Cato's Neily On Fixing The 'Criminal Justice Woodchipper'

By Emma Cueto | June 16, 2019, 8:02 PM EDT

Clark Neily once wrote on Twitter that after 20 years as a constitutional litigator, getting a look at the way the criminal justice system operated in practice was like a surgeon stepping into a hospital where no one washes their hands or cleans the instruments.

The Cato Institute's Clark Neily

Neily started his career as a constitutional litigator with the libertarian public interest firm Institute for Justice but eventually found himself drawn into the criminal justice reform movement after he started researching the actual conditions in the system. And so in 2017, he switched gears to become the vice president for criminal justice at the libertarian think tank the Cato Institute.

At Cato, Neily said, he tries to direct the organization's efforts towards issues that don't get enough attention or that seem well-suited for libertarian solutions, including overcriminalization and the criminalization of arbitrary offenses, police practices that negatively impact communities, coercive plea bargaining, and the lack of accountability for police and prosecutors.

He recently spoke with Law360 about what it was like to make the transition from constitutional law, what he's focused on right now, and why he thinks criminal justice reform is a bipartisan issue.

Why did you decide to switch gears and focus on criminal justice work?

Without being maudlin about it, I felt called to do this work. It is important in my view to have a well-functioning criminal justice system. And I don't think we have one.

I think it's fair to say that we have two criminal justice systems. There's the one that is described and prescribed in the text of the Constitution and mythologized to schoolchildren. It's the one that we're told to believe exists. But it doesn't exist.

Instead, we have the second criminal justice system, which is the one that we actually operate in real life to achieve the world's highest rate of incarceration and to essentially operate what I think is fairly described as a criminal justice woodchipper, where we throw citizens in.

How did you first get into criminal justice reform work at the Institute for Justice?

Institute for Justice got into civil asset forfeiture as an aspect of our property rights litigation.

[The institute] is pretty well known for the Kelo eminent domain case that went up to the Supreme Court in 2005, where the Institute for Justice represented a group of homeowners whose property was being taken for economic development using eminent domain. But in the wake of that Kelo case we continued working on eminent domain but wanted to broaden the property rights portfolio. So we took a really hard look at forfeiture.

I would say just personally, working on my first forfeiture case I was really shocked — I mean just shocked — at the lack of meaningful protections for property owners and the perverse incentives that law enforcement has, because typically the seizing agency gets to keep to proceeds of the forfeiture.

But what began to keep me up at night is I began to ask myself, "If law enforcement is this cavalier and sloppy when it comes to taking people's property, are they a lot more careful when it comes to locking people up in cages?" And the more I looked into the system, the more I came to the conclusion that the answer was no.

What is one issue that you feel is pressing that you're working on right now?

Qualified immunity. It's a judge-made doctrine that protects government officials from lawsuits, contrary to the actual text of federal civil rights law. We've got a strategic amicus campaign going where, when we identify a strong-looking qualified immunity case, either at the circuit court or even better on its way to the Supreme Court, we just unleash a torrent of amicus briefs that are very strategically coordinated.

How's it going?

It's obviously a really tall order, to get the court to reverse and overturn not just existing precedent, but a significant legal doctrine that's really become a cornerstone of modern civil rights law. It's a very serious lift. But the signals that we're getting are pretty favorable.

There have been several Supreme Court justices, including last spring [Ruth Bader] Ginsburg and [Sonia] Sotomayor, who suggested the court should take a fresh look. Justice [Clarence] Thomas said something recently. A number of lower court justices have expressed grave concern.

We've also been contacted by some members of Congress who've expressed interest in legislatively repealing qualified immunity — which they do have the authority to do because it's not a constitutional doctrine.

What are some of the strategies you use at Cato to tackle issues?

We don't litigate frontline, but we definitely do move strategically on the amicus front. Cato files its own amicus briefs, but it also coordinates the filing of other amicus briefs by other parties.

There's a brief that's now been filed in two qualified immunity cases that we call the cross-ideological brief. And essentially it's a brief with signatories that are public interest organizations that are drawn from absolutely the entire ideological spectrum.

[One of the most recent cases in which Cato filed briefs opposing qualified immunity concerned a minor who was strip-searched as part of an investigation into possible abuse against her. The Supreme Court declined to take the case in May.]

Why do you think that you're able to marshal so much support from people across the political spectrum? What is it about this issue that lends itself to that kind of cooperation?

The need to have a well-functioning criminal justice system is widely accepted.

Whether you're on the left or the right or the center, I think nobody feels it's a good idea to have complete anarchy and have the government standing by and doing nothing while you have people going around hurting people and taking their stuff without consequence. And we all have a common interest in ensuring that the criminal justice system is a good one.

And this might be where I get a bit provocative, but it's doing such a horrible job — the system is so fundamentally and pathologically broken — that you don't have to be a rocket scientist to see that.

All Access is a series of discussions with leaders in the access to justice field. Questions and answers have been edited for length and clarity.

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