Fair Enough? Truth, Justice, and the Case of Chrystul Kizer
Every now and then, we will take a close look at a particular criminal case – sometimes from the headlines, sometimes not – and try to answer the simple question whether the resolution was fair enough? Why fair enough? Because the criminal justice process – and especially criminal sentencing – is a fusion of competing goals and values. It is imperfect and will almost certainly always be so. For example, the criminal justice process seeks to find the truth but at the same time excludes probative information obtained by law enforcement in violation of the Constitution. Sentences are meant to promote public safety through deterrence but also must be proportional to the crime of which the defendant was convicted. Justice is a blend of values, and perfect fairness will usually be unobtainable. Hence, fair enough.
One of us will write up the case, present our view, and ask the others to weigh in. Of course, we invite you to weigh in, too, via comments to the post. Here goes . . .
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A few weeks, Hunter Biden, the President’s son, walked into a federal courtroom in California. His trial on federal tax charges was scheduled to begin that day, and over 100 prospective jurors had been assembled for the start of jury selection. But when court was called into session, to the surprise of most, his attorney, Abbe Lowell, announced that Biden was prepared to enter a so-called Alford plea. Biden would maintain his innocence, Lowell suggested, but would acquiesce to being found guilty without a trial.
It might seem odd, at first blush, that someone who maintains his innocence would want to plead guilty. But there are indeed many rational reasons why an innocent person would want to. As the American Bar Association’s Task Force on Plea Bargaining wrote in its review of plea practices that was adopted by the Association last year, it happens for a number of reasons. For instance, an offer to drop a charge carrying a mandatory minimum imprisonment sentence in exchange for a guilty plea to a lesser offense might be too good a resolution to pass up, even for one who believes in their own innocence, depending on the circumstances and the totality of the evidence and the risk of conviction on the higher charge. Or, as Biden claimed, the impact of the trial itself on one’s family might push someone to accept a guilty plea simply to avoid the trial and whatever embarrassment to the family might come with it.
The Supreme Court has said it is lawful and consistent with our Constitution for a court to accept a guilty plea from a person who maintains his innocence. In 1970, the Court, in North Carolina v. Alford, ruled that such guilty pleas are indeed acceptable. “An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” The Court found it acceptable when a defendant concludes that his interests require the entry of a guilty plea and “he had absolutely nothing to gain by a trial and much to gain by pleading.” What is remarkable to me about the opinion is that the Court so easily embraced the plea process as simply transactional and did not grapple much with the implications of allowing the truth-seeking foundation of the courts to be so readily subverted.
I find the focus of the Court in Alford on the transaction and whether it benefits the interests of the parties rather than the truth-seeking function of the courts – efficiency over integrity – also quite disappointing. Truth and justice were always the American way, we were led to believe as youngsters. And from Supreme Court justices to Malcolm X, we were told the two were joined. Courts are certainly not flawless in getting to the truth. And competing values – like ensuring the innocent are not convicted and thus requiring proof of guilt beyond a reasonable doubt for a conviction – may require the focus on truth to bend. But it seems like truth as a foundational component of justice should be a cornerstone of our courts.
When Lowell announced Biden’s intent to plead guilty despite his insistence on his own innocence, Leo Wise, the Assistant Special Prosecutor who was in court to begin the trial, strongly objected. “I want to make something crystal clear – the United States opposes an Alford plea,” Wise said. He added, “Hunter Biden is not innocent. Hunter Biden is guilty. He is not permitted to plead guilty on special terms.” After a break in the proceedings, Biden changed his mind and was willing to move forward with an “open plea;” to unilaterally plead guilty – and admit his guilt – to the offenses, with no bargain with the government. Biden concluded that “enough is enough” and told the court and the public he was indeed guilty.
When Wise objected to the Alford plea, he was following Department of Justice policy. Section 9-27.440 of the Justice Manual, the public repository of internal Department of Justice policies and procedures, states that “[t]he attorney for the government should not, except with the approval of the United States Attorney and the appropriate Assistant Attorney General, enter into a plea agreement if the defendant maintains his/her innocence with respect to the charge or charges to which he/she offers to plead guilty.” The policy’s rationale is set forth in the Manual.
Despite the constitutional validity of Alford pleas, such pleas should be avoided except in the most unusual circumstances, even if no plea agreement is involved and the plea would cover all pending charges. As one court put it, "the public might well not understand or accept the fact that a defendant who denied his guilt was nonetheless placed in a position of pleading guilty and going to jail." See United States v. Bednarski, 445 F.2d 364, 366 (1st Cir. 1971). Consequently, it is often preferable to have a jury resolve the factual and legal dispute between the government and the defendant, rather than have government attorneys encourage defendants to plead guilty under circumstances that the public might regard as questionable or unfair.
A justice system based on a foundation of truth-seeking should not, I believe, generally allow the question of a person’s genuine guilt to be left lingering in the air in the wake of untested protestations of innocence. Biden tried to manipulate the court process and public opinion along with it. It was a cynical move that Lowell should have counseled against (and maybe he did). Wise did the right thing, and with Biden’s ultimate capitulation to the truth, we can now get on to the sentencing, more assured that a sanction will not be imposed on an innocent man.
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Which takes us to the case of Chrystul Kizer. When she was 17, in 2018, Kizer intentionally shot and killed Randall Volar at his Kenosha, Wisconsin home. She then set fire to Volar’s house and drove off in his BMW. Kizer was caught, and she was later charged by the local prosecutor with multiple criminal counts, including first-degree intentional homicide, arson, car theft, and being a felon in possession of a firearm.
Kizer told police she first encountered Volar years earlier on Backpage, a notorious website whose owners were later convicted of facilitating prostitution and sex trafficking using the site. Kizer said that for the year before his death, Volar had been sexually abusing and otherwise mistreating her, including by marketing her as a prostitute. She said she shot him as he tried to touch her.
A few months before the shooting, a different 15-year-old girl called police from Volar's home saying Volar had drugged her and was going to kill her. The police responded, searched Volar's home, and found evidence of child sex abuse, including videotapes of Volar abusing Kizer and other underage girls. On February 22, 2018, Volar was arrested for child enticement, second-degree sexual assault of a child, and using a computer to facilitate a child sex crime. He was released that same day without bail. Police waited three months before submitting the case to prosecutors. Twelve days later, on June 5th, while Volar was still free on bail, Kizer shot and killed him.
Kizer’s attorneys argued in court proceedings that she could not be held criminally accountable for any of the crimes for which she was charged because of a Wisconsin statute that exempts sex trafficking victims from “any offense committed as a direct result” of being trafficked. Over the last decade, many states have enacted similar laws that provide sex trafficking victims with some amount of protection from criminal liability associated with their victimization. Arguing in court pleadings that victims of trafficking feel imprisoned and occasionally are driven to take matters into their own hands, women’s rights organizations came to Kizer’s defense. The prosecution was not moved, though, and it objected to the application of the Wisconsin law to violent crimes and to the idea that Kizer could be fully exonerated from murder. Kizer’s case ended up in the Wisconsin Supreme Court before any trial on the merits.
In 2022, the Wisconsin Supreme Court decided Kizer could indeed raise the affirmative defense around her abuse during trial and that Kizer could be fully exonerated by the jury. The trial court had earlier ruled that the defense did not apply to violent crimes, but the Supreme Court overturned that decision. In a 4-3 opinion, the Court held that the law provided trafficking victims with an affirmative defense to any offense, including violent crimes, committed as a direct result of the trafficking. The court defined "committed as a direct result" as a "logical, causal connection between the offense and trafficking such that the offense is not the result, in significant part, of other events, circumstances, or considerations apart of the trafficking violation". The court also held that the affirmative defense law was a "complete defense" to criminal liability, and not just a "mitigating defense" that would lower the first-degree murder charge to a second-degree murder charge. Kizer could present evidence at trial that her actions were a direct result of being trafficked and remanded the case back to the trial court.
But the case never went to trial. Earlier this year, on May 9th, Kizer and local prosecutors entered into a plea bargain. Kizer pled guilty to one felony count of second-degree reckless homicide, which carries a maximum sentence of 25 years in prison. The plea ensured that Kizer would not receive a mandatory life sentence, which is the statutory minimum sentence for someone convicted of first-degree intentional homicide in Wisconsin. As part of the bargain, felony charges of arson, car theft, illegal possession of a firearm, and bail jumping were dismissed. About a month ago, on August 19th, Kizer was sentenced to 11 years in prison on the reckless homicide charge, with more than a year and a half of time already served, plus 5 years of extended supervision.
As you might imagine, Kizer’s supporters were disappointed. They believe she is innocent, that the killing of Volar was self-defense, and that the courts don’t fully understand the trauma of victims and what it can lead to. Volar’s father, on the other hand, wrote to the sentencing judge and implored him not to show Kizer any leniency. He saw the case differently. Resolving these opposing views of truth and justice is why courts exist in the first place.
I don’t believe the way Kizer’s case played out was fair enough. First, law enforcement failed Kizer when Volar was first arrested and allowed to be released to further abuse Kizer and others. There should be some accountability for that decision. Second, Kizer had a more-than-plausible case that she was innocent of first-degree intentional homicide under Wisconsin law. The prosecution had a plausible case that she was guilty of intentional homicide, but with the clear evidence of abuse, it seems that second-degree intentional homicide (based on at least some mitigation for the abuse) was the more appropriate charge. The prosecution should have amended the charge to second-degree intentional homicide.
But rather than doing this and allowing a jury to resolve the conflict – which itself would have been imperfect – the parties chose to resolve it through a bargain that was fundamentally untruthful. Whether you believe in her innocence because of the affirmative defense or not, Kizer acted intentionally in killing Volar. This was not recklessness.
Plea bargaining takes place in the shadow of the sentence that will or might be ultimately imposed. Here, because of the mandatory life sentence for first-degree intentional homicide under Wisconsin law and because of the prosecutors’ insistence on following through to trial with that charge despite clear evidence of abuse by Volar, Kizer was left with choices that made pleading guilty despite her belief in her innocence a reasonable one. This is not fair enough. If the prosecutors had charged second-degree intentional homicide, carrying no mandatory life sentence, I think the choices that Kizer would have faced would have still been difficult, but it would have indeed been fair enough. And if she had been found guilty at trial and sentenced to 11 years imprisonment, I believe that result would have been fair enough.
The ultimate plea transaction entered into may have made an efficient outcome for both sides. But it undermined the integrity of the court system. Unlike in Hunter Biden’s case, here, a question of Kizer’s genuine guilt is left lingering in the wake of her – and her supporters’ – untested protestations of innocence. As the First Circuit wisely found in Bednarski, "the public might well not understand or accept the fact that a defendant who denied his guilt was nonetheless placed in a position of pleading guilty and going to jail."
Prosecutors and the trial court ultimately agreed to a fiction: that Kizer’s actions in shooting Volar were something short of intentional. It may have been legally permissible. But as the Justice Manual says, “it is often preferable to have a jury resolve the factual and legal dispute between the government and the defendant, rather than have government attorneys encourage defendants to plead guilty under circumstances that the public might regard as questionable or unfair.” I believe that’s what happened here, and that entering the plea bargain was not the right thing to do.
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Steve and Doug’s Reaction:
We agree with Jonathan that the resolution of the Kizer case was not “fair enough.”
We do not purport to understand the details of Wisconsin law, but at a high level, the Kizer plea appears consistent with U.S. Supreme Court precedent concerning guilty pleas. See, e.g., Brady v. United States, 397 U.S. 742 (1970); Bordenkircher v. Hayes, 434 U.S. 357 (1978). Furthermore, the venerable Model Penal Code would accept conduct done intentionally (purposely) as satisfying a statutory standard of recklessly. See MPC §§ 2.02(5) & 1.13(11). Even if that is right (and assuming it matters), it doesn’t mean that the resolution in Kizer was “fair enough.”
While there may be many things to criticize about this case, the distortion brought by the mandatory minimum sentence of life in prison associated with first-degree intentional homicide tops the list. Reasonable minds can and do differ on the desirability of a system driven by guilty pleas, the role of the “trial tax,” and the wisdom of mandatory minimum sentencing laws generally. Here, however, there were – as Jonathan points out – plausible arguments on both sides of the affirmative defense claim. Resolving those arguments was too risky for both sides, so they reached a deal that no doubt left a bitter taste in the mouths of many participants and observers. That happens sometimes, and determining when it is so unpleasant as to produce a result that is not “fair enough” is a matter of perspective.
This case reminded us of a very short yes-no debate that we had more than a decade ago with the esteemed Bill Otis over the question, Should mandatory sentences be abolished? We took the “yes” position and included this language that seems tailor-made for this case:
When prosecutors threaten a severe mandatory penalty (or offer relief from one), the incentive to plead guilty can be overwhelming, even for those with viable defenses. Although usually seeking justice, prosecutors can lose perspective. … Who should make that [sentencing] decision – prosecutors whose sentencing judgments are usually off the record, or judges whose decisions are made in open court? Severe mandatory minimums greatly enhance prosecutorial power and largely remove the judge as a check on potential governmental excesses. Although constitutional, prosecutors neither need nor deserve such extra leverage.
Few dispute the virtues of a sentencing system built around guided judicial discretion with meaningful appellate review to police unreasonably lenient or harsh sentences. The debate over mandatory minimums is about when and how often prosecutors can trump the operation of such a system. No sentencing structure can always guarantee the indisputably “right” result. But we should strive for greater fairness and effectiveness through nuanced sentencing guidelines and appellate review. Mandatory minimums within such a system are a tool of prosecutorial power masquerading as an instrument of justice.