Much has been written that deals with the phony “War on Drugs” and the negative effects it has on society, particularly those lacking resources, or who are people of color. This piece is not about the “War on Drugs”, but this ridiculous “war” has actually driven the abuses of our criminal justice system that is my topic today. Human Rights Watch produced a report about how most defendants in federal drug cases are forced to plead guilty under the threat of the imposition of a mandatory sentence. I read an article in Huffington Post referencing this study and it immediately brought to mind two aspects of law enforcement and prosecution today that raise my ire.
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 represe,t drastic solutions to punishment needs, in order to appear as “tough” as possible. Wi,th 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.
“Only 3 percent of U.S. drug defendants in federal cases chose to go to trial instead of pleading guilty in 2012, according to a new report from Human Rights Watch.
The small number begins to make sense if you consider the consequences faced by drug defendants convicted in court, argues the report’s author, Jamie Fellner.
“Prosecutors can say, ‘Take these 10 years or, if you get a trial and are convicted, you’re going to look at life,’” said Fellner, an attorney who specializes in criminal justice issues at Human Rights Watch. “That’s a pretty amazing power that unfortunately they are more than willing to wield.”
The effect, she argues, is that prosecutors essentially “force” defendants to plead guilty.
Last year, drug defendants in federal cases who went to trial and lost were sentenced to more than three times as many years in prison as those who took a plea, according to the report’s analysis of data from the United States Sentencing Commission, a government agency.
And the majority of those who did go to trial — 89 percent of them — lost” Here.
In my opinion the premise that underlies the concept of the “plea bargain” is a faulty one. The justifications used by prosecutors invariably center around the heavy burden of cases they must “clear” and the lack of court resources available. Plea Bargaining is seen as a way of making due with an inadequately funded and staffed judiciary system. It simply doesn’t make sense that in a country that takes exceptional pride in its supposed Democracy and Justice under-funds one of the basic needs of a truly balanced justice system. Why do we have a court system that lacks the funds it needs to provide the right to a fair and speedy trial? How do we look askance at human rights violations in other countries, when in our own country human rights are denied to those who would seek a fair and speedy trial, because the country refuses to apply the resources needed to provide a fully operational court system?
In order for the “plea bargain” to be an effective tool for prosecutions by the government there has to be something behind the prosecution’s threat that will strike terror into the heart of even an innocent defendant and cause them agree to plead guilty to charges where they might not be guilty. In the ever increasing spate of “conspiracy” cases, the prosecution also needs leverage to get one of the presumed “conspirators” to turn on their companions. Conspiracy prosecutions have been around for a long time and have historically been used by the government deal with groups the powers that be consider noxious. Most laws that have expanded the reach of criminal conspiracy prosecutions, such as the RICO laws ,http://ricoact.com/, have been used by prosecutions to also attack political groups, corporate entities and even the Roman Catholic Church. Like many other laws that in my opinion demean our Constitution, the RICO laws were first signed into law in 1970, with the express purpose of dealing with organized crime, specifically drug dealers. While conspiracy prosecutions have been around for a far longer time and were used in our history to attack “radical” political groups and the nascent Labor Movement, RICO became conspiracy on steroids. It would be helpful here to see the definition of conspiracy:
“An agreement between two or more people to commit an illegal act, along with an intent to achieve the agreement’s goal. Most U.S. jurisdictions also require an overt act toward furthering the agreement. An overt act is a statutory requirement, not a constitutional one. See Whitfield v. United States, 453 U.S. 209 (2005). The illegal act is the conspiracy’s “target offense.” http://www.law.cornell.edu/wex/conspiracy
Today, conspiracy prosecutions in many jurisdictions don’t even require that the “conspired act” is committed, only that there was a “conspiracy” to commit it and that a step was taken to actually further the plan. American history has shown that conspiracy prosecutions have turned upon a group of people talking about committing a violent act and one of them purchasing something that could have advanced the plan. One of the most famous conspiracy prosecutions in our history ended with the executions of Julius and Ethel Rosenberg, during the “Cold War”. Ethel the wife was executed even though there was little evidence she was a party to the alleged conspiracy. http://en.wikipedia.org/wiki/Julius_and_Ethel_Rosenberg
Back to my main point though, since conspiracy charges are only one of the “tools” used by prosecutors to obtain “plea bargains.” By far the most effective “club” wielded by prosecutors today is Mandatory Minimum Sentencing.
“The percentage of defendants in 2012 who fought their charges is likely an all-time low. In 1980, the first year for which the report reviewed the relevant data, the percentage of federal drug defendants who pleaded guilty was slightly more than 60 percent, and it has risen steadily since then.
The advent of mandatory-minimum sentencing laws in the mid-80s is largely responsible for the steady increase in guilty pleas, according to Fellner. Such laws required judges to impose harsh, predetermined sentences on people convicted of the distribution and, in some circumstances, possession of illicit drugs, while giving prosecutors the ability to offer defendants smaller sentences as part of a deal.
“If you can get someone to acknowledge guilt without the burden and expense of a trial, without having to marshal witnesses and line up witnesses, and without risking an acquittal, why not?” said Fellner. “You don’t have the cost of a trial, it doesn’t take the time and resources, and it increases the notches on your belt of how many convictions you’ve gotten.”
But in reality, the government lacks the resources needed to try everyone who is charged with a drug offense, said Steven Jansen, the vice president and chief operating officer of the Association of Prosecuting Attorneys, a professional group based in Washington.
“Justice would almost stand still if we took the majority of our cases to trial,” he said.” http://www.huffingtonpost.com/2013/12/05/drug-defendants-plead-guilty_n_4387290.html
The United States has the highest incarceration rate in the entire world. You can follow this link to see the list by country: http://www.prisonstudies.org/info/worldbrief/wpb_stats.php?area=all&category=wb_poprate
The evidence clearly shows that this is due to the failed “War on Drugs” and the burden of those laws fall most heavily on the poor and people of color. In my view this is a sorry state of affairs for a country that we used to take pride in as the bastion of freedom. 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. However, underlying all of this and driving this system is in my opinion one major factor.
In our country we seem to want justice on the cheap. Historically, our court systems have been underfunded and understaffed. We as a nation pride ourselves on our justice, yet we consistently refuse to fund the very basis of our Justice System, our Courts. I don’t have to present any evidence for the reader to understand that the idea of obtaining a fair and speedy trial doesn’t represent the reality in America. This is true whether in criminal or in civil cases. Why is this so?
My personal belief is that our courts are undermanned and underfunded because it suits the needs of those in power. Those with vast wealth in our country rarely are brought to trial and when they are, somehow the system works quicker on their behalf. Many Americans can’t even imagine that they would ever be criminally prosecuted and so pay little attention to the justice system, except when a sensational trial drives their attention. Therefore no politician ever got elected campaigning for more money for the courts. This is not some secret that I’ve discovered, but as you can see from the quotes above the delays in our justice system are not only spoken of as facts, but are used for justifications to shortcut its workings. Obviously, my solution to this is to put the money necessary into our courts. Beyond that though I believe it is time to end the insane “War on Drugs”, which is really a “War” on the poor and the people of color. I believe that we should get rid of Mandatory Minimum Sentencing because it is not a deterrent and is an abomination of justice. I believe RICO should either be reformed or repealed as being beyond the intent of our Founding Fathers in the Constitution. I further believe that the offices of those who would be our prosecutors should be removed as “stepping stones” for higher political office. Prosecution can be a noble profession, but to be so must attract those of nobler intent, which in my opinion has become a rarity today.
August 6, 2016 at 10:10 am
Excellent and on point. When we tend to stereotype the good gets lost with the bad.
Do I blame the people doing there best at civil anarchy? No, the time is coming for the abused to step forward. Do I like the tactics of just shooting? No.
I think a lot of folks are tired of the abuses they have suffered in silence long enough.
Do I think some police over react, yes, and that is why we are in the situation of civil anarchy.
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August 7, 2016 at 2:31 am
I think there at least two more points that undermine our legal system.
The first relates to consumer contracts that require arbitration, preventing consumers from ever reaching the courts. The claim is that arbitration offers consumers a low cost alternative to expensive litigation. But if arbitration offered a genuinely desirable alternative then why not let consumers choose arbitration rather then require it? I think the answer is obvious. Arbitration holds great advantage for corporations – not consumers.
Perhaps a more important change in our legal system is the decision by DOJ to rarely prosecute corporations or their officers for white collar crime.
There was a time when DOJ did in fact file criminal charges against both corporations and officers.
I suspect but do not know that DOJ changed its philosophy regarding criminal prosecution of corporations after evaluating the results related to failure of firms like Arthur Andersen.
Apparently DOJ came to believe that financial penalties obtained through civil suits was more effective in gaining compliance than criminal prosecution.
I personally believe that view needs to be reevaluated. That approach, in effect, makes civil financial penalties a cost of doing business which may decrease rather than enhance compliance.
In effect, the policy gives corporations license to skirt the law in as many ways as their legal counsel can dream up, secure in the knowledge that when caught they will only have to give up profits from their illegal activities.
How much deterrence could we expect if we told bank robbers that when caught they would have to give back only the funds from the most recent bank robbery?
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August 7, 2016 at 9:45 am
Russell,
In going for change we can describe tactics as productive or counter-productive. Hurtful or humane. Unfortunately, our corporate media would rather deal with the wrongful tactics,rather than the causes of such public angst.
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August 7, 2016 at 9:58 am
BFM,
Both your points need to be included in discussing the present failures of our legal system. However, it must be noted that both arbitration and the refusal to criminally charge corporate misdeeds stem from and are justified by, an underfunded and overworked judicial system.
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August 8, 2016 at 11:06 am
BFM: Well, I say they not only have to give back the funds from the most recent bank robbery, but they have to sincerely promise the American Public they won’t rob another bank, and if they do and get caught, then shame on them, and they have to give back that money too! Plus another more sincere apology at least 30 minutes longer than the previous sincere apology, and this time with name actors and a sincerely somber and heartfelt musical score, because how else are we supposed to believe them if Morgan Freeman isn’t involved?
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August 8, 2016 at 12:48 pm
@MM:
Now I am confused. I know what I said but I am not sure what you said.
It takes money to rob banks. Do the robbers have to give back all the money from the bank robbery or only the profits from the bank robbery?
This is an important question. Bank robbers are innovators and the best identify new vulnerabilities. In that capacity they actually save money.
It is important that we not shut down this socially significant channel of research for banking safety.
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August 8, 2016 at 1:01 pm
BFM: Good points; and now that you mention it, we probably shouldn’t be too hasty to punish the BIGGEST bank robbers because they are probably the BEST at identifying vulnerabilities. So now I think that perhaps what we want is some kind of scaled fine for bank robbing; after expenses. If it is a petty robbery netting less than $250K than those guys go to jail (it isn’t like you are jailing a political supporter after all) and if it is bigger than that, well that was a big vulnerability, so maybe a 50% fine for robberies up to $10 million, and 25% for robberies over $10 million. But the apologies are mandatory at all levels, have some consideration for public sensibilities.
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August 8, 2016 at 1:13 pm
@MM: ” But the apologies are mandatory at all levels, have some consideration for public sensibilities.”
Well said, but I think there should at least be the possibility of community serves – after all getting caught is serious business.
Perhaps they could give presentations at schools explaining the free market and the importance of keeping the economy safe for innovators.
Who knows, the brightest lights of the next generation of innovators might be listening.
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August 8, 2016 at 2:35 pm
BFM: I find no fault with requiring such presentations, but as busy innovators, perhaps we should allow them to send an employee to make a more professional presentation. I mean, what if their presentation interferes with a planning meeting on robbing a bank? That could delay a robbing by days, depending on travel, and time is money.
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August 8, 2016 at 2:42 pm
BFM: I’m sorry, I meant “delay the exposure of a bank’s security flaws” by days. Phraseology is important.
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August 8, 2016 at 3:28 pm
@MM:
How true. It is so important to make these things understandable to the little people.
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August 9, 2016 at 12:04 pm
Do you think they are following you?
http://www.nytimes.com/2016/08/08/nyregion/jury-trials-vanish-and-justice-is-served-behind-closed-doors.html?rref=collection%2Ftimestopic%2FCourts%20and%20the%20Judiciary&action=click&contentCollection=timestopics®ion=stream&module=stream_unit&version=latest&contentPlacement=1&pgtype=collection
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August 10, 2016 at 3:28 pm
“Legal experts attribute the decline primarily to the advent of the congressional sentencing guidelines and the increased use of mandatory minimum sentences, which transferred power to prosecutors, and discouraged defendants from going to trial, where, if convicted, they might face harsher sentences. “This is what jury trials were supposed to be a check against — the potential abuse of the use of prosecutorial power,” said Frederick P. Hafetz, a defense lawyer and a former chief of the criminal division of the United States attorney’s office in Manhattan, who is researching the issue of declining trials.”
BFM,
The article pinpoints and parallels exactly what I’m trying to say. I believe that the MMS laws passed by Congress were intended to bring exactly this result and the criminalization of people of color was the intent.
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