It is often said of our country in glowing terms that “we are a nation of law”. This is connoted to mean that the country dispenses justice fairly. From my perspective that is but a convenient lie we tell ourselves, equivalent to some religious fanatics believing that God wants them to kill people for His greater glory. The reality is that our justice system is broken, perhaps beyond fixing. For the most part our system of justice works to benefit the powerful at the expense of the rest of our citizenry. The proof of this is so apparent that when writing about the failures of our legal system, choosing what to focus on is an overwhelming task, given the proven injustices throughout our American Justice System at the Federal and State levels. As I have in the past, I’m going to focus on “the Prosecution” aspect of the system at the Federal level because I believe much of the injustices perpetrated in the name of dispensing justice come from Federal Prosecutors and their dealing with issues of “Homeland Security”, “Organized Crime” and most especially “The War on Drugs”.

As a companion piece I am publishing “Cheap Justice, Bad Law = Broken System”In it I focused on two aspects of the Federal System where I think that the most abuse of citizens’ rights take place: “The first is the process of plea bargaining, which I believe makes a mockery of our Criminal Justice System. The second is the concept of mandatory minimum sentencing which in my opinion leads inevitably to miscarriages of what we would like to call justice. The idea of negotiation, bargaining if you will, is that each of the two sides has the ability to provide enough of value to be able to establish a mutually beneficial contract. Clearly though when it comes to a Prosecutor bargaining with a defendant there is, except in the case of the wealthy/powerful, an unequal negotiation. The Prosecution has the authority and resources of the State backing it up. Most defendants and indeed most people in prisons, have little resources. In the public’s (thus jury’s) mind, most defendants are really guilty until proven innocent, despite the “presumption of innocence” that is supposedly a hallmark of our legal system.  Adding immeasurably to the Prosecution’s resources are “Mandatory Minimum” sentences (MMS). They were instituted by legislators who wanted to appear “tough on crime” and so represent drastic solutions to punishment needs, in order to appear as “tough” as possible. With the trump card of MMS prosecutors are in a position to threaten a defendant to “cop a plea” to avoid a more draconian prison sentence. The Human Rights Watch study shows how these two procedures have become a feature of American Criminal Justice that in my opinion makes a mockery of it.” As I’ve stated many times I am not a lawyer, but I have gone to law school and did write for a legal blog, yet for the most part my knowledge of the system is from the outside. I came across an article at OpEdNews which was written by Barry Sussman who is a lawyer whose expertise is in Federal Criminal Procedure and Prosecutions. It’s title: “The Pathology of Prosecution”. Sussman writes:

“The ongoing criminalization of hitherto innocent acts has resulted in such an explosion of criminalization that no one knows how many federal crimes actually exist. In the past, the Department of Justice (DOJ) and the American Bar Association (ABA) separately attempted to address this absurdity by preparing a complete list of federal offenses. Neither the DOJ nor the ABA succeeded. No other governmental or private organization has subsequently attempted to resolve this matter. The result is that no comprehensive, easily accessible list of federal crimes exists today. Recent events in the American criminal justice community are finally destroying the last vestiges of the misguided notion that prosecutors, as well as othercogs in the wheel of the prison-industrial complex, function for the benefit and protection of the populace. This selfish and self-centered enterprise is well along in the process of being exposed as nothing more than a racket for pathological and often sociopathic individuals to make careers out of the bodies of their victims.”

As I read the above I was struck by how closely what Sussman describes matches my own thoughts and writings. The difference is that while I’m but an informed layman, he is a practitioner whose career is to deal with these issues daily. As I wrote on Friday paralleling Sussman: “This degradation of our Criminal Justice System has come about because of a confluence of factors that can be summed up as political fear mongering in search of expanded power. Part of that quest for power is that our prosecutorial positions are stepping stones towards higher office and thus open to abuse by those with higher aspirations. This is particularly true if one can get cases that show the prosecutor as being “tough on crime”, Finally too, as with most things in this country, it comes down to the profit to be made by the privatization of the prison system and the need to ensure that our prisons meet their bed count quota.”

Interestingly Barry Sussman goes much further than I in characterizing the denizens of the offices of Federal Prosecutors, by calling them “pathological” and often “sociopathic”.  Yet I must agree with his “diagnosis”. To me the sociopathy of many Federal Prosecutors is currently illustrated by two men who used (abused?) the office of United States Attorney and in doing so put them in a position to run for President. One is currently a sitting Governor Chris Christie and the other the self styled “hero” of 9/11 former New York City Mayor  Rudy Giuliani of whom I wrote at Jonathan Turley’s blog:  Rudy Giuliani parlayed his headline grabbing antics as a Federal Prosecutor into great wealth and a political career that made him a Presidential candidate. Yet most of the “convictions” that brought him fame and media attention were overturned at the appellate level. His grandstanding, such as the arrest of a young stockbroker, accompanied by TV cameras, ultimately resulted in the man’s acquittal, yet the impression of Giuliani as a “fighter for justice” remained in the people’s minds. America’s Broken Criminal Justice System” If you follow that link to the blog I wrote for RIL in 2013 you will also see that the malefaction of US Attorney’s and their use of the modern “tricks of the trade” has been an ongoing concern of mine:

Having voted for Barack Obama,  my disenchantment with his Presidency has been in large part caused by my naively thinking I was voting for an expert in Constitutional Law, who would bring the perspective to it of greats like Earl Warren, William O. Douglas and Hugo Black. Instead he appointed Eric Holder of whom I wrote: About one year into Barack Obama’s first term as President I began calling the White House demanding that Attorney General Eric Holder should be fired. I was disturbed by the lack of prosecutions and by the trend towards stricter enforcement of the Drug Laws. Clearly this was not the change I envisioned from a Constitutional Law professor, or his Attorney General. I guess my support in the election wasn’t important enough to get The President to hear my plea to rid himself and us, of both Holder and Geithner. Here we are now more than four years later and both of these bozos are still on the job [they have since left for more lucrative pastures] and doing harm to our Constitution and our economy. With the Associated Press eavesdropping scandal we have just the latest contretemps committed by the Justice Department and its hapless leader. Having lived through Attorney General’s John Mitchell and Ed Meese, I understand full well the importance of the position and how if it is filled with the wrong man mischief will arise. Eric Holder is in the tradition of both these men since he too seems nonplussed when it comes to upholding the constitution. Barry Sussman also shares my dim view of our Attorney General and his new found passion for reform:

“Attorney General Eric Holder, a career prosecutor and lifelong proponent of enhanced and expanded penalties for even the most trivial of federal offenses, has recently become a leading advocate of what the media politely refers to as “sentencing reform.” Meaningful reform would look very different from Holder’s modest and opportunistic proposals, but the system has become so pernicious that even meager relief is being hailed as “substantial.” While Americans are typically reluctant to admit that their self-proclaimed “greatest (legal) system in the world” continues to incarcerate more of its citizens than any nation in the history of mankind, a variety of factors have caused Holder to now position himself as a criminal justice reformer. Ever the opportunist, it is likely nothing more than a realization that the prevailing political winds are currently blowing a direction supporting reform.”

What Sussman goes on to show is that even Holder’s very modest proposals for reform are being opposed by his underlings the U.S. Attorneys.

“The actions of Holder’s underlings, however, offer a greater insight into America’s pathology of prosecution and obsession with punishment. Transcending mere opportunism, the assistant U.S. attorneys (AUSA’s) and others employed as foot soldiers in the federal criminal justice system , display a rigidity and dogmatic certitude which prevents them from falling in line with their boss’ recent shift away from strident punishment. Their intransigence also reveals that it is they, and not the people they allegedly serve, who figure foremost in their professional decision making. Recent developments reveal their claims of working to serve and protect the public to be utterly nonsensical. In February of 2014, as Holder’s push to moderately temper parts of America’s draconian federal sentencing scheme began to take shape, the National Association of U.S. Attorneys (NAAUSA) openly criticized their boss’ initiatives.

The National Association of Assistant United States Attorneys, an organization representing about 1,300 of the 5,600 federal prosecutors, sent a letter to Attorney General Eric Holder objecting to his endorsement of the Smarter Sentencing Act, which would lessen certain drug penalties. The bipartisan Senate bill would lighten prison sentences for people convicted of nonviolent drug offenses. The letter, signed by NAAUSA president and AUSA Robert Gay Guthrie, argues that the U.S. should resist calls to reform its mandatory minimum laws, which require judges to sentence certain drug defendants to lengthy prison terms, even if the judge considers those sentences excessive. In the letter, Guthrie insists that the “merits of mandatory minimums are abundantly clear,” insisting that they reach “only to the most serious of crimes” and “target the most serious criminals.”

Rather than keep us safe the reforms these attorney’s decry would represent diminishing  the power that has allowed them to get guilty pleas in 97% of their cases and use these convictions to further their political careers. As Barry Sussman continues:

“The actions and beliefs of these prosecutors reveal an arrogant disdain for very public they claim to serve. “Public protection” is a common refrain for federal prosecutors, but for them the public is merely a vehicle by which to advance up the judicial-corporate ladder. The “win at any cost” mentality frequently seen in federal prosecutors may be employed for the purported benefit of the public, but in actuality has long served as an effective method of career advancement. And make no mistake about it- for federal prosecutors, wins are measured in years. The longer the sentence, the more significant the “victory.”

The ongoing war being waged by federal prosecutors is, in actuality, the very antithesis of public protection. In fact, it is a war being waged against the public. And the public is waking up to the fact that prisons are being packed with non-violent offenders whose imprisonment serves no recognized societal goal. The reticence of federal prosecutors to heed their boss’ directions and acquiesce to the will of the public speaks volumes about whose interests are truly being served.

Hypocrisy has emerged as another significant element in the pathology of prosecution. While expecting targets of their prosecutorial efforts to follow regulations that may not even be known to exist, prosecutors routinely ignore inconvenient parts of the law. Much of this stems from a pathological belief that the ends justify the means.”

Barry Sussman even details the experiences of a disaffected former U.S. Attorney who has written a book about her term:

Former AUSA Sidney Powell has written about her experience as a federal prosecutor and the picture she paints is highly disturbing. In her book Licensed to Lie, she details the injustices and inhumanities perpetrated by self-aggrandizing federal prosecutors. Powell explains how they truly had a license to lie and to destroy innocent lives, without having conscience enough to even acknowledge the suffering they caused. The suffering endured by the many innocent defendants described by Powell, and the complete lack of integrity, fair play and justice by power-driven federal prosecutors, leave Powell without faith in the American legal system. What she describes is anything but a forum where justice is expected to be attained.

Prosecutors and their acolytes continue to argue for complete and absolute immunity from civil liability. They essentially claim that the ability to ignore the law is critical to their job performance. The argument they advance is that self-regulation and professional sanctions from state bar associations are sufficient to deter prosecutorial misconduct. Yet there is scant evidence that state bar associations are doing anything at all to reign in rogue prosecutors. The record reveals that those who misbehave are rarely, if ever, professionally disciplined.”

The problem with prosecution in America is not simply one that exists on a Federal Level. It infects all levels of our justice system. Then too, a majority of prosecutors move on to become Judges and remain of the mindset they held as prosecuting attorneys. However, the reality is there exists a symbiotic relationship between attorneys in the profession, no matter which side they are on. Law Schools traditionally teach their students to be able to aggressively argue both sides of particular cases. While there is wisdom in this teaching method, its flip side is that it also presents an equivocal view of what is truly justice. The “Win” and the “Loss” replace the true justice of the matter. Justice is never about “right” or “wrong” and that is our legal system. This is not to say that all those involved in the system are sociopaths and narcissists.  There are many lawyers and judges that try to actually dispense justice. however, one could say the nature of the system has been degraded by “War on Drugs”, the phony war on “Organized Crime” and the loss of civil liberties foisted upon the country by the “War on Terrorism” following 9/11.  One could say that this degradation is a recent development, but realistically this has been a problem as old as our country. Our legal system from its beginnings has been a steppingstone to wealth and power.  Those who would ascend those “steps” cater to those whose status they aspire to and disdain the rest of us.

Scales of Justice

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