The Wrongs of American Justice

Originally Published at National Review by Conrad Black | February 20 2016

Two relatively recent articles in respected publications have piercingly reminded me of what a rotting carcass much of the American legal system has become. The articles were a piece in The Weekly Standard of October 26 by retired attorney Paul Mirengoff and Georgetown law professor and former prosecutor William Otis, and a fawning profile of Judge Richard Posner by Lincoln Caplan (the Truman Capote visiting lecturer at Yale Law School, if such a position can be imagined) in the current issue of Harvard Magazine.  TOP ARTICLES2/5READ MOREWarren Rips Bloomberg for AllegedlyTelling Pregnant Employee to ‘Kill’ It

The basic point of the Mirengoff-Otis article was that mandatory minimum sentences for convicted offenders were “the biggest public-policy success of the last two generations.” The authors hold that legislated, preordained sentencing and “proactive policing” produced a dramatic reduction in crime. It happens that I engaged in a Federalist Society telephone forum on the American justice system with William Otis and Professor Ellen Podgor of Stetson University in Florida in February 2013, and reported on it in this magazine on February 28 of that year. The issue was much broader than mandatory minimums, and the three of us roamed very cordially over a wide range of U.S. criminal-law matters. Familiar though they are to many readers, the concerns I expressed were that American prosecutors win 99.5 percent of their cases, 97 percent without a trial, because the plea-bargain system extorts inculpatory evidence from witnesses in exchange for reduced sentences or immunity from prosecution, including for perjury, and threatens them with prosecution if they decline to cooperate. In practice, this means being catechized by prosecutors in a largely false sequence of allegations against the target. Every informed person in America knows that is how the system operates and nothing is ever done about it.

RELATED: Injustice System: Today’s America Is a Landscape of Legal Abuses

Professor Podgor pointed out that there are now over 4,000 criminal statutes and that new laws and regulations with heavy sanctions are being feverishly adopted every year. The Otis view was that the system was seamlessly perfect and American prosecutors are more successful than prosecutors in other countries because they are more competent. He accepted that the aging of the population, improved police techniques (elevated in his Weekly Standard piece to co-responsibility for the greatest public-policy success of 40 years), and the profusion of security cameras might have helped. But he underestimated the number of incarcerated people in the country by 33 percent and was afflicted by glottal stops, incapable of answering when I asked him whether, since there are 48 million convicted felons in the U.S., he really believes that nearly one-sixth of all Americans and about a third of adult males really deserved to be considered officially as criminals. His silence was more eloquent than the mellifluous whitewash that preceded it.

RELATED: Baltimore’s Problem, and America’s: The Criminal-Justice System Is a Disaster

In the New York Review of Books in 2014, Judge Jed S. Rakoff of the U.S. District Court in Manhattan described the system of American criminal justice as effectively a fraud that no longer exists in practice. Former senator Jim Webb of Virginia has called for a Senate committee to look into the fact that the United States has six to eight times as many incarcerated people per capita as the comparable large, prosperous democracies: Australia, Canada, France, Germany, Japan, and the United Kingdom. Webb told the Senate that either those other countries don’t care about crime, which is rubbish (and they all have a lower crime rate than the U.S.), or Americans are uniquely addicted to committing crimes, which is also bunk, or the American system doesn’t function well. Bingo, but the committee was never established (not that that matters, committees are struck all the time all over the country on these matters but they never accomplish anything), and Webb retired from the Senate. Almost no one cares.

RELATED: America Desperately Need to Fix Its Overcriminalization Problem

The idea that judges are softies who don’t penalize wrongdoers is fatuous, especially in the state courts, where most sentences are handed down and the judges are elected, usually by pandering to the baying for blood orchestrated by Nancy Grace–style lynch mobs that lead most public opinion. In 1960, the United States, like other advanced democracies, had some sort of social balance between the punishment of people who did bad things and the desire to blend deterrence, punishment, and positive encouragement of a reformed offender. The black-radical movement frightened the white majority of Americans, and the feminists sold society and the media on the idea that all men were potential rapists and that even suggestive glances, or indefinable harassment, must be severely punished. Then everyone, from right to left, piled onto the bandwagon: Bobby Kennedy and Nelson Rockefeller were just as extreme as Richard Nixon and Ronald Reagan. As Otis acknowledged in the piece he co-authored, drug crimes are the greatest problem, but many drug offenses aren’t reported or don’t lead to an arrest. So his claims of progress are hollow by his own admission. The War on Drugs has been a complete failure. Drugs are in more plentiful supply and use than ever in the U.S. and the states are already moving toward legalization of marijuana, which morally undermines half the massive increase in convictions. The desire of mismanaged state governments for marijuana revenue can be relied upon to complete the destruction of the Otis-Mirengoff argument.

#share#William Otis told Professor Podgor and me that that if American prosecutors convicted only as large a percentage of the accused as prosecutors in the comparable countries mentioned, “the prosecutors would be reviled for dragging the innocent through ineffectual proceedings.” This is the point: They are committing the greater offense of dragging huge numbers of the innocent through kangaroo courts, where, as he did not (and could not) dispute, there is a huge procedural advantage for the prosecutors, and the judges don’t sentence — they inflict decreed, draconian sentences from the legislators who have rolled over like poodles for the floggers and executioners of the prosecutocracy and the public that has been whipped up to support them. Otis claims that the prospect of relaxation of mandatory minimums, giving judges back a little latitude, has caused the crime rate to start to rise. But the real reason is that a number of police forces, resenting recent media attention to the coast-to-coast shooting gallery they are running in some areas, are conducting what amounts to a work-to-rule, to remind society of the utility of police forces.

The fact that people armed with such absolute power as American prosecutors possess will abuse it is among those “truths” we may consider “to be self-evident.”

William Otis must know as well as anyone that there are revelations every week of heinous wrongdoing by prosecutors: Alaska senator Ted Stevens was found guilty and denied reelection to an eighth term, and the case then collapsed because of the prosecution’s withholding of exculpatory evidence. There was no sanction on the prosecutors (though one of them committed suicide). Judith Miller has shown that Patrick Fitzgerald misconstrued her evidence to convict former vice president Dick Cheney’s then–chief of staff Scooter Libby. In the other countries I have mentioned, Fitzgerald would be disbarred. In the infamous Thompson case of 2011, a man who had spent 14 years on death row, although prosecutors knew him to be innocent from DNA evidence they had withheld, had his award of $14 million damages overturned at the Supreme Court, as prosecutors must effectively have an absolute immunity, even for illegal conduct, apart from whatever penalties the local bar might impose.

The fact that people armed with such absolute power as American prosecutors possess will abuse it is among those “truths” we may consider “to be self-evident.” Despite the good-faith efforts of very many people, the criminal-justice system of the United States is an abomination and a disgrace and a menace to every citizen of the country.

This brings me to the Harvard profile and interview with Judge Richard Posner, who is celebrated as a great “pragmatist” of vast intellectual depth, and a judge so brilliant that there are suggestions of the need for a Nobel Prize for Judicial Thinking, which, if created, should be awarded to Posner. I had an appeal of four convictions (out of 17 original counts) referred to a panel of the Seventh Circuit in Chicago chaired by Posner, in 2007. He obviously had not read the arguments, interrupted three-quarters of the sentences initiated by my counsel — the very respected former deputy solicitor general of the U.S., Andrew Frey — and was simply an extension of the prosecution. We successfully appealed to the U.S. Supreme Court, where Posner was, though not by name, excoriated for his incomprehension of the law. In the perverse American manner, the Supremes vacated the remaining counts but sent them back to Posner and the cigar-store Indians on the panel with him, for the “assessment of the gravity of their errors.” With infinite regret, Posner had to let the two major counts go, but spuriously retrieved two and recommended to the trial judge that she not alter the original sentence. This was too much even for a federal court that had had some pretty un-Solomonic moments, and the sentence was effectively cut in half; the barest fig-leaf remained to protect the credibility of the prosecutors (Fitzgerald and his spear-carriers) and the local federal and appellate bench for this failed and unfounded prosecution.COMMENTS

Given the correlation of forces between the unbeatable and severe American justice system and me, I thought I had done well, and I did some research on the famous Posner, so unimpressive, querulous, and devoid of any insight or wit were his two performances in matters where I was involved. I had read his life of Oliver Wendell Holmes; as a biographer of prominent American public figures, I found it stale, wordy, and banal. I read Posner’s book analyzing the causes of the 2008 economic crisis and promising recommendations, and his chief recommendation was for a “properly funded inquiry” into the causes, hardly an answer to the reader’s curiosity. He also wrote: “I’m a Keynesian,” like President Kennedy at the Berlin Wall. By this, I assume he meant he favors stimulative spending in weak economic times; not even Posner can agree with Keynes’s harebrained theories that there is a natural balance in the economy, or that the imposition of reparations on Germany in 1919 caused World War II. (He doesn’t like history, Caplan writes, presumably because it can impinge on his pragmatism, the license to produce any decision or opinion, however absurd.) But none of it has anything to do with the causes of the 2008 financial crisis. Contrary to Mr. Caplan’s account, Posner is not a good writer — he is inelegant, pedantic, simplistic, self-indulgent, and laborious. He is like an ancient, squawking goose, an intellectual bigot, becoming more acoustically irritating as he exploits his generous sinecure to the last day.

For all his 35 years of inflicting on the legal world a torrent of opinionated excrescences from his throbbing ego, such as his suggestion that adoption of children should be by auction (and, much more sensibly, for the legalization of marijuana), this “pragmatic” Nobel-level philosopher of the law has sat fiddling like Nero, as the Bill of Rights has been shredded. Posner has been as mute as a suet pudding as the Fifth, Sixth, and Eighth Amendment guarantees of due process — the grand jury as an assurance against capricious prosecution, the prohibition against seizure of property without just compensation, access to counsel (of choice), an impartial jury, prompt justice, and reasonable bail — have been destroyed by the prosecutocracy. Apart from some of his thoughts about Yeats, he is essentially a loudmouth, an infelicitous combination of Bacon’s “much-talking judge” and Newman’s seeker of “mere controversy.” He told Caplan he disliked “theology without God” and that he “dislike[s] theology with God.” He’s an atheist who still wants to give his opinion on theology. Someone who knows Posner, and is qualified, should try to ascertain whether his unfocused and often bilious logorrhea is more the consequence of not being proposed for the Supreme Court after decades of striving, or of the fact that, as he said to a New Yorker interviewer 15 years ago, his wife’s cat doesn’t like him. A statue of the cat should be put in front of the Chicago federal courthouse, a palace of corruption and hypocrisy, right beside the plaques in remembrance of judges assassinated, allegedly in acts of vengeance for unjust decisions.

CONRAD BLACK’s latest book is Donald J. Trump, A President Like No Other. He can be reached at [email protected]@conradmblack


Not Everything That’s Unseemly Should Be Illegal

Originally published at Cato Institute by Ilya Shapiro and Randal John Meyer

The explosion in criminal statutes is only a part of the problem of overcriminalization. The other side of the coin is prosecutorial discretion: a prosecutor’s official authority to charge certain offenses and not to charge others. The growth of criminal codes, state and federal, gives prosecutors more tools, which allows them to both “stack” charges and expand the reach of criminal code provisions to new, non-criminal facts.

Take for example several recent prosecutions under New Jersey’s official misconduct statute, a felony provision with a mandatory five-year, no-parole sentence.

On its face, the law simply prevents government officials from abusing their offices for personal gain. “Official misconduct” under the statute means an official’s act or omission “relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner.” Prosecutors have used this broadly worded language in highly creative ways.

In one recent case, New Jersey Superior Court Judge Carlia M. Brady was charged with official misconduct and harboring a fugitive. Judge Brady went to the police on June 10, 2013 to report that her car was stolen and that her then-boyfriend, Jason Prontnicki, was likely involved. As it turned out, Prontnicki was wanted on an outstanding warrant for robbery. The police informed Judge Brady that she was obliged as an “officer of the court” to inform the police as to Prontnicki’s whereabouts. When Prontnicki showed up at her house for brief periods of time on June 10 and 11, Judge Brady informed Prontnicki that he could not stay with her and Prontnicki made clear his intentions to turn himself in with the help of counsel. After both incidents, Judge Brady called the police and left unreturned voicemails. On June 11, police arrested Prontnicki and Brady at her home.

Clearly Judge Brady had violated her duty to report the whereabouts of a wanted criminal suspect, right? The only problem is that such a duty doesn’t exist, either for citizens generally or for judges specifically.

In New Jersey, like most places, the enforcement of arrest warrants is the job of law enforcement officials, such as police. Indeed, the very idea of a judge enforcing the warrants she or her colleagues issue conjures up the ridiculous image of a robe-clad jurist chasing a fleeing suspect while wielding a wooden gavel. The state supreme court has even made clear that judges don’t have an official duty to effectuate arrest warrants.

Yet the prosecutor decided to charge Brady not only with harboring Prontnicki—a dubious move given her clear instructions for him to stay away, the absence of any assistance, and their understanding that he would turn himself in—but with official misconduct. In the prosecutor’s eyes, Brady’s judicial role created a special duty to report and her failure to do so constituted official misconduct—despite clear case law to the contrary and the fact that Judge Brady was on vacation from her official duties when the relevant acts occurred.

The misuse of New Jersey’s official misconduct statute isn’t limited to judges or even executive-branch officials, but reaches teachers.

In two cases, those of Adrian McConney and Nicole McDonough, high school teachers who had sex with adult students were charged with official misconduct. Neither had been accused of promising grade bumps or using their authority to control or initiate the sexual relationship. Because of this absence of the abuse of official power for some sort of quid pro quo, prosecutors in both cases looked to the administrative codes governing teacher conduct to invent a legal duty that was allegedly violated by consensual sexual relationships.

The administrative codes governing educators were not intended to provide the basis for criminal prosecution, and say as much expressly. In other words, these teachers’ extra-curricular activities may be firing offenses (and maybe not — we don’t want to get into employment law and union regulations) but they’re not crimes.

If the prosecutors’ logic were carried to its conclusion, these codes—which require such innocuous things as teachers’ maintaining professional appearance at all times—could result in five-year mandatory no-parole sentences. Every municipal bureaucrat would now have the power to write criminal law via civil guidance; any principal who has a personal conflict with a teacher could threaten prosecution with a savvy interpretation of administrative rules.

Moreover, words in official government guidance would lose all meaning: if the state says that a particular civil code will not be the basis for criminal prosecution, that should be a good indicator to a reasonable person that he or she will not run afoul of criminal laws by violating that code. Due process of law demands sufficient notice of what is criminal before a statue is applied against a defendant.

In both the federal and state criminal-justice systems, prosecutors are quite properly entrusted with discretion to charge appropriate offenses in appropriate cases—but that discretion is abused when the law is made to stretch to cover obviously licit conduct. Whatever one thinks of a judge who fraternizes with shady characters or teachers who have sex with adult students, New Jersey has not seen fit to criminalize either of these behaviors. It’s not the job of prosecutors to gap-fill the criminal code by dubiously extending the reach of criminal provisions such that anything that hints of social impropriety must be criminal.

It’s bad enough when legislatures pass laws to criminalize behavior of which they morally disapprove—as Bill Buckley said, not everything that’s bad should be illegal—but when prosecutors effectively write their own criminal codes, it’s the antithesis of the rule of law.


The Culture of Criminalization

Originally published at Cato Institute by Gene Healy

On April 22, a House Judiciary subcommittee approved a bill that would send parents to jail for at least three years if they learn of drug activity near their children and fail to report it to authorities within 24 hours.

A brief pause for reflection might lead one to wonder whether this is a good idea, especially in jurisdictions such as Baltimore, where gangland killings of government witnesses are all too common. But when it comes to the criminal law, Congress rarely pauses for reflection any more.

Earlier in April, the bill’s author, Rep. James Sensenbrenner (R.-WI), floated what might be called the “Jail Janet Jackson” initiative. Instead of enforcing the Federal Communications Commission’s indecency regulations with fines on broadcasters, according to Sensenbrenner, those who violate the regulations should be subject to arrest and imprisonment: “I’d prefer using the criminal process rather than the regulatory process,” Sensenbrenner said, “Aim the cannon specifically at the people committing the offenses.”

There are serious problems with Sensenbrenner’s proposal: the FCC’s indecency standards are notoriously vague and of dubious constitutionality. How could a policy that says “misspeak and go to jail” not end up chilling constitutionally protected speech?

But there’s an even more fundamental question to ask: is this an appropriate use of the “cannon” of the criminal sanction? Do we really want to lock people up for bad taste?

Sensenbrenner’s jail‐​centric approach reflects a broader social phenomenon, and a troubling one. The criminal sanction is supposed to be a last resort, reserved for the most serious offenses to civil peace. But more and more, it’s becoming government’s first line of attack: a way for lawmakers to show that they’re serious about whatever the perceived social problem of the month is. We’re all familiar with the cranky uncle who brays at the TV: “lock ‘em all up, I say!” That attitude makes for entertaining talk radio. But what’s frightening is that it’s increasingly becoming a basis for public policy.

Examples of reflexive criminalization abound. The American Horse Slaughter Prevention Act, a bill to prevent the transportation of horses for human consumption, currently has 80 cosponsors in Congress (nothing against horses, but is this a huge problem?) If signed into law, it will join such illustrious federal crimes as the interstate transport of water hyacinths, trafficking in unlicensed dentures, and misappropriating the likeness of “Woodsy Owl” and his associated slogan “give a hoot, don’t pollute” (punishable by up to six months in prison).

Because Congress criminalizes unreflectively, the federal criminal code has become vast and incomprehensible. A research team led by Professor John Baker of Louisiana State Law School recently estimated that there are now over 4,000 separate federal criminal offenses. That number, inexact as it is, vastly understates the breadth of the criminal law, since the federal criminal code in turn incorporates by reference tens of thousands of regulatory violations never voted on by Congress.

And this burgeoning Culture of Criminalization has effects all the way down the law enforcement ladder, as local police increasingly use handcuffs and jail to deal with situations that clearly don’t warrant it. Last September, at a Washington D.C. bus stop, a Metro Transit officer forced a pregnant woman to the ground and handcuffed her for talking too loudly on her cell phone. In December, a 10‐​year‐​old Philadelphia schoolgirl was handcuffed, put in the paddy wagon, and taken to jail for having a pair of scissors in her bookbag.

One of our most destructive overcriminalization binges occurred during the “Just Say No” Era when Congress embraced mandatory minimum sentencing as a means to deal with the use of illicit drugs. Reasonable people can disagree about whether and how much of a threat drug abuse represents. But what’s clear is that making prison the solution to drug abuse has had staggering social costs. There are now eight times as many women in prison as there were in 1980, and the drug war is a key factor in driving the incarceration rate. In 2001 the average federal drug trafficking sentence was 75 months, more than double the average manslaughter sentence. In addition to sending parents to jail for failure to testify against drug dealers, Sensenbrenner’s bill would extend and enhance mandatory minimum drug penalties, adding to the social costs of the drug war.

Sensenbrenner is right to compare the criminal law to a “cannon”: the criminal sanction is heavy artillery. It ought to be reserved for those behaviors that warrant society’s strongest condemnation and the loss of liberty that such behavior merits. Wielding the cannon indiscriminately causes tremendous collateral damage.

Decrying overcriminalization does not mean being soft on crime. Just the opposite: being tough on crime requires making intelligent distinctions between conduct that truly threatens the public and conduct better handled by fines or civil law, to say nothing of conduct that’s really none of the government’s business. Those who can’t make those distinctions, far from being tough on crime, actually weaken the moral force of the criminal law. That’s a crime in itself.


Gene Healy is senior editor at the Cato Institute, and editor of the new book Go Directly to Jail: the Criminalization of Almost Everything.


The Overcriminalization of America

Originally published at Politico by Charles G. Koch & Mark Holden | January 7, 2015

As Americans, we like to believe the rule of law in our country is respected and fairly applied, and that only those who commit crimes of fraud or violence are punished and imprisoned. But the reality is often different. It is surprisingly easy for otherwise law-abiding citizens to run afoul of the overwhelming number of federal and state criminal laws. This proliferation is sometimes referred to as “overcriminalization,” which affects us all but most profoundly harms our disadvantaged citizens. 

Overcriminalization has led to the mass incarceration of those ensnared by our criminal justice system, even though such imprisonment does not always enhance public safety. Indeed, more than half of federal inmates are nonviolent drug offenders. Enforcing so many victimless crimes inevitably leads to conflict between our citizens and law enforcement. As we have seen all too often, it can place our police officers in harm’s way, leading to tragic consequences for all involved.

How did we get in this situation? It began with well-intentioned lawmakers who went overboard trying to solve perceived or actual problems. Congress creates, on average, more than 50 new criminal laws each year. Over  time, this has translated into more than 4,500 federal criminal laws spread across 27,000 pages of the United States federal code. (This number does not include the thousands of criminal penalties in federal regulations.) As a result, the United States is the world’s largest jailer— first in the world for total number imprisoned and first among industrialized nations in the rate of incarceration. The United States represents about 5 percent of the world’s population but houses about 25 percent of the world’s prisoners.

We have paid a heavy price for mass incarceration and could benefit by reversing this trend. It has been estimated that at least 53 percent of those entering prison were living at or below the U.S. poverty line when their sentence began. Incarceration leads to a 40 percent decrease in annual earnings, reduced job tenure and higher unemployment. A Pew Charitable Trust study revealed that two-thirds of former inmates with earnings in the bottom fifth upon release in 1986 remained at or below that level 20 years later. A Villanova University study concluded that “had mass incarceration not occurred, poverty would have decreased by more than 20 percent, or about 2.8 percentage points” and “several million fewer people would have been in poverty in recent years.”

African-Americans, who make up around 13 percent of the U.S. population but account for almost 40 percent of the inmates, are significantly affected by these issues. According to Harvard sociologist Bruce Western: “Prison has become the new poverty trap. It has become a routine event for poor African-American men and their families, creating an enduring disadvantage at the very bottom of American society.” 

Reversing overcriminalization and mass incarceration will improve societal well-being in many respects, most notably by decreasing poverty. Today, approximately 50 million people (about 14 percent of the population) are at or below the U.S. poverty rate. Fixing our criminal system could reduce the overall poverty rate as much as 30 percent, dramatically improving the quality of life throughout society—especially for the disadvantaged.

To bring about such a transformation, we must all set aside partisan politics and collaborate on solutions. That is why we have partnered with the National Association of Criminal Defense Lawyers for more than 10 years to bring about positive changes in our justice system.  

We support a five-step approach to criminal justice reform:

First, “do no more harm.” Legislators must resist the temptation to criminalize activities that do not fit a common-sense understanding of what is a “crime.” Criminal laws should not impose liability if the accused did not knowingly and willfully intend to commit the bad act. This explosion of criminal laws has led to imposing liability on activities that ordinary citizens would have no reason to believe would be criminal such as converting a wild donkey into a private donkey, bathing in the Arkansas Hot Springs National Park without a doctor’s note, and agreeing to take mail to the post office but not dropping it off. It has led to criminal liability for amateur arrowhead collectors who had no idea their hobby could be a federal crime, as well as criminal charges and  a conviction for a former Indianapolis 500 champion who got lost while snowmobiling during a blizzard and unwittingly ended up on federal land.  

Second, we must address prosecutorial abuses—especially in the discovery and grand jury processes. Even the late Senator Ted Stevens fell victim to prosecutorial abuse in his trial when during the discovery process, federal prosecutors systematically concealed evidence that supported the senator’s defense and testimony. Prosecutors must disclose all evidence favorable to the accused to ensure that every American should be treated equally and fairly under the law, whether the accused is a disadvantaged urban teenager or a wealthy corporate executive.

Third, we must ensure that all those charged with a crime receive their Sixth Amendment right to representation by a lawyer. Inadequate or no legal representation results in devastating consequences for criminal defendants and their families.

Fourth, end unduly harsh sentences and resulting disparities by eliminating mandatory minimum sentences that dictate punishment unrelated to the nature or harm of the underlying crime and facts. We must honor the ideal of the punishment fitting the crime by allowing judges to exercise discretion. 

Finally, after a sentence is served, we should restore all rights to youthful and non-violent offenders, such as those involved in personal drug use violations. If ex-offenders can’t get a job, education or housing, how can we possibly expect them to have a productive life? And why should we be surprised when more than half of the people released from prison are again incarcerated within three years of their release?

Hopefully, every lawmaker and committed citizen will support these proposed reforms.  Overcriminalization leads to mass incarceration, undermines race relations and ultimately keeps more people in poverty. We believe the proposed reforms will improve well-being for all Americans, especially the most disadvantaged.