Warning: The editorial comment you are about to listen to has not been endorsed by the management of the College of Law. Most academic commentators have arrived at contrary opinions. But--darn it--I'm right." Paul Cassell, a law professor at the University of Utah, often flashes this message to his students on an overhead projector. He is probably the nation's best-known conservative challenger to the legal status quo, and he revels in the role.
In June, however, he seemed for a moment to have been stopped in his tracks. The Supreme Court upheld its 1966 Miranda ruling (made famous by TV police dramas in which suspects are told, "You have the right to remain silent... .") by the surprisingly wide margin of seven to two, decisively rejecting the legal reasoning behind Cassell's eight-year crusade to overturn the decision. But Cassell has promised to find other ways to press the issue, and Miranda, in any case, is just one of Cassell's three passions. He is also a leader in the movement for a victims' rights amendment to the Constitution. (He represented the families of 89 victims in the Oklahoma City bombing trial.) And in the midst of a growing debate about the death penalty, Cassell has emerged as the academic world's foremost defender of capital punishment.
On all three issues, Cassell skirts the line between objective scholarship and partisan advocacy. Most scholars dispute his claim that 28,000 criminals walk free every year because of Miranda, as well as his argument that the chances of a wrongful execution are trivially small, but he's become an activist litigator and a prominent legal voice nonetheless. "He likes to call himself an obscure professor from a small school, but he's certainly shed his obscurity quickly and dramatically," says Yale Kamisar, a co-author of the country's most widely used criminal law textbooks. And since Cassell is only 41, he could be influential in shaping our country's legal system for decades to come.
Raised in Idaho, Paul Cassell began college at Stanford, transferred to Western Washington University for two years to compete on the school's debate team, and returned to Stanford to graduate. He went on to Stanford Law School, where he was the president of the law review, and from there to clerkships with Antonin Scalia (then serving on the U.S. Court of Appeals) and Supreme Court Chief Justice Warren Burger. When Cassell then joined the Reagan Justice Department as a federal prosecutor, his credentials were already impressive. He even describes himself as "the first person to use the Federalist Society as a dating service," having met his wife Patricia at one of the conservative legal society's famous Chinese luncheons.
But after less than two years at the Justice Department and only three more as a prosecutor in Virginia, Cassell decided that it was time to move on. "I was tired of chasing criminals one at a time," he says; instead, he wanted to pursue system-wide reform. He accepted a teaching position at the University of Utah in 1992.
Champion of the Death Penalty
By then, he was already an outspoken champion of capital punishment. In 1987, while Cassell was still at the Justice Department, the Stanford Law Review published a ground-breaking article by Hugo Bedau of Tufts University and Michael Radelet of the University of Florida. Their study described 350 "potentially capital cases" in which the authors believed that innocent people had been wrongfully convicted--and 23 apparently wrongfully executed. In response, Cassell and a colleague, Stephen Markman, drafted a rebuttal, claiming that all 23 men were guilty.
In a recent telephone interview, Radelet emphasized that he has never met Cassell and has no reason to question his integrity. But he stood by the findings of his original article. "What Cassell and Markman did was rehash the case for the prosecution, and then declare victory," he said. "I don't think that what they said erased the substantial doubts about guilt in those cases. I stand by every single one of them."
Most death penalty experts agree with Radelets criticism of the study. Moreover, they say, Radelet and Bedau's study clearly demonstrates serious inequities in the criminal justice system, even if we don't finally know whether these 23 men were innocent. But Cassell has largely ignored these criticisms. Instead, wherever he goes, he repeats one basic point like a mantra: There is, he says, no documented case of a wrongful execution in America for at least 50 years. In just one week in June, he made this claim on NPR's Talk of the Nation, CNBC's Hardball, and the FOX News Channel's Hannity & Colmes. The idea that an innocent person has been put to death, he says, is an "urban legend."
But no proof of a wrongful execution is not the same as no likelihood of a wrongful execution. As conservative columnist George Will has written, the mounting evidence of errors in capital cases "compels the conclusion that many innocent people are in prison and that some innocent people have been executed." In June, Columbia University law professor James Liebman released a study of all the death sentences that were appealed (as almost all death sentences are) from 1973 to 1995: More than two-thirds of them, he found, were eventually overturned. Since 1976, the Death Penalty Information Center reports, 87 death row inmates have been freed from prison for lack of evidence.
Cassell's response to the Liebman study was true to form. The researchers, he wrote in The Wall Street Journal, "were unable to find a single case in which an innocent person was executed. Thus, the most important error rate--the rate of mistaken executions--was zero." But this analysis willfully misses Liebman's point. Of course his study didn't find anyone who was wrongfully executed--it was designed to document the cases in which death sentences were overturned, not to root out the cases in which they should have been.
What's most striking about Cassell's position is his absolute confidence about an issue that is--almost by definition--riddled with uncertainty. "Believe me," Cassell says with startling finality, "the abolitionists are well-funded. The reason they haven't been able to find someone [wrongfully executed] isn't the lack of energy and funding; it's because there isn't anyone out there to find."
Cassell couples this claim with the equally questionable argument that innocent people have died because of a failure to use the death penalty. He points to Kenneth McDuff, a convicted murderer whose death sentence was overturned when the Supreme Court temporarily banned capital punishment in 1972 and who killed again after being released because of prison overcrowding. Society, Cassell argues, needs the death penalty to ensure that the most brutal convicted murderers can never kill again. But life without parole would also have stopped McDuff, and Cassell completely ignores that possibility.
"I make a living defending common sense positions," Cassell says. It's a charming conceit, but calling unrigorous arguments "common sense" does not improve them.
Cassell is better known for his "common sense" crusade against Miranda v. Arizona. In that decision, the Supreme Court held that a defendant's Fifth Amendment right against self-incrimination was threatened not just in the courtroom, but also in the high-pressure environment of a custodial police interrogation. Therefore, the Court ruled, suspects must be informed of their right to remain silent and to have an attorney present during questioning. Moreover, any confession taken by the police without these warnings is--under Miranda's "exclusionary rule"--inadmissible in court. Although critics immediately claimed that Miranda would "handcuff the police," most academics over the next 30 years came to the conclusion that Miranda's impact on law enforcement was minimal.
But to Cassell, Miranda was "the most damaging blow inflicted on law enforcement in the last 50 years." Like earlier Miranda critics, he attacks the decision for elevating technicalities over substance and for primarily benefiting the guilty (since, he says, the innocent are likely to waive their rights). But the centerpiece of Cassell's critique is what he calls the "lost confession" problem: If the police inform all suspects that they don't need to talk, he says, then common sense tells you that this will discourage confessions.
On the legal side, the heart of Cassell's case against Miranda is a law known as Section 3501. In its decision, the Court left the door open for Congress to replace the Miranda warnings with some other system, so long as it was equally protective of defendants' rights; and in 1968, Congress passed Section 3501, which declared that any "voluntary" confession was admissible in court--even if no warnings were read. This was intended to gut Miranda, but Section 3501 has almost never been enforced.
Thus, Cassell's eight-year war on Miranda has been waged on two fronts. He has written a number of law review articles that attempt to quantify Miranda's supposedly devastating effects on police work; at the same time, he has filed briefs in Miranda-related cases around the country, hoping to convince the Supreme Court to declare Section 3501 constitutional and thereby overturn Miranda's exclusionary rule. (Cassell proposes a system in which the police would still be required to read suspects a modified version of the warnings, but failure to do so would not necessarily lead to the suppression of a confession.)
In a 1996 law review article, Cassell sought to quantify Miranda's effect on the confession rate by examining studies completed just before and after the decision. The studies varied in quality, he admitted, so any estimate based on them would be somewhat questionable; Cassell eliminated those he considered most severely flawed, averaged the rest, and came up with an estimate. His findings? Confessions, he argued, fell by 16 percent after Miranda--a drop that translated into a 3.8 percent decline in convictions, meaning that 28,000 criminals walk the streets every year because of the decision. Cassell also calculated that Miranda had led to a drop in the police clearance rate--the rate at which the police solve crimes--and drew attention to it with a graph showing its precipitous fall. When critics responded that the fall in the clearance rate might not be attributable to Miranda, Cassell and a colleague--the economist Richard Fowles--published a multiple- regression analysis to show that the decision had made a difference.
But other scholars dispute Cassell's findings and suggest that his methodology is highly suspect. In 1996 Stephen Schulhofer of the University of Chicago re-examined Cassell's study of the confession rate and criticized him for the way he chose which studies to include in his average. Cassell had scrapped a Los Angeles study that reported a 10 percent increase in confessions, for instance, partly because he found its results implausible. Schulhofer, however, believes that other studies used by Cassell were just as problematic. In the end, Schulhofer concluded, a more reasonable estimate of the drop in convictions was an insignificant 0.78 percent.
In 1998 John Donohue, a Stanford law professor and economist, reviewed the Cassell-Fowles regression analysis and found that Cassell had read too much into the data. "A very substantial part of what Cassell believes to be a drop in clearance rates is really a result of better data collection," he says, pointing out that the police became far more professional during this period. At the same time, Schulhofer adds, the changing face of crime probably helped drive down the clearance rate--the 1960s witnessed a shift from "acquaintance crimes" to harder-to-solve crimes by strangers. And Miranda was decided during such a volatile period that its effects can probably never be differentiated from the results of other momentous changes, like new attitudes toward authority and declining police resources. "It's hard to believe that any respected social scientist would attempt to draw such an inference under those conditions," says Schulhofer.
Cassell, however, remains unperturbed. When the debate began, he says, Miranda supporters based their theories on mere guesswork and accused him of doing the same. When he proved his case with empirical data, he continues, his opponents began to talk about "changing attitudes" and "the collapse of public confidence in the police." "Eventually I chased my opponents from empirical assertions to untestable arguments," Cassell concludes.
Meanwhile, Cassell sought to convince an appellate court to accept a suppressed confession on the grounds that Section 3501, not Miranda, was the law of the land. With his chief ally, the conservative Washington Legal Foundation (WLF), he searched the country for appropriate cases, filing a legal brief in each one as an amicus curiae (or "friend of the court") and hoping that his reasoning would find a receptive audience.
The strategy took several years to pay off. At first, most academics thought that Cassell was tilting at windmills, and in court, he says, "the reaction was often, 'Professor, we have a real case to deal with. Take this issue somewhere else.'" Then, in 1994, Justice Antonin Scalia mentioned Section 3501 favorably in a decision. In 1997, in United States v. Leong, the right-wing Fourth Circuit was sympathetic to Cassell's position but had to suppress the confession because of what Cassell termed "procedural technicalities." Later that year, he thought that he'd discovered the perfect case, but the defendant skipped bail, and the issue became moot. Finally, however, Cassell found what he was looking for. In 1999 the Fourth Circuit ruled in United States v. Dickerson that the Miranda warnings were not mandated by a full-blown constitutional requirement and were superseded by Section 3501. The next stop--at last--was the Supreme Court.
Since neither Dickerson's attorney nor the Justice Department would defend Section 3501, the justices had to appoint counsel to defend it in court. They turned, naturally enough, to Cassell. The professor and the WLF assembled a wide array of amicus briefs from law enforcement organizations and victims' groups, prepared a detailed brief of their own, and last April presented oral argument to the Court.
And they lost. Chief Justice William Rehnquist led a seven-justice majority in striking down Section 3501. "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture," Rehnquist wrote--even as he suggested that he might not have supported Miranda had he been on the Court in 1966. But despite its muted tone and its reliance on precedent, the decision was a strong reaffirmation of Miranda and an unmitigated defeat for Cassell. "It seems to me that it's now virtually impossible for a later Supreme Court to overturn Miranda," says George Thomas, a law professor at Rutgers University.
Cassell concedes that this was a serious setback. "Even the spinmeisters in the Clinton administration would have trouble telling you otherwise," he says. But it is crime victims, he insists, who will bear the brunt of the decision. "Their voices are not heard, and their pain is not felt."
Read almost any of Cassell's law review articles and scholarly papers, and you'll hear a great deal about victims. Cassell often criticizes opponents of capital punishment and defenders of Miranda for their insensitivity to victims--as often as for their lack of common sense.
There's no doubt that he enjoys this kind of political brawling. "The left has rallied around Miranda because of its iconic status, when it hasn't served them very well," Cassell says, ignoring the chief reason that liberals have needed to defend the decision--because he himself has been trying to overturn it. Yet in one sense, most liberal scholars agree with him: The police have often succeeded in finessing the Miranda warnings and manipulating suspects into waiving their rights, and so the decision has not fully met its authors' expectations [see Alex Nguyen, "The Assault on Miranda," TAP, March 27-April 10, 2000]. Everyone--from Paul Cassell to Stephen Schulhofer--agrees that videotaping police interrogations would be an important step forward for defendants' rights.
But videotaping alone, as Cassell proposes, is not enough. It would prevent the police from lying about whether they've read suspects their rights, and it might stop the most blatant manipulation of suspects, but as Schulhofer points out, "if 100 people watch the tape, you'll have 100 different opinions on whether it was voluntary." Moreover, the police need clear guidance on what is and is not acceptable. And suspects need the strong protections that Miranda mandates, like the "cut-off rule," which prevents the police from continuing an interrogation against a suspect's will.
An Omen for Victims' Rights
After the Dickerson decision, Cassell says, "I told Doug [Beloof, who is working with Cassell on a book about victims' rights] that this was an omen that I need to get back to crime victims' issues." The campaign for a victims' rights amendment, Cassell points out, transcends the usual left-right divide. And indeed, one of Cassell's most prominent allies in this effort is Harvard law professor Laurence Tribe, a well-known liberal.
But the victims' movement in general--and Cassell's work in particular--is driven by a combination of genuine humanitarian concerns and potentially illiberal impulses. The movement has fought to ensure that victims are treated with dignity and respect in the courtroom. Its central goal is to enact a constitutional amendment that would (among other things) guarantee victims the right to a "trial free from unreasonable delay"; the right to "reasonable notice of, and not to be excluded from, any public proceedings relating to the crime"; and the right to make a statement before sentencing, plea bargaining, and parole decisions. But these very provisions can also threaten the rights of defendants--and favor the needs of victims over the justice system's central goal of adjudicating guilt and innocence.
Here again, Cassell has been an activist. Soon after he moved to Utah, he joined the Utah Council on Victims, which monitors the court system's treatment of crime victims; Cassell helped the council write a victims' rights amendment to the state constitution and intervened in several child abuse cases to ensure the victims' right to a speedy trial after the amendment's 1994 passage. In 1997 Cassell represented the families of 89 victims at the Oklahoma City bombing trial, where he won a $14.5 million restitution order against the convicted bomber Terry Nichols and fought to ensure the right of the victims to observe the proceedings and give victim-impact testimony before sentencing. Cassell also serves on the steering committee of the National Victims' Constitutional Amendment Network and was one of the main drafters of the victims' rights amendment to the U.S. Constitution, which was introduced in Congress by senators Dianne Feinstein and Jon Kyl.
Cassell argues that his trial work demonstrates the need for a constitutional amendment to change the legal culture and sensitize judges and prosecutors to victims' needs. At the Oklahoma City trial, he says, victims were offered a "cruel choice" between watching the trial and testifying to the jury before sentencing. But other experts believe that the trial judge--who ended up interviewing all victim-impact witnesses to ensure that their testimony hadn't been tainted by their watching the proceedings--made a series of fair and reasonable decisions given the difficult task at hand. And Beth Wilkinson, one of the prosecutors, argues that the amendment would have made her job more difficult by enabling victims to challenge the plea bargain negotiated with Michael Fortier, a key witness.
Cassell addresses such concerns with breezy answers. If, say, there's a trial with three victims, each of whom hears the testimony of the others, Cassell suggests that "the defense attorney can say, 'Ladies and gentlemen of the jury, look--all three of them were sitting there watching, so of course their stories line up.'" But would jurors, who may already be likely to favor victims over defendants, heed such a caution?
Or take the worry of many civil libertarians about the amendment's guarantee of a "speedy trial." Cassell says that this provision couldn't hurt criminal suspects since, after all, the Constitution already gives the same right to the accused. But it's one thing to guarantee defendants that they won't be imprisoned for months without the chance to present their case, and quite another to endanger their right to a wellprepared defense. Questioned more closely, Cassell acknowledges only that there is a "theoretical risk" that the right of victims to a speedy trial could hurt some defendants, but he suggests that the amendment's wording makes that conflict unlikely.
The fact is, the effects of the victims' rights amendment can't be predicted with any certainty. Some civil libertarian worries may prove to be unfounded, but others will surely be valid. And on a larger level, the amendment could promote a troubling paradigm shift in the way we think about the rights of defendants, according to Duke University law professor Robert Mosteller. What were once a defendant's rights--to protection from an all-powerful state--could become, under the new paradigm, mere interests, which must be balanced against other, competing interests. Today we worry about unjust convictions; under the new paradigm, will we be concerned with "unjust acquittals"?
Last April, just days after the Dickerson oral arguments, senators Kyl and Feinstein invited Cassell and the other members of the victims' rights movement's "brain trust" to Washington to help out during the final push for the amendment. At that point, the amendment was within a few votes of passage in the Senate; the main stumbling block was opposition from the Clinton administration, which had endorsed the amendment in principle but had doubts about its language. The Justice Department sent the amendment's backers a list of four changes it required, three of which the coalition was willing to concede. The deal-killer, however, was this line proposed by the administration: "Nothing in this article shall be construed to deny or diminish the rights of the accused as guaranteed by the Constitution."
The amendment's supporters rejected that proposal, claiming that it would forever subordinate the rights of victims to the rights of the accused. "To put that language in would have perpetuated the very problem we were trying to solve," says Cassell. They proposed adding yet another line: "In cases of conflict, the rights of the accused or convicted offender and the victim shall be reasonably balanced." But the Justice Department refused to accept that language, and senators Kyl and Feinstein withdrew the amendment from consideration until next year.
At the most basic level, all three of Cassell's pet issues are driven by the conviction that our judicial system is unduly deferential to the rights of criminal suspects. But this is a fallacy. As Mosteller points out, "Judges aren't falling over themselves to favor defendants' rights over victims' rights." Many judges, after all, are elected; if anything, the pressure on them is to favor the sympathetic victim, not the unpopular defendant. Similarly, Schulhofer criticizes Cassell for exaggerating the impact of Supreme Court decisions on crime prevention. "Conservatives would much rather talk about court decisions handcuffing the police ... than they'd like to talk about government programs that could make a real difference," he says.
At the same time, Cassell seems determined to refute any evidence that the system is error-prone or capricious, which would undermine his hopes for a powerful state and scaled-back protections for the rights of suspects. These fervent beliefs make Cassell a favorite with op-ed editors and talk-show programmers, but his portrayal of the criminal justice system is incomplete and misleading. And his advocate's agenda hasn't strengthened his scholarship. It is no surprise to find that, as Cass Sunstein, a law professor at the University of Chicago, says, "Cassell has yet to make any mark as an academic."
Cassell himself shrugs off such criticisms. "In academia," he says, "so many people are used to agreeing with each other that when someone disagrees, he's a 'partisan advocate.'" And there's no sign that the controversy is diminishing his political influence. Last winter he was rumored to be a front-runner for a position on the Utah Supreme Court, though he withdrew his name from consideration so he could concentrate on Dickerson. Should George W. Bush win the White House, he'd be an obvious contender for a federal judgeship.
It's not Cassell's activist approach, however, that's most worrisome. "Sometimes it's good to have the ideologues raise the issues and then have the more balanced analysts resolve them," says John Donohue. "But Cassell wants to both raise these issues and resolve them, and that may not be a good combination." ¤