Have Americans unwittingly abandoned their right to a trial by jury? David Leavitt, the Utah County attorney, is convinced that the overuse of plea bargains by government prosecutors is directly connected to the United States having the world’s highest prison population per capita.
Criminal justice reform at the local level is more than just good policy in his eyes, it’s part of an injustice in dire need of correction. Leavitt’s perspective formed through his extensive experience in advising governments at all levels, both here in the states and overseas.
Utah Upbringing
Leavitt grew up in Cedar City, Utah as one of six sons to former state legislator Dixie Leavitt who founded The Leavitt Group, a regional insurance business. Several of his brothers followed their father by working in the family business. This was David’s intention as well until the beginning of his final year in law school at Brigham Young University.
“I was looking to fill a couple credits and there was this class on criminal justice,” Leavitt said. “I took that class and knew immediately that I would not join the family business, but I would go into criminal law.” That law school class sparked an interest in his young mind in learning how to build a case where a jury would declare guilt or innocence after the facts were presented.
Leavitt and his wife Chelom, who is also a lawyer, graduated law school and moved to Millard County to take up a public defense contract. He was committed to practicing criminal law even though most of his law school classes had been chosen to prepare him to work in the family business. “I had never seen a court hearing or jury trial, much less participated in one so I was as green as they come,” Leavitt said.
Soon after, Leavitt started representing defendants in the criminal justice system. But he quickly became concerned with what he experienced. “What I saw in court was different from what I learned in school,” Leavitt said. The great principles of juries and advocacy and persuasion were cast aside because “everyone expected to settle everything with a plea bargain.”
This began Leavitt’s nearly 30-year journey “to figure out truly what the evils are of the plea bargaining system.”
He began defending clients in court with success despite his novice entry. “It wasn’t that I was any good,” Leavitt said. But one of the consequences of our country’s dependence on the plea bargain system is that the police often don’t investigate crimes like they should because they know what’s going to get settled. Leavitt acknowledges his insistence on evidence in court frustrated law enforcement at times, but he was “fairly successful” in defending his clients because he was “actually trying.”
Leavitt acknowledges his insistence on evidence in court frustrated law enforcement at times, but he was “fairly successful” in defending his clients because he was “actually trying.”
Service as Juab County Attorney and Years in Private Practice
In 1995, a mid-term vacancy of the Juab County attorney became difficult to fill when no one in the county could be found to take the job. Officials then looked outside the county and offered the appointment to Leavitt. He accepted and at the age of 31 started work as the county attorney.
Leavitt was now the top prosecutor and, for the first time, on a different side of the adversarial court process. “I learned right off the bat that the most powerful person in the system is the prosecutor,” Leavitt said. “The prosecutor gets to decide what will be prosecuted and whether plea bargains will be used to resolve anything.”
Leavitt’s first-hand experience with plea bargains as the county attorney caused him to think about its proper place in court and the injustice it creates when used improperly. “The plea bargain system takes power away from the people and puts it squarely in the hands of prosecutors, where it shouldn’t be,” he said.
After losing a close race for a third term, Leavitt subsequently started a law practice defending clients in the federal courts in Salt Lake City. The money was significantly better and he did quite well, but became disillusioned with the system. “I found myself completely burned out in what I could see was a growing futility in the criminal justice system,” Leavitt said.
An inordinate amount of time was spent prosecuting crimes that “hurt people far less than some of the crimes that never get prosecuted,” he said. The criminal system wouldn’t let some defendants catch a break. “Quite frankly, the system cares more about punishing perpetrators than caring for victims,” Leavitt said with a bit of indignation.
That frustration he developed with the criminal justice system continues today. “In Utah County, we spend $15 million putting people in jail to punish them for their crimes, but we spend almost nothing to take care of victims,” he said. If money signifies what we care about, Leavitt continued, “then we care a lot more about retribution and punishment than we do about just making victims whole.”
Leavitt continued defending clients until he realized that he was just twiddling his thumbs “in a system that doesn’t make any sense whatsoever.” He wanted to make a difference. So Leavitt and his wife shut down their profitable practice and volunteered with the American Bar Association to travel to Ukraine for a year. Little did he know that he would spend the next 14 years helping Ukrainiens.
Ukraine and the Price of Freedom
In 2004, the Leavitts took their six kids and flew to Kyiv, Ukraine with 43 pieces of luggage. Ten days after they landed, the Orange Revolution ignited in the country. It was a bloodless revolution promulgated by strikes, sit-ins, and other demonstrations of civil disobedience to show support for presidential candidate Viktor Yushchenko. Communist sympathizers had nearly killed him by poison because of his plans to strengthen relations with Western Europe.
Protests began when official election results differed significantly from exit polls and complaints of election fraud poured in from local and international observers. Accusations of interference from Russian operatives matched evidence. Yushchenko’s orange party asked Ukrainians to protest and over 500,000 people gathered at Independence Square in Kyiv, just blocks from Leavitt’s new office.
“Three generations of Ukrainians had suffered under the Soviet government and most were in the habit of just acquiescing control to the Russians,” Leavitt said. “But Yushchenko sparked something different. He went to the square and said, ‘You know, we’ve had our independence from the Soviet Union for 13 years, but we’ve never been free. I am not leaving this spot till my country has its freedom,’ according to Leavitt”
Over the next several weeks, Leavitt witnessed many brave Ukrainians risk everything they had for their freedom. Millions of people throughout the country protested till a new election was called and Yushchenko declared the winner.
The people of Ukraine took a significant step towards a free society and Leavitt and his family were there to witness it. “That altered my DNA at a molecular level,” Leavitt said. “I suddenly understood that I had no idea what freedom required.”
Leavitt felt he had something to offer this country yearning to live free by teaching them how a criminal justice system is supposed to work. He founded the Leavitt Institute for International Development and taught the importance of jury trials and advocacy skills in universities all around the country. The organization is still up and running to this day.
After several years, his family moved back to Utah but Leavitt spent 14 years commuting back and forth. Then he had a troubling thought. “I could point you to a spot in the Costco bread aisle in Orem,” Leavitt said, “where I realized that I had no business traveling 7,000 miles away trying to reform someone else’s criminal justice system when my own is falling apart.”
So he resigned from the institute he founded and put it in the hands of others. Leavitt came home to the state and decided to run for Utah County attorney.
Utah County Attorney and Reforming the Criminal Justice System
Leavitt ran on a straightforward platform of reforming the criminal justice system and won the Republican primary by 18 points. In the beginning of 2019, he took office and contemplated how to bring about effective criminal justice reform in Utah’s second largest county, and arguably the most conservative.
“Criminal justice reform is an American issue. But if you look at it through a political lens, it’s far more a conservative issue than a liberal one,” Leavitt said. He notes that conservatives usually hold a general distrust of government. That is, until it comes to questions of law enforcement, then conservatives for some reason put all their trust in the government.
In our interview, Leavitt reiterated the importance of separation of powers and how the Founding Fathers gave each branch specific powers. However, Leavitt continues, “there are two significant powers that the Founders never gave government and instead reserved them to the people.”
The first is the power to accuse someone of a crime. This he says was reserved to the people through the form of a grand jury. The second is the power to find someone guilty of a crime. The Founders also reserved that to the people in the form of a jury.
Historically then, a jury constitutes a check on government power. Leavitt then quoted John Adams, saying, “Representative government and trial by jury are the heart and lungs of liberty. Without them we have no fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hogs.”
The practice of overusing plea bargains, Leavitt argues, is a consolidation of power in the hands of the elected prosecutor. It wasn’t till the Civil War when prosecutors started using plea bargains more often, a practice severely frowned upon until then.
For the next hundred years, the use of plea bargains by prosecutors skyrocketed. By the 1960s, roughly 75% of cases were settled by plea bargain. This launched “a huge confluence of laws that criminalized everything with harsh penalties attached,” Leavitt said.
Originally, prosecutors would focus on crime that actually hurt society. But today, approximately 90% of those incarcerated were arrested for non-violent crimes and simply agreed to a plea bargain with a more lenient crime in exchange for relinquishing their right to a trial by jury.
Plea bargains have gotten so out of control in our country, that Leavitt estimates that nearly 99% of all cases are settled and never taken to a trial by jury. Leavitt argues this concentrated power is “antithetical to what our Founders believed the criminal justice system should be.”
Reforming Measures to Our Criminal Justice System
Leavitt is focusing his team of prosecutors on a new set of questions for each case. First, does the evidence sufficiently support the accusations against the individual? And second, does society need this to be prosecuted for the community to be protected?
“We don’t want to hand felonies out like candy,” Leavitt said. A criminal record can sometimes do more damage to a person’s life than the wrong they committed against the community. The vast majority of drug offenses, Leavitt said, are non-violent and often don’t warrant a harsh punishment.
However, he wants to be clear that violent criminals belong in jail in order to protect the community. The violent and dangerous who constitute 10% of the prison inmates deserve to be in jail, “but for most non-violent offenders it just doesn’t make sense.”
Instead he wants to offer low-level offenders an alternative to address their crimes before charges are filed. This is called the pre-filing diversion program that gives prosecutors far more options on how to handle the case through community service, drug treatment, etc.
Leavitt offered a hypothetical example of a college student who is caught shoplifting or is in possession of marijuana. Normally this non-violent offense would still make this person a criminal and go on his permanent record.
Furthermore, most low-level offenders get caught in the system by violating probation or lose their job or house because of their criminal record. But the pre-filing diversion program allows for the offender to learn something and turn their life around without being labeled a criminal for the rest of their lives.
“It’s all based on the theory that the best punishment is a punishment that comes immediately after you commit the offense,” Leavitt said.
“Changing the Way We Use the Plea Bargain”
Leavitt is changing the way his office utilizes the plea bargain. “If someone commits a crime, I usually can charge that person 15 different ways,” he said. What prosecutors do now is charge that person with all 15 offenses so the risk of penalty is so great the defendant will accept a plea bargain. “That practice has to stop,” Leavitt said emphatically.
Instead, he wants his prosecutors to ask “what does society need me to charge for its protection?” The offer to the defendant will be a fair trial or they can plead guilty. Again, Leavitt’s hope is that we will stop incarcerating non-violent people and start finding treatment options for them.
Another reform Leavitt has made is to make his prosecutors defend their charges to a review board. Traditionally, when a prosecutor gets assigned to a case he makes his own determination about what charges should be made with little to no accountability. This unchecked enormous power leaves Leavitt feeling uncomfortable.
Now, county prosecutors make their determination then present their charges to a daily meeting where six or so peer-lawyers will discuss the case and vote on what charges they feel are appropriate.
A Plan with a Long Term Vision
Leavitt knows that reforming the criminal justice system, even just in Utah County, will take many years of consecutive work, maybe even decades. Plea bargains do have a proper place in the justice system, but his team will work on taking more cases to a jury trial that need one.
Leavitt says he doesn’t have a quota on how many plea bargains his office will allow. But he ended our interview saying that if he could reduce the plea bargain rate by even just 5%, he would consider that an “enormous success.”
