The effects of unchecked criminalization: Teen charged with felony for science experiment

By Sesali Bowen | Published: May 1, 2013

When we talk about the criminalization of communities and people of color, especially African Americans and Latinos in America, we often talk about the criminal justice system in America that disproportionately targets those communities.Schools are often the major accomplices in making this system run with the school to prison pipeline. Nothing exemplifies this more than what is happening to 16 year old Kiera Wilmot in Florida. According to the Miami New Times,

 ”7 a.m. on Monday, the 16 year-old mixed some common household chemicals in a small 8 oz water bottle on the grounds of Bartow High School in Bartow, Florida. The reaction caused a small explosion that caused the top to pop up and produced some smoke. No one was hurt and no damage was caused.
…Wilmot told police that she was merely conducting a science experiment. Though her teachers knew nothing of the specific project, her principal seems to agree.
‘She made a bad choice. Honestly, I don’t think she meant to ever hurt anyone,’ principal Ron Pritchard told the station. ‘She wanted to see what would happen [when the chemicals mixed] and was shocked by what it did. Her mother is shocked, too.’“

This sounds like a harmless instance of experimentation gone wrong. No harm, no foul right? Even the principle thinks it was simply a poor decision. A week of detention, maybe even suspension, was in order no doubt. So why did it go down like this?

“After the explosion Wilmot was taken into custody by a school resources officer and charged with possession/discharge of a weapon on school grounds and discharging a destructive device. She will be tried as an adult.
She was then taken to a juvenile assessment center. She was also expelled from school and will be forced to complete her diploma through an expulsion program.”

The school released the following statement:

“Anytime a student makes a bad choice it is disappointing to us. Unfortunately, the incident that occurred at Bartow High School yesterday was a serious breach of conduct. In order to maintain a safe and orderly learning environment, we simply must uphold our code of conduct rules. We urge our parents to join us in conveying the message that there are consequences to actions. We will not compromise the safety and security of our students and staff.”

I call bullshit. This is not about the “safety and security” of students and staff at Bartow High School. This was about setting an example, at the expense of Wilmot, and sending a message that even (mis)perceived threats will be dealt with swiftly and harshly. The unfortunate truth is that in America, those perceptions are heavily tied up in notions of race, class, and gender.

Those perceptions may have helped them come to the conclusion that Wilmot’s concoction was indeed a weapon. The code of conduct clearly states that “intention” is a factor in whether or not there has been a breach of that specific rule. But somehow the principal managed to defend the girls intentions but still expel and have her arrested.

Is the perceived threat to the safety of her classmates and teachers also the reason why Wilmot is being tried as an adult with a felony? A student with good grades and no behavioral problems to speak of should be followed with a felony because she was curious about a chemical reaction? She has been ushered into the criminal justice system with this decision. Access to employment, education, housing, etc. will all be limited to Wilmot with a felony on her record.

As a graduate of a Chicago Public School I am very familiar with teachers not being interested in nurturing the minds of students. Instead, they create a mindless generation that simply does what they’re told, no questions asked, all in the interest of maintaining an orderly “classroom”. Sending students to prisons is the solution for those who can’t be “controlled”. I have witnessed the policing that happens when school staff and administration fears its students, of color. Let me be clear, zero tolerance policies are not about keeping schools safe. They exist to keep school administrators from being held accountable for the environment they create in their institution and making contextual judgement calls.

Police Can Record Video Inside Your Home Without A Warrant, Appeals Court Says

By Nicole Flatow on Dec 3, 2012 
ThinkProgress

Earlier this year, the U.S. Supreme Court provided some comfort to those fearing the seemingly limitless potential of new technologies to enable government privacy invasion. In holding that police could not attach a GPS device to a car and track it for 30 days without a warrant, the court said, “At bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’”

But don’t get too comfortable. A federal appeals court ruled last week that police can secretly videotape a suspect’s home without a warrant. In a case about the suspected sale of bald eagle feathers and pelts – a misdemeanor crime — the U.S. Court of Appeals for the Ninth Circuit held that undercover police admitted into the suspect’s home as interested buyers of pelts did not violate the Fourth Amendment when they secretly videotaped the suspect’s home:

We are persuaded that it is not “constitutionally relevant” whether an informant utilizes an audio-video device, rather than merely an audio recording device, to record activities occurring inside a home, into which the informer has been invited. When Wahchumwah invited Agent Romero into his home, he forfeited his expectation of privacy as to those areas that were “knowingly expose[d] to” Agent Romero. Wahchumwah cannot reasonably argue that the recording violates his legitimate privacy interests when it reveals no more than what was already visible to the agent.

The decision doesn’t entirely break new ground. At least one other federal appeals court has upheld the use of video recordings inside the home, and just last month, a lower federal court reached a similar conclusion.

But the case raises the same sorts of concerns that several concurring justices emphasized in the U.S. Supreme Court’s decision last term in United States v. Jones: What scope of surveillance will not violate our present understanding of a “reasonable expectation of privacy”? At what point are we, as Justice Sonia Sotomayor cautions in Jones, “making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track, may ‘alter the relationship between citizen and government in a way that is inimical to democratic society’”? Electronic Frontier Foundation staff attorney Hanni Fakhoury elaborates on this concern:

[T]he sad truth is that as technology continues to advance, surveillance becomes “voluntary” only by virtue of the fact we live in a modern society where technology is becoming cheaper, easier and more invasive. The Wahchumwah case exemplifies this: on suspicion of nothing more than the benign misdemeanor of selling eagle feathers, the government got to intrude inside the home and record every intimate detail it could: books on a shelf, letters on a coffee table, pictures on a wall. And we’re entering an age where criminal suspicion is no longer even necessary. Whether you’re calling a friend’s stolen cell phone and landing on the NYPD massive database of call logs, driving into one of the increasing number of cities using licenseplatescanners to record who comes in or out, or walking somewhere close to hovering drones, innocent people are running the risk of having their personal details stored in criminal databases for years to come.

The fractured majority in United States v. Jones didn’t provide much guidance about where the court will draw future lines on surveillance, relying instead upon the fact that the Jones case involved a physical trespass — a type of privacy violation of particular constitutional concern. Of course, the Ninth Circuit case involved a physical intrusion in the place subject to the greatest Fourth Amendment protection – the home. Whether it became something other than a trespass — and sufficient grounds to authorize invasive surveillance – because the suspect unknowingly admitted the undercover officer into his home is another question that may be for ripe for Supreme Court consideration.

‘Anonymous’ hackers target The Geo Group--a private prison contractor

By Agence France-Presse

Friday, February 24, 2012

Hacker group Anonymous on Friday vandalized the website of a major US prison contractor in the latest salvo in an anti-police campaign.

Anonymous subgroup “Antisec” took credit for replacing The Geo Group website home page with a rap song dedicated in part to convicted murderer Mumia Abu-Jamal and a message condemning prisons and policing in the United States.

Mumia Abu-Jamal, whose birth name is Wesley Cook, is a former Black Panther and radio journalist serving a life sentence for the 1981 shooting death of a police officer in Philadelphia.

Activists around the world have rallied in support of the former Death Row inmate, who they contend fell prey to racism in the justice system.

“As part of our ongoing efforts to dismantle the prison industrial complex, we attacked one of the largest private prison corporations in the US - Geo Group,” Anonymous said in a message posted at the Geo Group website.

“We are acting in solidarity with all those who have ever been wrongfully profiled, arrested, brutalized, incarcerated, and have had all dignity and humanity stripped from them as they are cast into the gulags of America.” ~ Anonymous

The Geo Group manages prisons, mental health facilities, or detention centers in Australia, Britain, South Africa, and North America. The corporation reported $77.5 million in net profit on $1.6 billion in revenue last year.

Anonymous took credit Thursday for an online raid of the Los Angeles Police Canine Association and the posting of personal and potentially embarrassing information.

“Over the past three weeks, we in the cabin have been targeting law enforcement sites across the United States,” hackers said in a message atop a file at Pastebin.com containing officers’ addresses, phone numbers and more.

“Be it for injustices they have allowed through ignorance or naivety, taken part in, or to point out the fact that their insecurity failed to protect the safety of those they took an oath to serve,” the group said of its motives.

The hackers claimed to have gotten the addresses of more than 1,000 officers along with information from police warrants and court summonses as well as about informants in their weeks-long series of attacks on police computers.

Anonymous law enforcement targets in recent weeks have included the websites of the Central Intelligence Agency and the Federal Bureau of Investigation.

Nice job, fellas!--jef

The Crime of Punishment

The late Bill Stuntz was America’s leading thinker on criminal justice—and its hardest to categorize.
Lincoln Caplan

The Collapse of American Criminal Justice 

By William Stuntz • Harvard University Press • 2011 • 408 pages

Crime began to plummet in the United States more than 15 years ago, defying all predictions. It did so for nearly a decade. It happened in every part of the country and in every category of crime. While the rate of decline has leveled off in recent years, to many this social achievement has meant that the country need not worry about crime anymore: The problem has been solved. That view is wrong. In reality, the problem simply exists in two places most Americans (and the media) don’t often bother to look: in crime-ridden sections of cities where minorities live, and in the overcrowded prison system that gives America the world’s highest rate of incarceration. The good news masks an ever-worsening tragedy in criminal justice.

The black homicide rate across the nation is six times that of the white rate. Chicago’s Washington Square neighborhood is poor and close to 100 percent black. The city’s Hyde Park neighborhood is affluent and mostly white. The homicide rate in the first is 26 times that of the second.

The most compelling explanation for the different crime patterns for blacks and whites is the effect of the criminal justice system’s breakdown on poor young black men, who have continued to commit crimes at a high rate, including violent ones, especially against blacks, and who regard the system as dramatically unfair and unworthy of their respect. The rate of imprisonment among white men is the highest it has been in American history, yet the rate is seven times higher among black men.

America’s prison system is now studied largely because of its failure. The prison population is unsustainably high—petty offenders are locked away with hard cases, overcrowding makes conditions dangerous and unhealthy, and financial costs to states are through the roof. The last time the country significantly reduced them, however, in the 1960s and early 1970s, the rate of crime skyrocketed. Neither option is acceptable. So what do we do?

In his posthumously published book, The Collapse of American Criminal Justice, William Stuntz argues that reform today should involve putting more control over decisions about what and who should be punished—and for how long—in the hands of neighborhoods most hurt by crime and decimated by punishment. It should, he writes, involve many more cops on the street and many fewer convicts in prison.

But the book is less a blueprint for how to make things right than an explanation of what went wrong over the past century. Its value comes from seeing American criminal justice whole, in an elaborate analysis of a complex system, and challenging the theories of retribution and deterrence that lead to an emphasis on punishment and that have dominated thinking about the field for the past generation.

“Today,” Stuntz explains, “our cities are considerably more violent than before the great crime wave of the twentieth century’s second half, yet the nation’s imprisonment rate is quintuple the rate before that crime wave began. If punishment deters crime, we seem to be getting much less deterrent bang for the imprisonment buck than we once did. Add it all up, and the picture is quite different than the conventional wisdom allows.”

Stuntz’s thesis is that the misrule of politics has replaced the rule of law, with a ratchet of ever-expanding criminal laws giving boundless discretion to police and prosecutors, leading to a system that wrongly punishes too many poor young black men. When the law gives that much discretion, he writes, it stops functioning as law and instead becomes an assertion of power. The recent decline in crime is less a sign of success than of pathology. The encouraging numbers are misleading. They conceal devastating failure.

William Stuntz was one of the most influential and revered legal scholars of his generation, by acclamation the country’s leading thinker about criminal justice. His 25 years as a scholar, first as a law professor at the University of Virginia, then at Harvard, began when crime was a highly politicized issue and ended (tragically early—he died of cancer at the age of 52 in March) when crime had seemingly ceased to be an issue at all.

He developed an original, sweeping, and brilliant understanding of his field, which he sought to synthesize in this work. Three highly respected legal scholars to whom his book is dedicated—Carol Steiker and Michael Klarman of Harvard Law School and Daniel Richman of Columbia Law School—shepherded the essentially finished volume through production and into print after his death. While he co-authored a shelf full of respected textbooks about criminal law and criminal procedure, this is his only book for a general readership. It is his masterwork. The book is written in direct, energetic, and forceful prose, without stinting on nuance. It is a form of purposeful history, with close analyses of Supreme Court cases and doctrine; crime data by race, class, and geography; the workings of American politics at the national, state, and local levels; the interplay of legal, political, economic, and social forces; and attention to seminal documents of law and governance, especially the Constitution and its Bill of Rights.

The Collapse of American Criminal Justice is at once a far-reaching indictment and a vision tinged with hope. Stuntz was concerned with how to make sure that the criminal justice system charges and convicts those who deserve punishment while reducing the share of people caught in it who are innocent. He was convinced that “criminal punishment is both too severe and too frequent” and that “legal condemnation is a necessary but terrible thing—to be used sparingly, not promiscuously.” His biggest idea is that criminal justice can only be understood—by non-experts as well as experts—through a grasp of the interactions among its major elements. By showing that the division between criminal law (the elements of crime the government must prove to convict a defendant) and criminal procedure (the steps a police officer must follow to interrogate a suspect) that is respected by most scholars is in fact artificial and misleading, he demonstrated the benefits of approaching the field as a whole.

The history of criminal procedure, he showed, was “not really about procedure at all but about substantive issues, about what conduct the government should and should not be able to punish.” The most important change in this area came in Miranda v. Arizona, the landmark 1966 ruling requiring police, under the Constitution’s guarantee against self-incrimination, to give suspects taken into custody warnings about their right to remain silent and to call a lawyer, because that intimidating situation is likely to make a suspect feel he must talk. The purpose of Miranda was to give every defendant the opportunity to protect himself in the criminal justice system, not just wealthy suspects with access to skilled lawyers who could help make a case that a confession was coerced and therefore involuntary.

But the effect of Miranda was the opposite, Stuntz contended: The new rules gave suspects who could afford a skilled lawyer a “right to avoid police questioning altogether.” That was about one-fourth of criminal suspects. As for the other three-quarters, the warnings afforded few of them protection, because they didn’t understand what the warnings meant or, if they did, had no access to anyone who could enforce them. As long as the police could show they gave the warnings to the other three-quarters, they easily induced most suspects to waive their rights. Stuntz’s criticism underscored that, without provision of criminal defense lawyers for the poor, Miranda had much less beneficial impact than it promised.

Stuntz was a registered Republican and considered himself a conservative, and his reputation as such was buttressed by some truly conservative positions (for instance, he favored forms of profiling after the September 11 attacks). But it was more important to Stuntz that he appeal to both liberals and conservatives than that he be identified as either. The distinctiveness of his outlook was reinforced by his keenness to make his evangelical Christian faith part of his identity as a scholar. His best-known article about the role of Christian ideas in law suggests that Christianity’s most significant lesson in the face of the “arrogance” of contemporary legal theory is the faith’s “humility” about how hard it is to find definite answers to fundamental questions. His humility sometimes gave his writing the tone of an elegy.

Stuntz writes, “Discretion and discrimination travel together.” The percentage of adults who are black, white, and Latino using illegal drugs is roughly the same (10 percent, 9 percent, and 8 percent, respectively), but blacks are three times more likely than Latinos to do prison time for drug crimes and nine times more likely than whites. Why? The misrule of politics, according to Stuntz. Specifically, the misrule results from suburban voters in counties having a lot of say in who gets elected as prosecutors in the urban areas where serious crime is concentrated. As Stuntz writes, prosecutors “are usually elected at the county level” and “counties that include major cities have a much higher percentage of suburban voters than in the past.” Think here, for example, of Fulton County, Georgia, or of Wayne County, Michigan, both so much larger than Atlanta and Detroit, respectively, that they even include some rural stretches. In other words, it is voters for whom crime is largely an abstract problem who exercise sway, while residents for whom the problem is real have less power.

The disappearance of the jury trial symbolizes this shift. Almost all felony criminal convictions today—96 percent—come from guilty pleas obtained by prosecutors elected with the support of suburban voters, not from verdicts reached by juries drawn from residents in areas where crime is concentrated. The system, in Stuntz’s words, has become an “arbitrary, discriminatory, and punitive beast,” which is undemocratic in vesting decisions about punishment in those who aren’t part of the community where those being punished live. Stuntz’s main remedies for this include putting more cops on the street, making more lawyers available to represent criminal defendants, letting local rules about sentencing prevail, and shifting responsibility between local and state governments for who pays for local police and state prisons.

More cops would mean fewer prisoners and more robust local democracy. More lawyers for criminal defendants would mean better-prepared cases, fewer coerced pleas, and more reliable outcomes. Letting local rules about sentencing prevail would reduce the severity and the racial disparity in sentencing, and, with judges presiding over this phase, reduce the power of prosecutors. Shifting responsibility for payment, by having local governments pay a larger share of prison costs and a smaller share of local police costs, would give them an incentive to sentence fewer prisoners—and remove a disincentive from hiring more cops.
 
Stuntz was troubled by “institutional design and incentives” in criminal law and politics that push toward ever harsher rules and sentences. Power over criminal law is allocated to the three branches of government—the legislature makes it, the executive branch enforces it, and the judiciary interprets it—but they are not checks on one another in this sphere. In fact, legislators and the executive branch’s prosecutors both benefit from “more and broader crimes”: Legislators get more power when they define crimes more broadly because they reduce the role of judges in deciding who is guilty; and prosecutors have more power because they have more discretion about what and how to prosecute. As a result, legislators and prosecutors tacitly cooperate with each other, leading to both more law and less: more on the books, and less on the street, in the sense that the laws are so broad the police and prosecutors get to decide whom to go after and find guilty. Those decisions are about power. In the “rule of too much law,” Stuntz advises, “too much law amounts to no law at all.”

His solution to this set of problems is to replace the vicious cycle that creates them with a virtuous cycle based on cultivating a relationship between those who break the law (or are tempted to) and those who enforce it. For most of the twentieth century in the Northeast and Midwest, the ratio of police officers to prison inmates was two to one. Today, it is less than one to two. “More than any other statistic,” Stuntz writes, “that one captures what is most wrong with American criminal justice.” More cops mean more deterrence. More deterrence means fewer arrests and fewer convictions. In the 1990s, New York City had the biggest drop in urban crime during the decade. It also had the biggest increase in its police force.

Another important component would be fewer prisoners. This would require reducing the severity of sentencing, which is now “more punitive than Russia’s,” reducing the discrimination that contributes to blacks outnumbering whites among prisoners, and reducing “excessive prosecutorial power”—which is “unchecked by law and, given its invisibility, barely checked by politics.” And too much power for prosecutors doesn’t mean there are enough of them: Stuntz calls for many more, so there are more lawyers to litigate cases and the pressure on them to obtain plea bargains is alleviated. That would also require more money for public defenders to represent defendants in court.

A more drastic aspect of his reform vision would be sweeping changes in criminal laws—defining more crimes vaguely so courts would need to resort to jury trials to decide who was guilty. This would excuse from liability for the most serious offenses the least guilty members of a group of criminals and would even allow some guilty defendants to claim that, though their conduct fit the definition of a crime, it wasn’t so “wrongful” that it merited punishment. This would mean “constitutionaliz[ing]” much of basic criminal law, by asking courts to define its boundaries instead of legislators and prosecutors—and giving courts more power when many perceive them to have too much power already.

This unlikely element of his vision is also the most inventive. Stuntz contends that the Warren Court, instead of fixating on procedures addressed in the Bill of Rights, could have focused on equality as called for in the Fourteenth Amendment. In case after case where it settled on a procedural solution, the Court could have insisted that a black defendant who was plainly treated differently and less respectfully than a white defendant be guaranteed the equal protection of the laws. He called for the Warren Court to do what its conservative critics have usually attacked it for: to take an approach to constitutional reform that was “less legally grounded, more intuitive than lawlike.” This would surely have been lambasted as extreme judicial activism. But Stuntz believed that the Warren Court did not go far enough. He was a conservative who criticized the liberal Warren Court for its conservatism because he was convinced it would have been better for the justices to take a radical path.

The United States of the years right after World War II is unrecognizable in major ways because of changes wrought by the Warren Court. Landmark decisions it rendered about racial equality, school prayer, voting rights, and freedom of the press, as well as criminal justice, made our democracy more inclusive, more representative, more tolerant, and better informed, not to mention fairer to people accused of crimes.

But Stuntz wanted more. His hunger for more justice and mercy and, as a result, less crime and punishment made his work great. In this brave book, as contrarian as it is utopian, he constructs a powerful explanation about the vast and costly failure of the American criminal justice system and why the quest to reform it must be a high priority. He left an inspiring model of how.

The Two-Tiered Justice System: An Illustration

Friday, April 15, 2011 by Salon.com
by Glenn Greenwald

 

Of all the topics on which I've focused, I've likely written most about America's two-tiered justice system -- the way in which political and financial elites now enjoy virtually full-scale legal immunity for even the most egregious lawbreaking, while ordinary Americans, especially the poor and racial and ethnic minorities, are subjected to exactly the opposite treatment: the world's largest prison state and most merciless justice system. That full-scale destruction of the rule of law is also the topic of my forthcoming book. But The New York Times this morning has a long article so perfectly illustrating what I mean by "two-tiered justice system" -- and the way in which it obliterates the core covenant of the American Founding: equality before the law -- that it's impossible for me not to highlight it.

The article's headline tells most of the story: "In Financial Crisis, No Prosecutions of Top Figures." It asks: "why, in the aftermath of a financial mess that generated hundreds of billions in losses, have no high-profile participants in the disaster been prosecuted?" And it recounts that not only have no high-level culprits been indicted (or even subjected to meaningful criminal investigations), but few have suffered any financial repercussions in the form of civil enforcements or other lawsuits. The evidence of rampant criminality that led to the 2008 financial crisis is overwhelming, but perhaps the clearest and most compelling such evidence comes from long-time Wall-Street-servant Alan Greenspan; even he was forced to acknowledge that much of the precipitating conduct was "certainly illegal and clearly criminal" and that "a lot of that stuff was just plain fraud."

Despite that clarity and abundance of the evidence proving pervasive criminality, it's entirely unsurprising that there have been no real criminal investigations or prosecutions. That's because the overarching "principle" of our justice system is that criminal prosecutions are only for ordinary rabble, not for those who are most politically and financially empowered. We have thus created precisely the two-tiered justice system against which the Founders most stridently warned and which contemporary legal scholars all agree is the hallmark of a lawless political culture. Lest there be any doubt about that claim, just consider the following facts and events:

When Bush officials were revealed to have established a worldwide torture regime (including tactics which Obama's Attorney General flatly stated were illegal) and spied on Americans without the warrants required by law (which Obama himself insisted was criminal), what happened? This, from The New York Times, January 11, 2009:

And when Spanish prosecutors decided, in light of Obama's refusal, that it would criminally investigate the torture by American officials to which its citizens were subjected by the U.S., what happened? This, from Mother Jones, December 1, 2010:

When telecoms get caught participating in Bush's illegal eavesdropping program in violation of multiple federal statutes, what happened? This, from TPM, February 12, 2008:

And that, in turn, led to this, from The New York Times, June 3, 2009:

And when the CIA got caught destroying videotapes of its "interrogation" sessions with accused Terrorists even in the face of multiple court orders directing that they preserve such evidence -- acts which even the establishment-serving, rhetorically restrained co-Chairmen of the 9/11 Commission strongly suggested constituted "obstruction" of justice -- what happened? This, from Politico, November 9, 2010:

And when it came time to decide what to do with one of the most brazen and egregious lawbreakers in the financial world -- former Countrywide CEO Angelo Mozilo, whose fraud was so glaring that he was one of the very few to suffer any consequences (forced to pay a paltry $40 million out of his $500 million fortune) -- what happened? This, from AP, February 10, 2011:

All of that stands in the starkest possible contrast to how ordinary Americans -- especially the poor and racial and ethnic minorities -- are treated by this same "justice system": with incomparably harsh and merciless punishment. From The New York Times, April 23, 2008:

The virtually full-scale immunity now vested in political and financial elites stands in just as stark contrast to the treatment received by those who reveal wrongdoing, corruption and illegality by those elites -- from The New York Times, June 11, 2010:

And, from CBS News, March 11, 2011:

And this overflowing forgiveness and generosity toward elites stands in starkest contrast to foreign nationals accused of Terrorism, who are literally rendered non-persons and denied all rights - from The Washington Post, March 11, 2011:

And, from the ACLU, September 15, 2009:

In a 1795 letter, George Washington vowed that "the executive branch of this government never has, nor will suffer, while I preside, any improper conduct of its officers to escape with impunity." Thomas Jefferson -- in an April 16, 1784, letter to Washington -- argued that the foundation on which American justice must rest is "the denial of every preeminence." It's literally difficult to imagine how we could be further away from those core principles. That the culprits who caused one of the worst financial crises in modern history have been fully shielded from the consequences of their acts -- set along side the torturers and illegal eavesdroppers who have been similarly protected -- illustrates that quite compellingly.

How Courts Avoid Doing Justice

Monday 14 February 2011

by: Luke Hiken  |  Progressive Avenues | Op-Ed

It is apparent that in order to put more than 2.3 million people behind bars and keep them there, while simultaneously building a prison guard/police arm of the state that numbers in the millions, courts must make credible findings that an enormous number of American citizens are violent, dangerous, and worthy of extended imprisonment. Such a goal requires creativity in redefining what is “dangerous” to our society and why the incarceration of so many people is in the national interest.

It is too blatant and obvious for the courts to simply say that being poor or black is justification enough to imprison somebody. They have to put it into language that is palatable to Americans.

Thus, in order to find so many people guilty of the massive array of crimes established by the state, courts have had to construct an elaborate maze of rules and exceptions, authorizing and sustaining the convictions of so many people, and making sure that their criminal appeals go nowhere (except to profit those in the legal system fortunate enough to make a living by it). This maze is comprised of a series of rules that, on their own, appear reasonable, but when taken as a whole, demonstrate the total contempt courts have for the judicial process, and highlight the result-oriented nature of the process.

We all are familiar with how the law loves archaic Latin phrases that the typical
American knows nothing about: stare decisis (a rule is a rule); habeas corpus (bring us the body, dead or alive), ad infinitum (give us more money indefinitely) and res ipse loquitor (we can talk you blind), are obvious and well-known examples; but what is less known is how courts go about convicting the innocent in spite of laws forbidding it.

Here are just a handful of the excuses conjured up by result-oriented jurists to avoid letting the innocent out of our jails or prisons:

1) Waiver. An example: If you didn’t file your motion to suppress evidence when you should have, we don’t have to consider the fact the police unlawfully broke into your home and car, and seized evidence that would not have been admissible at trial. But you didn’t raise the argument when you should have. It is not our fault that your lawyer was asleep or drunk during the hearing.

2) Procedural Default. The federal court doesn’t have to consider the issues you’ve raised in your habeas corpus proceeding, because you didn’t raise those issues adequately when you were in front of the state court. Even if your argument would have won on the merits, you lose, because the state court didn’t get a chance to rule on it first.

3) Speculative. An example: You are arguing that the lethal injection procedure the state is going to use to kill you is cruel and unusual punishment, and will subject you to unwarrranted and excessive pain. But that argument is too speculative, and you can’t raise it until you can PROVE that the pain is unreasonably harsh. Perhaps you should consider filing again if, once you’re dead, it turns out you were correct. (Honestly, that is the law in Ohio.)

4) Timeliness. An example: You had one year within which to file your habeas corpus petition, and you filed it a day late. We won’t consider it, and you die in prison, regardless of how meritorious your claims are.

5) Presumption of correctness: You are arguing that your trial was unfair, but we, the court, are going to presume that everything was done correctly, and you have the burden of proving that the trial was unfair. The fact that your argument is as reasonable as the state’s doesn’t matter. You lose because of the presumption. But what about the presumption of innocence? Oh, that only applies before you are convicted. Afterwards, the presumption is that the trial was fair and you are therefore guilty as charged.

6) Legislative matter, not judicial. You are arguing that the death penalty is cruel and unusual punishment, but the legislature has declared it to be the law. If you don’t like their decision, ask them to change the law. Don’t ask us to tell them how to do their job.

7) Factual innocence ain’t enough. The judge says: You might be factually innocent of the charged crime, but your trial was “fair” and that’s good enough for us. Conviction affirmed. (A gift from the U.S. Supreme Court!)

8) State’s Rights. We know that the federal government authorizes you to engage in the conduct we’re prosecuting you for, but this is Texas, buddy. And here, you’re going to jail for it. This is not to be confused with “federalism” that says: even though the state has legalized the use of marijuana, the federal law says it’s illegal, and since federal law trumps state law (except when we prefer the state law), you can’t smoke pot, regardless of what your state electorate says.

9) Harmless Error. This is the favorite excuse for courts throughout the nation: the reliable catch-all “harmless error.” The court explains: “We understand that the prosecutor didn’t give you the exculpatory evidence that would have shown you were innocent. The police lied about your conduct. One of the jurors used to date the victim. The trial judge accepted money to rule against you. BUT, we find these little problems to be “HARMLESS ERROR” and we know, down deep, that you are guilty as hell. Conviction affirmed!

While the examples of these excuses might seem exaggerated, they are precisely what it is like to practice law in American courts these days. It is virtually impossible to read an appellate court decision that doesn’t rely upon one or all of these excuses to create an insurmountable obstacle course assuring that those charged with crimes do the time.

Picture yourself entering a labyrinth – you walk down the hallway and enter the first room. A big sign on the wall reads “Procedural default.” You turn around and keep searching for the next room. You find it, enter, and the sign reads “Harmless Error.”

Same result every which way you turn. Welcome to the courthouse.

...And Justice For Few

by William Fisher - Tuesday, December 14, 2010 by Inter Press Service

NEW YORK - Poor defendants on death row, immigrants in unfair deportation proceedings, torture victims, domestic violence survivors and victims of racial discrimination - all these groups are consistently being denied access to justice while those responsible for the abuses are protected, according to a new report by the American Civil Liberties Union.

Jamil Dakwar, director of the ACLU Human Rights Program, told IPS, "Access to justice is a fundamental human right and bedrock tenet of American democratic system - it was even codified by the Universal Declaration of Human Rights, which the U.S. championed 62 years ago."

"Unfortunately, access to the courts and effective remedy have been severely curtailed over the last decade, especially for those who need it most," he said. "It is time for our government and judiciary to recommit to respecting and promoting this essential right."

According to the report, "Slamming the Courthouse Doors", the "actions of the executive, federal legislative, and judicial branches of the United States government have seriously restricted access to justice for victims of civil liberties and human rights violations, and have limited the availability of effective (or, in some cases, any) remedies for these violations."

For example, the report details how individuals convicted of capital crimes who seek to present newly found evidence of their innocence or claims of serious constitutional violations are being denied recourse in the courts.

Federal legislation, most prominently the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), and Supreme Court decisions, has greatly limited access to federal review of state court death penalty convictions, the report says. It also charges that victims of rape, assault, religious rights violations and other serious abuses in prison are having their claims thrown out of court because of a restrictive federal law.

Immigrants who may have legitimate claims to remain in the U.S. are unknowingly waiving their opportunity to pursue these claims and are being swiftly deported because of unfair procedures, the report charges.

It also notes that victims of domestic violence are being denied the opportunity to seek civil remedy under the Violence Against Women Act because of recent court decisions.

Similarly, victims of torture and "extraordinary rendition" have been denied their day in court.

The administration of President Barack Obama has sought to extinguish lawsuits brought by torture survivors through use of "judicially-created doctrines such as the so-called 'state secrets' privilege and qualified immunity to dismiss civil suits alleging torture, cruel, inhuman, or degrading treatment, forced disappearance, and arbitrary detention, without consideration on the merits," the report says.

It charges that by invoking the "state secrets" privilege, the Obama administration can not only restrict discovery but can quash an entire lawsuit - without demonstrating the validity of their claim to a judge. Immigrants also are systematically denied access to justice, as they face monumental obstacles to obtaining review of removal orders.

The U.S. government has claimed that there is no right to judicial review of diplomatic assurances when it has sought to transfer individuals to countries known to employ torture.

Federal immigration officials also have used a procedure known as stipulated removal to deport non-U.S. citizens without a hearing before an immigration judge. "There is a lack of meaningful safeguards to ensure people with mental disabilities facing possible deportation from the United States are afforded fair hearings. As a result, legal permanent residents and asylum seekers with a lawful basis for remaining in the United States may have been unfairly deported from the country because their mental disabilities made it impossible for them to effectively present their claims in court," the report says. The ACLU's recommends that Congress amend the habeas-related provisions of AEDPA so that federal courts are more accessible to prisoners asserting claims of constitutional violations. It also urges the creation of and adequate funding for state defender organizations that are independent of the judiciary and that have sufficient resources to provide quality representation to indigent capital defendants.

Congress should pass legislation that creates procedures to prevent the abuse of the state secrets privilege, and the Obama administration should prohibit the reliance on "diplomatic assurances" to deport or otherwise transfer persons from the United States.

The ACLU also urged Congress to enact the End Racial Profiling Act, which would ban racial profiling and provide for government monitoring and documentation of racial profiling.

Frances Boyle, a legal expert familiar with the report, told IPS, "Because of the deliberate U.S. federal court-packing scheme undertaken by the [Ronald] Reagan, [George] Bush Sr. and [George] Bush Jr. administrations, today about 60 percent of U.S. federal judges at all levels - up to and including the U.S. Supreme Court - have been members of the Federalist Society, and/or were vetted by the Federalist Society."

Boyle, a law professor at the University of Illinois, described this organization as "right wing, racist, bigoted, reactionary, elitist, sexist, warmongering and totalitarian".

For example, he said, almost all of the lawyers involved in the Bush Jr. administration's torture scandal were and still are members of the Federalist Society.

Too many laws, too many prisoners

Never in the civilised world have so many been locked up for so little

 Spring, Texas 

 

THREE pickup trucks pulled up outside George Norris’s home in Spring, Texas. Six armed police in flak jackets jumped out. Thinking they must have come to the wrong place, Mr Norris opened his front door, and was startled to be shoved against a wall and frisked for weapons. He was forced into a chair for four hours while officers ransacked his house. They pulled out drawers, rifled through papers, dumped things on the floor and eventually loaded 37 boxes of Mr Norris’s possessions onto their pickups. They refused to tell him what he had done wrong. “It wasn’t fun, I can tell you that,” he recalls.

Mr Norris was 65 years old at the time, and a collector of orchids. He eventually discovered that he was suspected of smuggling the flowers into America, an offence under the Convention on International Trade in Endangered Species. This came as a shock. He did indeed import flowers and sell them to other orchid-lovers. And it was true that his suppliers in Latin America were sometimes sloppy about their paperwork. In a shipment of many similar-looking plants, it was rare for each permit to match each orchid precisely.

In March 2004, five months after the raid, Mr Norris was indicted, handcuffed and thrown into a cell with a suspected murderer and two suspected drug-dealers. When told why he was there, “they thought it hilarious.” One asked: “What do you do with these things? Smoke ’em?”

Prosecutors described Mr Norris as the “kingpin” of an international smuggling ring. He was dumbfounded: his annual profits were never more than about $20,000. When prosecutors suggested that he should inform on other smugglers in return for a lighter sentence, he refused, insisting he knew nothing beyond hearsay.

He pleaded innocent. But an undercover federal agent had ordered some orchids from him, a few of which arrived without the correct papers. For this, he was charged with making a false statement to a government official, a federal crime punishable by up to five years in prison. Since he had communicated with his suppliers, he was charged with conspiracy, which also carries a potential five-year term.

As his legal bills exploded, Mr Norris reluctantly changed his plea to guilty, though he still protests his innocence. He was sentenced to 17 months in prison. After some time, he was released while his appeal was heard, but then put back inside. His health suffered: he has Parkinson’s disease, which was not helped by the strain of imprisonment. For bringing some prescription sleeping pills into prison, he was put in solitary confinement for 71 days. The prison was so crowded, however, that even in solitary he had two room-mates
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A long love affair with lock and key 

 

Justice is harsher in America than in any other rich country. Between 2.3m and 2.4m Americans are behind bars, roughly one in every 100 adults. If those on parole or probation are included, one adult in 31 is under “correctional” supervision. As a proportion of its total population, America incarcerates five times more people than Britain, nine times more than Germany and 12 times more than Japan. Overcrowding is the norm. Federal prisons house 60% more inmates than they were designed for. State lock-ups are only slightly less stuffed.

The system has three big flaws, say criminologists. First, it puts too many people away for too long. Second, it criminalises acts that need not be criminalised. Third, it is unpredictable. Many laws, especially federal ones, are so vaguely written that people cannot easily tell whether they have broken them.

In 1970 the proportion of Americans behind bars was below one in 400, compared with today’s one in 100. Since then, the voters, alarmed at a surge in violent crime, have demanded fiercer sentences. Politicians have obliged. New laws have removed from judges much of their discretion to set a sentence that takes full account of the circumstances of the offence. Since no politician wants to be tarred as soft on crime, such laws, mandating minimum sentences, are seldom softened. On the contrary, they tend to get harder.

Some criminals belong behind bars. When a habitual rapist is locked up, the streets are safer. But the same is not necessarily true of petty drug-dealers, whose incarceration creates a vacancy for someone else to fill, argues Alfred Blumstein of Carnegie Mellon University. The number of drug offenders in federal and state lock-ups has increased 13-fold since 1980. Some are scary thugs; many are not. 

Michelle Collette of Hanover, Massachusetts, sold Percocet, a prescription painkiller. “I was planning to do it just once,” she says, “but the money was so easy. And I thought: it’s not heroin.” Then she became addicted to her own wares. She was unhappy with her boyfriend, she explains, but did not want to split up with him, because she did not want their child to grow up fatherless, as she had. So she popped pills to numb the misery. Before long, she was taking 20-30 a day.

When Ms Collette and her boyfriend, who also sold drugs, were arrested in a dawn raid, the police found 607 pills and $901 in cash. The boyfriend fought the charges and got 15 years in prison. In a plea bargain Ms Collette was sentenced to seven years, of which she served six.

“I don’t think this is fair,” said the judge. “I don’t think this is what our laws are meant to do. It’s going to cost upwards of $50,000 a year to have you in state prison. Had I the authority, I would send you to jail for no more than one year…and a [treatment] programme after that.” But mandatory sentencing laws gave him no choice.

Massachusetts is a liberal state, but its drug laws are anything but. It treats opium-derived painkillers such as Percocet like hard drugs, if illicitly sold. Possession of a tiny amount (14-28 grams, or ½-1 ounce) yields a minimum sentence of three years. For 200 grams, it is 15 years, more than the minimum for armed rape. And the weight of the other substances with which a dealer mixes his drugs is included in the total, so 10 grams of opiates mixed with 190 grams of flour gets you 15 years.

Ms Collette underwent drug treatment before being locked up, and is now clean. But in prison she found she was pregnant. After going through labour shackled to a hospital bed, she was allowed only 48 hours to bond with her newborn son. She was released in March, found a job in a shop, and is hoping that her son will get used to having her around.

Rigid sentencing laws shift power from judges to prosecutors, complains Barbara Dougan of Families Against Mandatory Minimums, a pressure-group. Even the smallest dealer often has enough to trigger a colossal sentence. Prosecutors may charge him with selling a smaller amount if he agrees to “reel some other poor slob in”, as Ms Dougan puts it. He is told to persuade another dealer to sell him just enough drugs to trigger a 15-year sentence, and perhaps to do the deal near a school, which adds another two years.

Severe drug laws have unintended consequences. Less than half of American cancer patients receive adequate painkillers, according to the American Pain Foundation, another pressure-group. One reason is that doctors are terrified of being accused of drug-trafficking if they over-prescribe. In 2004 William Hurwitz, a doctor specialising in the control of pain, was sentenced to 25 years in prison for prescribing pills that a few patients then resold on the black market. Virginia’s board of medicine ruled that he had acted in good faith, but he still served nearly four years.

Half the states have laws that lock up habitual offenders for life. In some states this applies only to violent criminals, but in others it applies even to petty ones. Some 3,700 people who committed neither violent nor serious crimes are serving life sentences under California’s “three strikes and you’re out” law. In Alabama a petty thief called Jerald Sanders was given a life term for pinching a bicycle. Alabama’s judges are elected, as are those in 32 other states. This makes them mindful of public opinion: some appear in campaign advertisements waving guns and bragging about how tough they are.

 

Watching hairs go white, and lifetimes ebb away

Many Americans assume that white-collar criminals get off lightly, but many do not. Granted, they may be hard to catch and can often afford good lawyers. But federal prosecutors can file many charges for what is essentially one offence. For example, they can count each e-mail sent by a white-collar criminal in the course of his criminal activity as a separate case of wire fraud, each of which carries a maximum sentence of 20 years. The decades soon add up. Sentences depend partly on the size of the loss and the number of people affected, so if you work for a big, publicly traded company, you break a rule and the share-price drops, watch out.


Eternal punishment
Jim Felman, a defence lawyer in Tampa, Florida, says America is conducting “an experiment in imprisoning first-time non-violent offenders for periods of time previously reserved only for those who had killed someone”. One of Mr Felman’s clients, a fraudster called Sholam Weiss, was sentenced to 845 years. “I got it reduced to 835,” sighs Mr Felman. Faced with such penalties, he says, the incentive to co-operate, which means to say things that are helpful to the prosecution, is overwhelming. And this, he believes, “warps the truth-seeking function” of justice.

Innocent defendants may plead guilty in return for a shorter sentence to avoid the risk of a much longer one. A prosecutor can credibly threaten a middle-aged man that he will die in a cell unless he gives evidence against his boss. This is unfair, complains Harvey Silverglate, the author of “Three Felonies a Day: How the Feds Target the Innocent”. If a defence lawyer offers a witness money to testify that his client is innocent, that is bribery. But a prosecutor can legally offer something of far greater value—his freedom—to a witness who says the opposite. The potential for wrongful convictions is obvious.

Badly drafted laws create traps for the unwary. In 2006 Georgia Thompson, a civil servant in Wisconsin, was sentenced to 18 months in prison for depriving the public of “the intangible right of honest services”. Her crime was to award a contract (for travel services) to the best bidder. A firm called Adelman Travel scored the most points (on an official scale) for price and quality, so Ms Thompson picked it. She ignored a rule that required her to penalise Adelman for a slapdash presentation when bidding. For this act of common sense, she served four months. (An appeals court freed her.)

The “honest services” statute, if taken seriously, “would seemingly cover a salaried employee’s phoning in sick to go to a ball game,” fumes Antonin Scalia, a Supreme Court justice. The Supreme Court ruled recently that the statute was so vague as to be unconstitutional. It did not strike it down completely, but said it should be applied only in cases involving bribery or kickbacks. The challenge was brought by Enron’s former boss, Jeff Skilling, who will not go free despite his victory, and Conrad Black, a media magnate released this week on bail pending an appeal, who may.

There are over 4,000 federal crimes, and many times that number of regulations that carry criminal penalties. When analysts at the Congressional Research Service tried to count the number of separate offences on the books, they were forced to give up, exhausted. Rules concerning corporate governance or the environment are often impossible to understand, yet breaking them can land you in prison. In many criminal cases, the common-law requirement that a defendant must have a mens rea (ie, he must or should know that he is doing wrong) has been weakened or erased.

“The founders viewed the criminal sanction as a last resort, reserved for serious offences, clearly defined, so ordinary citizens would know whether they were violating the law. Yet over the last 40 years, an unholy alliance of big-business-hating liberals and tough-on-crime conservatives has made criminalisation the first line of attack—a way to demonstrate seriousness about the social problem of the month, whether it’s corporate scandals or e-mail spam,” writes Gene Healy, a libertarian scholar. “You can serve federal time for interstate transport of water hyacinths, trafficking in unlicensed dentures, or misappropriating the likeness of Woodsy Owl.”

“You’re (probably) a federal criminal,” declares Alex Kozinski, an appeals-court judge, in a provocative essay of that title. Making a false statement to a federal official is an offence. So is lying to someone who then repeats your lie to a federal official. Failing to prevent your employees from breaking regulations you have never heard of can be a crime. A boss got six months in prison because one of his workers accidentally broke a pipe, causing oil to spill into a river. “It didn’t matter that he had no reason to learn about the [Clean Water Act’s] labyrinth of regulations, since he was merely a railroad-construction supervisor,” laments Judge Kozinski.

 

Society wants retribution

Such cases account for only a tiny share of the Americans behind bars, but they still matter. When so many people are technically breaking the law, it is up to prosecutors to decide whom to pursue. No doubt most prosecutors choose wisely. But members of unpopular groups may not find that reassuring. Ms Thompson, for example, was prosecuted just before an election, at a time when allegations of public corruption in Wisconsin were in the news. Some prosecutors, such as Eliot Spitzer, the disgraced ex-governor of New York, have built political careers by nailing people whom voters don’t like, such as financiers.


Prison deters? Not much, not the worst
Some people argue that the system works: that crime has fallen in the past two decades because the bad guys are either in prison or scared of being sent there. Caged thugs cannot break into your home. Bernie Madoff’s 150-year sentence for running a Ponzi scam should deter imitators. And indeed the crime rate continues to drop, despite the recession, as Michael Rushford of the Criminal Justice Legal Foundation, an advocacy group, points out. This, he says, is because habitual criminals face serious consequences. Some research supports him: after raking through decades of historical data, John Donohue of Yale Law School estimates that a 10% increase in imprisonment brings a 2% reduction in crime.

Others disagree. Using more recent data, Bert Useem of Purdue University and Anne Piehl of Rutgers University estimate that a 10% increase in the number of people behind bars would reduce crime by only 0.5%. In the states that currently lock up the most people, imprisoning more would actually increase crime, they believe. Some inmates emerge from prison as more accomplished criminals. And raising the incarceration rate means locking up people who are, on average, less dangerous than the ones already behind bars. A recent study found that, over the past 13 years, the proportion of new prisoners in Florida who had committed violent crimes fell by 28%, whereas those inside for “other” crimes shot up by 189%. These “other” crimes were non-violent ones involving neither drugs nor theft, such as driving with a suspended licence.


And now the reckoning, in dollars
Crime is a young man’s game. Muggers over 30 are rare. Ex-cons who go straight for a few years generally stay that way: a study of 88,000 criminals by Mr Blumstein found that if someone was arrested for aggravated assault at the age of 18 but then managed to stay out of trouble until the age of 22, the risk of his offending was no greater than that for the general population. Yet America’s prisons are crammed with old folk. Nearly 200,000 prisoners are over 50. Most would pose little threat if released. And since people age faster in prison than outside, their medical costs are vast. Human Rights Watch, a lobby-group, talks of “nursing homes with razor wire”.

Jail is expensive. Spending per prisoner ranges from $18,000 a year in Mississippi to about $50,000 in California, where the cost per pupil is but a seventh of that. “[W]e are well past the point of diminishing returns,” says a report by the Pew Center on the States. In Washington state, for example, each dollar invested in new prison places in 1980 averted more than nine dollars of criminal harm (using a somewhat arbitrary scale to assign a value to not being beaten up). By 2001, as the emphasis shifted from violent criminals to drug-dealers and thieves, the cost-benefit ratio reversed. Each new dollar spent on prisons averted only 37 cents’ worth of harm.

Since the recession threw their budgets into turmoil, many states have decided to imprison fewer people, largely to save money. Mississippi has reduced the proportion of their sentences that non-violent offenders are required to serve from 85% to 25%. Texas is making greater use of non-custodial penalties. New York has repealed most mandatory minimum terms for drug offences. In all, the number of prisoners in state lock-ups fell by 0.3% in 2009, the first fall since 1972. But the total number of Americans behind bars still rose slightly, because the number of federal prisoners climbed by 3.4%.

A less punitive system could work better, argues Mark Kleiman of the University of California, Los Angeles. Swift and certain penalties deter more than harsh ones. Money spent on prisons cannot be spent on more cost-effective methods of crime-prevention, such as better policing, drug treatment or probation. The pain that punishment inflicts on criminals themselves, on their families and on their communities should also be taken into account.

“Just by making effective use of things we already know how to do, we could reasonably expect to have half as much crime and half as many people behind bars ten years from now,” says Mr Kleiman. “There are a thousand excuses for failing to make that effort, but not one good reason.”