of hyperbolic doomsday predictions about what would happen if you got rid of qualified immunity have not come to pass in Colorado and New Mexico and New York City, the jurisdictions that have essentially enacted state level qualified immunity reform. There have not been declines in police retention out of step with like national trends. And in fact, my understanding is that Colorado in particular has done better than national trends in terms of overall. retention questions. There have been, I know at least in Colorado, there have been a relatively small handful of cases brought under the new Colorado civil rights law. Most of those have, you know, a lot of those have still been working their way through court. So it's soon, it's a little soon to say exactly.
you know, what's going to happen in those typical cases. But what we have not seen is the so-called flood of frivolous litigation that opponents of qualified immunity reform have also predicted. You know, so again, I don't want to come out here and say, well, we definitely know that everything is better in those jurisdictions precisely because of these laws. But we do know that the doomsday predictions have not come to pass. And so my hope, and, you know, this may be naive, but my hope is we can have a slightly more rational discourse around this question, you know, in this sort of, I guess, this sort of next cycle of both potential federal and state-level reforms where, you know, we can acknowledge what evidence we have and that it, you know, it...
It just does not bear out the concrete predictions that opponents of qualified immunity reform have been making. The issue, at least at the federal level, has been a major sticking point for criminal justice reform. Is there any evidence that that is cooling? Or do you have any hopes that the discussions about qualified immunity being included in some sort of reform package will continue? I think it will be a challenge. I mean, I do have hope. I think that even already, I mean, Lindsey Graham, who was a pretty vociferous opponent of the Justice and Policing Act passing in the Senate in 2021, has acknowledged the problem here. He has been sort of one of the proponents of, I mean, just a couple weeks ago, he took to Twitter saying, well, I don't want to have individual officers sued, but police departments should be vicariously liable. And as we were discussing, I don't think that's the ideal solution, but it shows that he's at least talking about potential reforms. And so hopefully that sort of gets some momentum going for a conversation. I mean, honestly, I mean, one thing that gives me some hope is that I think,
You know, in the immediate aftermath of George Floyd's murder in sort of the summer of 2020, there really was this kind of moment where there was broad, you know, bipartisan agreement that there was something wrong with how qualified immunity was working. And there were disagreements on maybe what the right approach was, but it really wasn't that controversial to say there was a problem with this doctrine. And that, of course, is the point in time where we had Republican Senator Mike Rahn introduce a bill in the Senate that would have essentially eliminated QI in its current form and replaced it with a very narrow set of safe harbor alternatives. What I think happened, though, is that this narrative about the policy question of qualified immunity reform and police reform in general. got wrapped up with this much broader culture war narrative about, you know, defund the police versus back the blue. And in the aftermath of the 2020 election, I think the issue just was so hot because it really was no longer a question of, do you support this kind of qualified immunity reform? It was, which side's giant narrative of everything do you agree with? You know, and so it just kind of became impossible to like turn down the temperature. And so what I'm hoping is that we've gotten a little bit of distance from that. You know, and frankly, you know, this is, I mean, one thing that makes it a little bit more complicated here is that, you know,
You know, obviously Tyree Nichols was, you know, a black man who was killed by police officers. You know, the five officers immediately involved were also black. And so it makes it a little bit less of a easy fit for a kind of racially charged narrative, which I think, you know. I mean, our take is that those narratives, whether or not they're true, are often a little bit sort of distracting from what underlying structural changes can actually make the system better for everyone. So it may be possible that like the fact that there's not this sort of extreme, obvious racial aspect to this particular crime could make it turn down the temperature a little bit. You know, I think it's hard to say. And, you know, of course, we do have a Republican House right now, which, you know, given the current landscape of these proposals makes it challenging. But I hope that there can at least be, you know, progress in terms of.
rational discourse about this at the federal level, introduce the proposals that get past where we currently have drawn the lines, you know, and even if something isn't passed in this Congress, you know, it generates a little bit more momentum going forward. And hopefully, you know, what seems more likely is getting more state level reforms so that we continue getting evidence about what happens at the state level when you do this to, you know, again, push back against these hyperbolic predictions of disaster. I spoke with Chris Kemet of the NAACP Legal Defense Fund a while back, and he had a case of a young woman who had been strip searched. by school, public school officials. And I just think it's important that we stress that the violations of rights that can exist on the part of agents of the state can occur outside of policing as well. And that qualified immunity is potentially a bigger discussion than just police. Oh, absolutely. Absolutely. I mean, you know, obviously this issue has kind of come to national prominence because of high profile instances of police misconduct, but it applies.
you know, to corrections officers. It applies to education officials. That comes up in the context of cases like you mentioned with sort of strip searches or other sort of Fourth Amendment violations. Of course, it also comes up in the context of higher education in terms of free speech or free exercise questions where, you know, school officials are alleged to have discriminated against very often, you know, political or religious conservatives. You know, and so those are the kinds of qualified immunity cases that speak a lot more to Republicans. And so in a sense, I mean, again, this may be sort of naive of me, but like in a way, you know, obviously the best policy here is to get rid of qualified immunity across the board. But in a way that even though that's a broader proposal, it may actually be more politically palatable.
Because it brings in a broader set of agents of the state that get outside of this one particular context, because as much as the law enforcement lobby often makes a lot of pretty extreme misstatements about qualified immunity. The one reasonable argument that they make quite a bit is, hey, if qualified immunity is so bad, why are you only trying to take it away from us? Why not get rid of it across the board? You know, to which I and other sort of actual civil rights advocates say, you know, your terms are acceptable. You know, that sounds great. And so if that's the direction that the conversation goes, you know, I would be thrilled to see, you know, sort of.
principled Republicans in Congress say, hey, you know what? This is a problem, but it's not right to pick on police officers. It applies across the board. So let's have that broader discussion. That would be great. Jay Schweikert is a research fellow at the Cato Institute. The right to a trial by jury is in the text of the Constitution, and it's in the Bill of Rights. It seems like the framers thought it was pretty important. And yet we live in a world where the vast majority of convictions do not occur at trial. What are the costs of replacing our jury trial system? Clark Neely is Senior Vice President for Legal Affairs at the Cato Institute. We talked about the vanishing trial for this Cato Audio exclusive.
As you note in your chapter with Jay Schweikert and James Craven on restoring the jury trial, the Constitution provides that the trial of all crimes shall be by jury. That seems like a pretty clear-cut edict from the Constitution, and yet that is pretty close to the opposite of what we have now. So describe to me the situation we have with respect to jury trials. Yeah, well, at the time of the founding, there were a few institutions more sacred and more important to the founders then. the criminal jury trial, it's no accident that the right to a criminal jury trial is the only right found both in the text of the unamended constitution, as you just quoted, and also in the Bill of Rights. It's the only right that was listed in every single state constitution at the time of the founding. And if you actually look at the Bill of Rights, about half of the Bill of Rights has to do with criminal procedure. And most of that is about criminal jury trials. So you have this incredibly important institution. We can talk for a bit about why the founders correctly believe that jury trials in criminal cases were so important. And as you know, they have been essentially taken over and expunged from our system.
in large measure by what I call the extra constitutional practice of plea bargaining. Extra constitutional in the sense that it's nowhere mentioned in the text of the Constitution. It doesn't necessarily mean that it's unconstitutional, but I think because of the way that it operates, the way plea bargaining is actually done in our system, it very frequently is unconstitutional because I think it very clearly violates due process as practiced in many instances. All right. So what does that give us in terms of how that changes what the founders might have expected for the dispensation of justice? Yeah, well, basically what it does is it takes what was meant to be a very individualized approach to
the adjudication of criminal charges to be done at a retail level with significant investment of time, effort, and expense. And it transforms it into a wholesale process, the one we have today, that creates a system that's able to process millions and millions of arrestees, or about 10 million people arrested last year, and dispose of those cases with a minimal amount, a minimal investment of resources. Essentially, it has made the act of obtaining a criminal conviction extremely streamlined, extremely cheap, and... in most cases, quite certain for the government. It was not meant to be any of those things. So that, I think, is really what we, that is the catalyst for our policy of mass incarceration. We lock up more people than any other country on earth. And the thing that enables us to do that is this process of mass adjudication that plea bargaining is the driving engine of. So I was uncomfortable for a very long time with this notion of mass incarceration. But the case that you make here is by virtue of the way in which cases are adjudicated.
that it is so efficient that it might as well be an assembly line. Cases are, we have laws on the books that effectively make this process quick and easy for the government. What does that give us in terms of lawmaking? Or does that impact how lawmaking gets done? It's hard to show a direct through line here, but it seems rather clear that it must. We have a vastly over-criminalized society. The government criminalizes far too much conduct that should be either left alone entirely or for which some other response would be better. And one of the reasons we're able to do that is because we don't...
have to sort of pay the full constitutional freight for enforcing those laws. I'll give you an example. There was a case a couple of years ago in New Orleans where a waiter at the famous restaurant Antoine's was prosecuted for selling a small amount of marijuana and the prosecutors brought felony charges. The guy was looking at more than 10 years, but he refused to plead guilty. And when the time came to take that case to trial, they were unable to impanel a jury because essentially the prosecutors were being laughed out of court. People were saying, oh, I'm not going to convict somebody of such a stupid crime. And that's really good information for the government to get.
Right. That that some of the laws on the books are perceived to be so ridiculous that it's not worth enforcing them. And that at least in some cases, you won't even be able to impanel a jury of people who would agree to convict somebody who had committed that crime. Our current system largely insulates prosecutors and legislators from that kind of feedback. And I think pretty clearly that helps to create a situation where we have far more criminal laws on the books than really make sense. And certainly more laws on the books than would be there if each and every one of us was subject to being called down to the courthouse against our will and told you're going to participate.
in this trial because this person has, you know, sold a bag of weed or something like that. There's no way in the world that I'm going to do that quietly. Now, I will absolutely go down to the courthouse and participate in a trial involving a murder or an armed robbery or something like that. But you're going to hear about it from me if you expect me to devote, you know, let's say five days of my time to deciding whether somebody sold drugs. No way. And that might be for average people. That might be the only interaction those people ever have with the criminal justice system in a serious way.
No, that's absolutely right. I mean, the founders, to go back to the founders for a moment, they firmly believe, and I think correctly, that participating in the administration of criminal justice by serving on criminal juries was an indispensable civic activity. It was a way of ensuring that people not only had a stake in the process, but also that they had a better insight into how the process worked, that they were sort of, you know, not only participating, but in some sense, they were actors within the system. And I think that to a high degree of certainty, our criminal justice system could only have become as pathological as it has, and it is deeply pathological, by subverting. the founders' very deliberate intention of putting citizen participation at the very heart of the administration of criminal justice, if citizens still played a meaningful role in the adjudication of criminal charges like they're supposed to under the Constitution, I think it's quite clear that our system would look radically different than it does today. We sort of skipped over this, but when we talk about the founders and criminal justice before the revolution, what did criminal justice look like for average people, for even the very wealthy? I can remember William Penn famously being put on trial.
Yeah, so the footprint of criminal justice was much smaller at the time of the founding and before that. Certainly, it was capable of and routinely did produce injustices. It's easy, for example, to remember what happened in the Salem Witch Trials and to be horrified by it, as we should be. But the overall footprint of the criminal justice system was much smaller than it is today. You didn't have a professional prosecutor class. There were not professional police. So criminal justice was something that was done on more of an ad hoc basis. Perhaps the most important thing to remember about the founding era criminal justice system was how irate the colonists were by the British basically...
changing the law so that more and more crimes had to be tried in an admiralty court than in sort of common law courts. Because what that meant was that you no longer had a right to a jury. They were deliberately ensuring that colonists who had been accused of various crimes would not be, you know, those charges would not be adjudicated by a jury of fellow colonists. The British wanted that to be done in British admiralty courts. And this was actually one of the grievances that's listed.
In the Declaration of Independence, there's a body of academic literature that indicates this was actually one of the major grievances that the colonists had. So it was a really big deal that the British themselves tried to essentially minimize the scope and availability of jury trials just exactly the same way that the government has succeeded in doing today. So at the federal and state level, obviously, you know, as we know that most prisoners are prisoners at the state level, what can lawmakers, what can, I assume the judiciary can't do all that much, but what can lawmakers do to say, we would like to move the fraction of convictions that are achieved by prosecutors via plea bargaining or not a jury trial from its very high level to a slightly lower level. Yeah, I strongly emphasize we should not let anybody off the hook here. There's plenty of culpability to go around. I think that a system that is premised on the notion that nearly everybody can be induced and will ultimately be induced to condemn themselves, to waive their right to a jury trial and condemn themselves is grotesque. And this business of persuading people to condemn themselves has a swallowed history and I really think cannot be done consistent.
It can't be done on a sort of a mass level the way we do it consistent with due process. So what could legislators do? I think the first and most important thing they could do, and this would be very easy, would be to create what's called a trial lottery. And what we would do is we would randomly choose some percentage of cases that have been resolved through a plea agreement. But before the guilty plea is entered, we would send them to trial. And what we'd be looking for is to see how often is the government able to obtain a conviction before a jury. And if they get the conviction, then the defendant gets whatever the plea deal was.
Of course, if there's an acquittal, then the defendant walks. But what we'd be able to do is we'd be able to get much more precise numbers on how often the government is able to induce a guilty plea in a case where it would not have been able to obtain a conviction in front of a jury. And I've had friends of mine who are experienced criminal defense attorneys estimate that that number would be anywhere from 20 to 50%. I think just those numbers alone, if they actually ended up manifesting that way. would thoroughly undermine both the rationale and the faith that people have in the legitimacy of plea bargaining as an institution. On the judicial side, it would simply be a matter of recognizing that coercion, even though it is difficult both to define and to identify in terms of when it's actually happening, is plainly rampant in the system. And we can know that from a variety of ways. One of the most important ways that we know it is that approximately 15% of all known exonerations to date involved false guilty pleas. Literally, the government coercing innocent people into pleading guilty to crimes they didn't commit. That data is indisputable. No one seriously disputes it. We don't know what percentage of guilty pleas are false, but we know that it's...
more than a diminuous amount. And if judges were more vigilant about ensuring that any particular guilty plea was not coerced, then that would have a significant impact. And then the final thing that judges could do, I mean, there's plenty, but the last one that comes to mind is judges could advise jurors that they have the ability to acquit against the evidence that's sometimes called jury nullification. We prefer the more precise term, conscientious acquittal. And they could advise jurors that they have the power to ask any question they want to know the answer to, including, for example, whether the defendant is facing a trial penalty, which is simply the term that describes the...
often vast differential between the punishment a defendant will receive if they agree to plead guilty versus the much more draconian penalty that the defendant will receive if they exercise their right to trial and lose. And if the jury considers that information to be relevant and takes it into account in rendering their verdict, there's nothing wrong with that. But right now, judges go to great lengths to ensure jurors know none of this, but they could turn on a dime and ensure that jurors know all of it. Clark Neely is Senior Vice President for Legal Affairs at the Cato Institute. If you have a topic that you want tackled in our Cato Audio exclusive segment, please send it to catoaudio at cato.org and we'll take a look. Thank you.
A programming note, this is, well, it's a bittersweet moment. This is the very last edition of Kato Audio that will be mailed in physical form to our subscribers. We're still producing it, of course, but from here on out, you'll need to grab your Kato Audio editions the same way you get the Kato Daily Podcast, from a podcasting app or from our website. That will do it for this edition of Kato Audio. I'm Caleb Brown. Talk to you again next month.