Summary

  • SPEAKER:    Professor Larry Cunningham, Associate Dean, St. John’s University School of Law: https://www.stjohns.edu/law/faculty/larry-cunningham

  • BACKGROUND:  This briefing provides an overview of the U.S. criminal justice system. Topics include: the difference between state and federal justice systems; the role of courts, police, prosecutors, and defense attorneys; the U.S. system versus the civil law system; and U.S. constitutional rights and rules.

    Dean Cunningham has served in a variety of roles in the St. John’s Law School administration: Vice Dean (2016-18), Associate Academic Dean (2013-16), Associate Dean for Student Services (2011-13), and Assistant Dean for Students (2010-11). In his current role as Associate Dean for Assessment and Institutional Effectiveness, Dean Cunningham oversees the Law School’s processes related to the assessment of student learning outcomes, strategic planning, and the use of data to inform decision making.  Dean Cunningham is a member of the University’s Strategic Priorities Review Team.

NEW YORK FOREIGN PRESS CENTER, 799 UNITED NATIONS PLAZA, 10TH FLOOR

MODERATOR:  Hello.  I’m Katie Reedy, I’m today’s moderator.  Welcome to the Foreign Press Center’s videoconference briefing on understanding the U.S. criminal justice system.  Please keep your microphone muted until you are called on to ask a question.  We’d also like to ask that if you’re able to change your name to reflect your full name and outlet, that’d be very helpful to us for the question and answer portion.  If you have technical problems during the briefing, you can use the chat feature, and we will try to assist you.  As a reminder, today’s ground rules: this briefing is on the record.  

I’d like to introduce our briefer, Professor Larry Cunningham.  Professor Cunningham is the Associate Dean for Assessment and Institutional Effectiveness, Professor of Legal Writing, and the Director of Center of – Center for Trial and Appellate Advocacy at St. John’s University School of Law.  Dean Cunningham has served in a variety of roles in the law school administration.  Dean Cunningham currently teaches evidence, appellate advocacy, and the seminar component of the prosecution clinic.  He has also taught legal writing, criminal procedure, adjudication, criminal law, and New York criminal practice.

This press briefing is an opportunity to better understand the U.S. criminal justice system and to ask any questions you may have on this topic.  As a reminder, our briefer’s opinions are his own and do not represent those of the United States Government.  Professor Cunningham will provide opening remarks, and then we will open our meeting to questions and answers.  

Professor Cunningham, please go ahead.

MR CUNNINGHAM:  Great, thank you.  Thank you, Katie, and thank you to the State Department for having me.  I’m going to share my screen.  Katie, can you just give me a thumbs-up if this is coming through okay?

MODERATOR:  It looks great.  Thank you.

MR CUNNINGHAM:  Thank you.  So good afternoon, everyone.  As Katie said, I am an associate dean and professor at St. John’s Law School in New York, at least for the next few weeks.  Beginning June 30th, though, I will be the next dean of Charleston School of Law in South Carolina.  I’ve provided my email address at the bottom, and I will also make this PowerPoint available to you, and I am always happy to speak with reporters, particularly about issues relating to the criminal justice system.

So to begin with, I actually want to clarify that what we’re actually talking about is the criminal justice systems – plural – in the United States.  The United States does not have one system.  Instead, we have a system for all 50 states, plus the District of Columbia, plus each of the territories, and as well there is a separate criminal justice system for the federal government.  So keep in mind that the United States operates on a federalism basis, meaning we have the national federal government, and then we have each individual state having its own governments.  And the federal government is a government of limited powers, which I will talk about in a moment.

And so because of that, it’s difficult to give a definitive description of sort of one criminal justice system, because, in fact, there is a lot of variation among the states and between the states and the federal government.

So let’s begin by talking about the difference between the federal system and the state system.  The state criminal justice systems are where you see sort of your more common types of crimes being prosecuted.  So that’s things like murder, sexual assault, robbery, burglary, drug possession, simple drug distribution or drug deals, larceny – which is another name for theft – simple assaults.  These sort of basic crimes against person or crimes against property, they’re typically handled at the state level.

The federal courts only have jurisdiction over limited matters.  There has to be a constitutional basis for the federal government to exercise criminal authority.  And so typically, a basis for federal jurisdiction is if there is something that occurs between states.  We call that interstate.  So for example, interstate kidnapping, or a fraud that’s perpetrated through the mail system or through – electronically through the wire system, internet crimes – these are things that can be prosecuted at the federal level.  It includes things like large-scale drug conspiracies or bribery of a public official or terrorism.  

But even though the federal system often will get the sort of big, big cases, from a numbers perspective, most cases are prosecuted at the state level.  And as I said, there’s going to be a lot of variation among the states.  For example, defining what is or is not a crime.  Something might be legal in one state, illegal in another state.  Sentences will vary very significantly.  So in one state, a crime might be punished very severely; in another state, punished very lightly, if at all.  

Different states will have different focus on rehabilitation versus punishment.  Some of the states in sort of more of the southern region of the United States tend to be more tough on crime, and so you’ll see longer prison sentences, more severe punishment.  The availability of non-prison sentences – so probation or rehabilitation or treatment programs – really going to vary state by state.  

Prison conditions themselves will vary.  The death penalty.  The death penalty is only available in the United States for an intentional murder, and even then, it has to be authorized by state law.  And so there is actually very few states that impose the death penalty.  And again, they tend to be states in more of the southern region of the United States.

The ability of the victim to participate in the process officially is also a basis of variation, as will procedure.  And in terms of procedure, we can typically think about the criminal justice system in three parts – I call them the three Cs: cops, courts, and corrections; meaning the police, the judicial system, and then the corrections or prison system.  

So the job of the police in the United States is to investigate crime and to arrest a suspect.  It’s the role of the courts to adjudicate and decide if a suspect is guilty, and if so, to decide on the punishment.  This is very different from other – many, many other countries’ systems, where you’ll have the court or a judge or a magistrate actually doing the investigation.  In the United States, we separate that role out.  That role is done specifically by the police, and the role of the court is just to evaluate the evidence and decide whether a suspect is guilty or not.  

And another key difference in the United States versus other jurisdictions is the role of the jury.  In the United States, we follow the common law system, and so in – for most crimes, the defendant has a right to be tried by the jury, and so it’s the jury that decides whether the defendant is guilty or not.  All the judge does is sort of sits back and rules on what evidence is or is not admissible, but it’s the jury who evaluates whether or not somebody is guilty or not.  

The case then goes back to the judge, and the judge is the one who determines punishment, not the jury.  If the defendant is found guilty and a sentence is imposed, it’s then the corrections department in a state that would take over in terms of the punishment.  

So this diagram is a very famous one.  If you just Google “U.S. Criminal Justice System” and search for images, it’s one of the top images.  This chart was prepared by the Justice Department, the federal Justice Department, to educate the public on really the procedure.  I’m not going to go into all of this; I’m going to give you a very simplified overview of it.  But this gives you an idea of sort of the very complex nature of the criminal justice systems in the United States.  

But it really operates as a flow chart.  You start off with a crime being committed and you end up with corrections at the end, and then everything in between is being handled by the police and the courts.

So in general, the way a case works in the United States is there is first an investigation done by the police.  They make an arrest of a suspect.  That suspect then has to typically be brought before a judge, typically within 24 to 48 hours, depending upon the state.  Again, that’s a little different from other jurisdictions where the police can hold a suspect in custody for sometimes weeks at a time.  In the United States, the defendant has a right to what’s called a bail hearing, and a bail hearing, the sole purpose of it, is for the judge to make an independent determination as to where a defendant should live pending the outcome of a case.  Should the defendant be allowed to return home, or will the defendant be confined to jail pending the outcome of the case?  And that’s all the decision that’s being made at the bail hearing.  It’s not determining whether the defendant is guilty or not.

Next, there is a wide variety of pretrial matters, some of which can take years to get through; something called discovery, where the prosecution provides evidence to the defense, and in some cases the defense has a reciprocal obligation to provide evidence to the prosecution.  That then leads to plea negotiations and also motions, where typically the defense will be trying to get the judge to exclude evidence from the trial such that the jury never hears particular evidence, perhaps because the evidence was unconstitutionally obtained.  

Next is the trial, which, again, is typically before a jury.  And so the prosecution presents its evidence, typically through live witnesses rather than documents or depositions or sworn statements.  In the United States, the trials are – well, we have a preference, a very strong preference, for witnesses to testify live in person before the jurors so the jury can evaluate whether the witnesses are telling the truth or not.

If the defendant is found not guilty, he goes home, and the case is over.  If, however, the defendant is found guilty, the case then proceeds to a sentencing hearing, where the judge imposes punishment, and then the defendant has a right to appeal in nearly all circumstances.

So that’s the – sort of the process on paper.  In real life, about 95 percent of cases are resolved by plea bargaining or plea agreements.  Basically, this is a settlement of the case where the prosecution and the defense come together and they agree as to a resolution of the case.  So a defendant might be charged with murder, then the agreement might be that the defendant will be found guilty of manslaughter and sentenced to, let’s say, 10 years in prison or 15 years in prison – far shy of the maximum that could be imposed.

Because there are so many cases in the criminal justice system in the United States, it’s just impossible for every defendant to get a trial, and both sides know this.  And so plea agreements are a way to resolve cases and move cases through the system much more efficiently.  But a defendant cannot be forced to take a plea.  A defendant has an absolute constitutional right to go to trial.  

So let’s (inaudible) about the people (inaudible).  First are the police, and there are basically two types of police.  There are police officers who wear a uniform.  We call these patrol officers, so they’re riding around in their police cars and they’re responding to crime as it happens.  Then there are detectives.  Detectives typically wear a suit and they investigate crimes that have happened.  They’ll gather evidence, talk to witnesses, and they tend to investigate sort of more serious cases where evidence has to be collected and a case built. 

In terms of the lawyers in the case, there are two different types of lawyers.  There is the prosecutor and the defense attorney.  The defense attorney represents the accused in the case.  A defendant has a constitutional right to a lawyer; even if he cannot afford one, the state must provide one to him free of charge.  That’s a constitutional right.  The prosecutor in the United States is a government official, typically elected by the voters in let’s say a county or a state, who then appoints assistants.  So that’s why you will see them called assistant district attorneys or assistant state’s attorneys.  And their job is to represent the government, represent the people as a whole.  So the prosecutor doesn’t represent a victim per se; the prosecutor represents sort of the general public interest.  And because of that, the prosecution is not bound to follow the wishes of a victim, although they usually do take them into account.

I mentioned the judge.  The judge actually has, compared to other countries, very little authority or power.  Really what the judge is doing is deciding what evidence is or is not admissible and then imposing a sentence later on.  There will also be probation officers.  They help advise the court on a punishment and also will supervise offenders who are not given a prison sentence.  Corrections officers are involved in running the jails and prisons, and then a parole officer supervises defendants who are released early from prison.  

I mentioned before some constitutional principles.  A lot of what underlies the American criminal justice system is rooted in our Constitution, which embodies certain protections for the accused; for example, the presumption of innocence.  So a defendant does not have to provide evidence to exonerate himself.  The burden is on the prosecution to prove beyond a reasonable doubt that the defendant is guilty.  If they fail to do that, the defendant walks free, even if the defendant presents absolutely no evidence.

Because of that, also the defendant has a right not to testify.  The defendant has a right not to incriminate himself.  He can testify if he wants to, but he’s not obligated to.  He has a right to a lawyer to assist him in presenting his own defense.  Interestingly, he also has a right to represent himself as well. 

He has a right to a jury.  That can be waived, so he can agree to have the case decided by a judge, but most defendants opt for a jury trial.

The defendant also has a right to confront – meaning to cross-examine – the witnesses against him.  Again, that’s that idea that defendants are tried based on live testimony from live witnesses rather than documents or written statements.

There’s also a right to a public trial.  That’s something that’s very important for journalists.  Even if the prosecution and the defense want to keep a trial private and exclude the press, there’s a very, very strong presumption in favor of a public trial.

And then finally there is an obligation of the prosecution to disclose evidence to the defense that may be helpful to the defense.  So, for example, if there is a witness who comes forward and says that the defendant didn’t do the crime, the prosecution has to notify the defendant of that fact.  That’s rooted in a case called Brady – that’s why it’s called Brady material – and it’s rooted in a concept of due process or fairness.

So finally, I just want to end by talking about sort of four common mistakes that I see in news reporting, even by very experienced journalists.  So the first is sometimes I’ll see reporting that indicates that an arrest or an indictment, which is a formal charge, amounts to the defendant being guilty, and that’s not correct.  In our system the defendant has a presumption of innocence and it’s the prosecution’s burden to prove otherwise, and so an arrest or an indictment is merely an accusation.  And it’s a very low threshold to arrest somebody lawfully in the United States or to issue an indictment.  Something called probable cause – very, very, very low threshold.  And so that is merely an accusation.  It does not mean the defendant is guilty.

Likewise, that bail hearing – that initial appearance that takes place 24 to 48 hours after arrest – the judge is not determining whether a defendant is guilty or innocent.  The judge is just determining whether the defendant should be released back into the community or should be jailed pending trial, and typically the factor that’s most important there is whether or not the defendant will return to court.  And so if a defendant doesn’t pose what we call a flight risk, a judge will typically allow the defendant to be released.  That’s not the judge speaking to the person being guilty or innocent.  That’s not the purpose of that initial bail hearing.  And so you’ll sometimes see reporting – judge allows a suspect to go free.  Well, not really.  The judge is just deciding that pending the outcome of the case, the defendant will be okay – to allow him to remain in the community.

Next, failure to speak equaling guilt – the defendant didn’t speak up in court or the defendant make a statement to the police.  But a defendant doesn’t have an obligation to do so.  The defendant has a right to remain silent.  Likewise, the defendant doesn’t have an obligation to present any case.  And so if the defendant in a trial doesn’t produce any evidence, that doesn’t – that’s not an admission of guilt.  That just means that they’re not under an obligation to present evidence of innocence.  It’s the prosecution’s burden at all time to prove that the defendant is guilty.

And then the last common mistake is related to the insanity defense.  So this is when somebody has a mental illness that causes them not to know right from wrong, and so for example they commit a murder under some delusion or psychosis.  And a common misperception is that a defendant who receives the insanity defense just goes home, and that’s not the case.  It’s true that in the United States that they’re not punished, but typically what happens in an insanity defense case if it’s successful is a defendant is confined to a mental hospital – not a prison, but a mental hospital – until they are rehabilitated and well enough to go home.  Sometimes that actually takes longer than the prison sentence that they could’ve gotten, but an insanity defense is not a situation where a defendant just goes home and is not treated.  It’s just the focus goes from punishment to rehabilitation.

So that concludes my very, very high-level overview, and again, I just want to emphasize that there is tremendous variation among the states and between the states and the federal government, and so some of the – even the terms that I used may vary significantly from state to state.  But I hope this sort of high-level overview is helpful to you.  So with that, Katie, I’ll turn it back over to you to manage the queue of questions.

MODERATOR:  All right.  Thank you, Professor.  Let’s first hear from those participating via the Zoom app and then I will turn to those who have called in.  For those of you joining via Zoom, please click on the Raise Hand button on the bottom of the participant list or indicate that you have a question via the chat feature at the bottom of your screen and I will call on you.  Again, as a courtesy to our briefer, please do provide your full name and outlet.  Thank you.

All right, I saw a hand – we had a hand raised from Kihye Hong from Pressian in South Korea.  Do you have a question?

QUESTION:  Yes.

MODERATOR:  Please, go ahead.

QUESTION:  Yes, I have a question.  You said 95 percent of the (inaudible) are determined by plea bargaining.  I think it is efficient, but there may be a problem of equality.  Even if it’s the same crime, the sentence can vary depending on the negotiation; is it right?

MR CUNNINGHAM:  That’s a great question, and indeed, there can be variation based on who the prosecutor is and who the defense lawyer is.  And for that reason there are various guidelines in place.  So first of all, when the legislature defines a crime, they will typically give a range between which a punishment can be, let’s say between five and 10 years in prison.  And so that limits the range of bargaining authority that the parties will have.  

The other sort of check on that is that is that, particularly in larger, more populated areas, the prosecutor’s offices will have written guidelines as to the range of punishments that they will typically agree to in order to promote equality.  And that’s also something that the judge will look out for in deciding whether the plea agreement will be acceptable or not.  

But that is – you’re absolutely right.  That is a risk, and so the people who are involved try to minimize that as much as possible.

QUESTION:  Okay.  Thank you. 

MODERATOR:  Thank you.  We have another question from Hiroyuki from Fuji TV.

QUESTION:  Yes.  

MODERATOR:  Yes.  Please, go ahead.

QUESTION:  (Off-mike.)

MODERATOR:  Yes, we —

QUESTION:  Can you hear me?

MODERATOR:  Yes, we can.

QUESTION:  Oh, okay.  Thank you for the opportunity.  The – Professor, as you know – of course you know that totally Japanese system and the American system is different, and then I always have some confusion with the wording of the charge and the indictment.  How does the U.S. court use the indictment and the charge?  Is there any difference in the wording or the system itself?

MR CUNNINGHAM:  Great question.  So typically they mean the same thing.  A charge or an indictment means the accusation, the crime that the defendant is accused of or the suspect is accused of.  The difference is an indictment technically comes from a grand jury, so not just a jury.  A jury is what decides the case at trial.  A grand jury is only used in some states.  And what it is:  It’s a secret body.  In New York, it’s composed of 23 people who sit for a month at a time and they decide whether the prosecution has sufficient evidence to even charge the defendant with a crime.

So what they do is they issue an indictment, a written accusation.  That’s what an indictment is.  But the only side that – in most states that presents evidence to a grand jury is the prosecution and it’s typically done in – or nearly always done in secret.  And so as journalists, you would not be able to observe a grand jury proceeding, but you would be able to read an indictment that is handed down or issued by the grand jury.

The grand jury process itself is supposed to be a check or a balance against prosecutors overusing their charging authority.  And so it’s supposed to be sort of ordinary citizens deciding whether there’s sufficient proof or not to even warrant a trial.  In reality, because it’s only the prosecution that presents evidence before the grand jury, the grand jury nearly always follows the wishes of the prosecutor.  So if the prosecutor wants to have an indictment issued, that’s typically what the grand jury does. 

And so because of that, many states have moved away from grand juries and instead use something called a preliminary hearing to sort of screen out cases early on where there might – where it’s a very, very weak case and the case shouldn’t even be brought at all.  And so in some cases, in some states, you might not even see the word “indictment” used.  It might be called a charge or an information instead, but it basically means the same thing.  No matter what the document is called, it will give you the name of the defendant, the case number, and it’ll list out the crimes that the defendant is accused of and then sometimes a brief description of the facts that led to the charge.

QUESTION:  Thank you.  So this means that the – we have to see which court is doing it, or the – or which state is doing or (inaudible)?

MR CUNNINGHAM:  Exactly right.  You have to go based on the state.  And so you’ll have to – you have to figure out is this a state that uses a grand jury or not, and that’s very easy to ascertain.  Even something like Wikipedia will tell you that fairly quickly.

QUESTION:  Thank you so much.

MR CUNNINGHAM:  You’re welcome.

MODERATOR:  All right.  Thank you.  Our next question will come from Michael Persson.  We will unmute you.  Thank you. 

QUESTION:  Thank you.  Hi, Mr. Cunningham.  Thank you very much for doing this.  

MR CUNNINGHAM:  My pleasure.

QUESTION:  Two questions.  One of them:  There’s a lot of talk about bail reform these days and – because of the effect that it’s – it may be unfair to people of lesser means.  Do you agree that there’s some unfairness in that system?  Also because the system may be abused by just letting people sit out their maximum time before the trial.

And second question:  Another issue that is talked a lot about is the politicization of the judiciary.  And is there an academic means that you could measure whether the judges in this country are getting or are becoming more political?  

So those are my two questions.  Thank you. 

MR CUNNINGHAM:  Yeah, both great questions.  I’m going to take the second one first.  There is – there’s a great deal of study that has taken place about judges and how judges are selected in the United States.  There are some jurisdictions where the process is supposed to be very non-political, where it’s really based on merit, it’s based on your knowledge of the law, your temperament, whether you can be fair, the quality of your writing, and so forth.

In other jurisdictions, judges are directly elected by the people.  And in some of those states, actually a lot of those states, judges are able to campaign on the merits.  And so what that means is they can campaign and say, “I’m going to be tough on crime.  I’m going to be very tough on criminals.  I’m going to impose lengthy sentences.”  That’s a message that resonates with a lot of voters.

On the other hand, we’ve seen in recent years campaigns – district attorneys, for instance, saying, “We need to be more fair.  We need to focus more on rehabilitation and solving root causes of crime.”  And so there’s been a lot of academic discussion around what system is better, and it’s sort of a very, very complicated issue because you’re basically trying to predict and figure out which type of judges are going to issue the most fair sentence, but first you have to agree on what is a fair sentence, and there’s a lot of disagreement there.

With respect to bail reform, so just to back up and to elaborate a little bit on what the issue is – so I mentioned the bail hearing.  So that, again, takes place 24 to 48 hours after arrest.  And the purpose is to decide does the defendant remain in jail or does he go home.  Well, there’s a very common middle ground which is that the judge will set a bond, meaning an amount of money that the defendant must post as collateral in order to be released.  

So for example, it might be $5,000, and so that means the defendant’s family has to come to court with – or to the jail with $5,000 or pledge real estate or securities or something else and then the defendant is released, the theory being that if the defendant or his family is going to lose this money if he doesn’t show up to court, he’ll make sure to show up to court, because if he shows up to court, the family gets that money back.  

Now, in reality, most people don’t have that kind of money lying around, and so there’s a whole industry of what’s called bail bondsmen that will post a bond for a defendant in exchange for a fee.  And that makes it somewhat more affordable, but some families can’t even afford that, let’s say, 10 percent.  They may not be able to afford $500 to put down for a bail bondsman.  And so as a result, the defendant has to sit in jail.  He’s not released on bail.

And so here’s the issue, is that the – that even though the purpose is not supposed to be punishment, it really does end up being a punishment for people because they are housed in the same facility that convicted criminals are: a jail.  And they lose their freedom.  They can’t work, they – and they can’t see their families and so forth.  And so even though there might be a good reason for them not to just be released into their – back to their families because maybe they have a history of not showing up to court when they’re supposed to or committing lengthy crimes when they – when they’re released, that it still operates on a – as a punishment based on the ability to afford the bond that’s set.  So it really becomes an issue of disparate treatment.

So somebody who is very, very wealthy may have no problem posting a $5,000 bond or maybe even a $5 million bond, but somebody who is poor isn’t.  And so that’s the risk that you run.  And so because of this, a lot of states are beginning to rethink cash bail, meaning instead of having three options – go home, a bond, or go to jail – they’re introducing a different middle-ground option, which is some sort of pre-trial supervision or release, where something called a pre-trial services officer will supervise a defendant in the community and make sure that he’s going to work or going to school and he’s showing up to court.  And a lot of jurisdictions are now moving in that direction because of that, and so that’s something that I think you’re going to see more and more of in the coming year or two. 

QUESTION:  All right, thank you very much.

MR CUNNINGHAM:  You’re welcome.

MODERATOR:  Okay, our next question will come from Alex Aliyev.  We will unmute you now.  

QUESTION:  Thank you, Kathleen.  Can you hear me? 

MODERATOR:  Yes. 

QUESTION:  All right.  Thank you, Larry, for a very useful, very – obviously a compelling presentation.  My name’s Alex Aliyev Raufoglu.  I represent Azerbaijan’s independent news agency Turan.  I have a question, but before that, I want to follow up with Michael’s question.  

With people spending months and sometimes years in jail before a trial, does the United States justice system uphold the promise of presumed innocence?  

And my second question:  I mentioned, I represent independent news agency.  I cover corruption, human rights, and kleptocracy.  So there’s a conventional wisdom in this town that the U.S justice system is vulnerable when it comes to fighting global kleptocracy, which actually makes the country the world’s leading enabler of kleptocracy.  

As you know, in our globalized world, kleptocracy and corruption are no longer bound by geography.  In fact, much of the stolen wealth from Azerbaijan, from Russia, from other countries – so they find a way through the international shadow banking system, and it ends up in the United States, and with consequences for American economy, democracy, national security.  So the question is:  How can the U.S. justice system take on global kleptocracy and corruption?  Thank you. 

MR CUNNINGHAM:  Both great questions.  So I’ll give you my opinion.  Obviously, I just speak for myself on this.  

As for the first question, you raise, I think, a very legitimate criticism of the American criminal justice system, that when you have defendants who are unable to afford their bail, and so they have to sit in jail for months or years, that that becomes – that runs counter to the presumption of innocence, particularly if it’s a very lengthy stay in prison.  

The counter-response to that is that there are competing goals at stake here.  In the early 1980s, there was a series of measures at the federal level to try to reform bail sort of going in the opposite direction.  What Congress saw was that there were situations where a defendant would be released on bail only to go and commit a crime the very next day, and we call that the “revolving door” of the criminal justice system.  

At the same time that we want to prevent that, we also want to make sure that defendants show up to court, because if somebody is arrested but then they don’t show up to court, they flee the jurisdiction, the state isn’t able to have that person punished as they deserve to be.  And so there – it’s a very – it’s a balancing that states try to operate under.  

So I was a prosecutor in two different jurisdictions, one the state of Virginia and the other here in New York.  And I can tell you that the jurisdictions are very, very different in terms of how quickly they proceed.  In Virginia, there was a courthouse right down the road from where I worked that had etched on the front stoop of the courthouse: “Justice Delayed is Justice Denied.”  Justice delayed is justice denied, the idea that delays can cause things like you’re talking about, where somebody is kept in jail without a fair adjudication of their guilt.  And so one of the things that impressed me about the Virginia criminal justice system is that cases didn’t languish for months or years.  They were – they proceeded very, very expeditiously while also being fair.  And that, to me, is an important aspect of criminal justice reform, not just fixing the bail process, but also fixing something we call “speedy trial,” which is a constitutional right a defendant has to have their case decided in a speedy fashion.  And that, I think, can help to address some of the concerns.  

I can’t speak too much to the – to your second question, because I don’t have as direct of experience.  But one of the functions of the federal Justice Department is to focus on both interstate crimes but also international crimes as well that touch on the United States.  And different administrations of the Justice Department have put different emphases.  So for example, after 9/11, a lot of the focus of the federal government shifted from drug prosecutions and the types of cases that you’re talking about to terrorism.  Then we see sort of a shifting of focus as different administrations come in, but certainly in terms of large-scale conspiracies and frauds, that’s where the federal justice system should come into play.  I can’t speak to any specifics on it because just that was never my area.  I was a state prosecutor.  I prosecuted homicides and burglaries and (inaudible). 

QUESTION:  Sure, that is fine.  

MR CUNNINGHAM:  Thank you.

MODERATOR:  All right.  So next I’d like to give the opportunity to those who called in via phone to ask any questions.  To unmute yourself, please press * 6 and that will unmute you, and you can speak.  

QUESTION:  (No response.)

MODERATOR:  Okay.  Do we have any other questions from the chat?  

QUESTION:  (No response.) 

MODERATOR:  All right.  I actually would like to ask a question that might be on people’s minds.  Given the current COVID-19 situation that is affecting us in so many ways, what is your take on how the criminal justice system has been affected, and perhaps how it may change or react as a result?

MR CUNNINGHAM:  Great question.  It has affected the criminal justice system immensely.  So I talked about how 95 to 96 percent of cases are resolved by plea bargain.  That’s driven by just the sheer volume of criminal cases.  We have in the United States one of the highest, if not the highest, incarceration rates of nations, and so we just have many, many, many criminal cases that come through the system.  That whole system, that pipeline, came to a screeching halt around the beginning of April, and so the court system and the criminal justice systems have basically been shut down in the United States for the last month and a half or so.  And I think they’re going to have to reopen them very, very slowly, because there’s a lot of person-to-person contact that occurs or courtrooms and prisons and jails.  

And so the issue has become, well, what happens to the people who are in jail because they couldn’t make their bond and they haven’t had their case decided, and they’re just sitting there waiting for their case to be heard, and they’re sitting in a jail where there’s a high risk of transmission of the virus?  And so in a lot of jurisdictions we’ve seen compassionate release, we’ve seen judges cutting short defendants’ prison sentences or allowing them out on a lower bond pending the outcome of their case just to get them out of jails and prisons, which are not exactly the most hygienic of locations to be in, and particularly in terms of older, more vulnerable prisoners, to sort of get them out of that situation.  

At the same time, we have to remember that defendants have a right to a speedy trial, and so we can’t keep the criminal justice system on lockdown forever.  It has to open up; defendants have a right to a trial.  And so I think it’s going to be very, very complicated in terms of reopening, doing so effectively but also safely.  

The good news, I should say, is that crime has been way down.  As people have been sort of in their homes, basic street crime has been way, way, way, way down.  The one area of concern that I think a lot of us have is around domestic violence, of violence between intimate partners or between parents and children or children and parents.  When people are sort of in close quarters for a long period of time, victims may have nowhere to go, and so I worry that we’re – that there may be an unseen epidemic of domestic violence going on.  But otherwise, the news is quite good that people are acting in a more lawful manner.  Crime, as I said, is way down, and that’s a silver lining to an otherwise very difficult situation.  

MODERATOR:  Thank you.  All right, do we have any final questions, any follow-up questions?  You can raise your hand or say in the chat.

QUESTION:  (No response.)

MODERATOR:  All right.  Well, if there are no more questions, we will conclude today’s briefing.  Thank you to everyone for joining us today and thank you to our briefer.  We will share today’s transcript and video link as soon as it is available, and I hope everyone has a great Memorial Day Weekend.  Thank you very much. 

MR CUNNINGHAM:  Thank you, Katie.  

U.S. Department of State

The Lessons of 1989: Freedom and Our Future