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


Baltimore’s Problem, and America’s

Originally published at National Review by Conrad Black | May 6, 2015

The criminal-justice system is a disaster.

It would be ungracious of me not to acknowledge with gratitude the column on Sunday of my old friend Fareed Zakaria, citing several sources, including me, as he recounts the almost unmitigated moral bankruptcy of the U.S. criminal-justice system. As the Freddie Gray riots and indictments in Baltimore continue the fortnightly spectacles of fatal police excess that, with the eager amplification of the media, are creating the world-wide and not entirely false impression that American law enforcement is conducting a sea-to-sea shooting gallery, it is timely to review these problems, which are now decried from right (e.g., George Will) to left (e.g., Katrina vanden Heuvel). They extend from undisciplined police, through a rogue prosecutocracy infested with Torquemadas who can smoke anything past the constitutional heirloom of the grand jury and convict almost anybody by intimidating witnesses to inculpate the targets (with the choice between threats of prosecution themselves and promises of immunity for perjury), to mainly elected state judges dispensing draconian sentences and pandering to the law-and-order lynch mobs, to overstuffed prisons staffed by under-supervised unskilled labor who kill an inordinate number of prisoners in unconstitutionally bestial conditions. This is American justice today, unsuspected by Norman Rockwell, triumphantly championed by morons like Nancy Grace; it is the still largely unnoticed tragedy of many millions of ruined American lives.  TOP ARTICLES1/5READ MORESanders Invokes Obama’s Praise forCuban Education in Defending His Castro Comments

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

In the modern United States, the only reforms are those demanded by adequately large numbers of voters or adequately rich interests. There are 48 million convicted felons in the U.S., and they have tens of millions of relatives and friends, and while most of them are relatively unconnected and demoralized by stigmatization, or just relieved that their legal problems were long ago and they have partly or wholly surmounted them, those suffering the sting of injustice aggravated by gelatinously negative public complacency about the injustice of the system are very numerous and righteously upset. They cannot be far from where the previous waves of mass reform jumped off. Prior to smashing the barricades that restrained them, “uppity n*****s” and “mouthy women” and “angry gays” were starting to chin themselves on the need for militancy, no matter how personally risky, or at the least embarrassing, it might be. Of course, a large number of convicted people were actually guilty of something, unlike, simply by virtue of what they were, African Americans, women, and gays, but many innocent people have been convicted, and most have been over-sentenced, and all who have served their sentences are entitled to be heard about the systematic mistreatment that is so widespread in the U.S. justice system.

This is American justice today, unsuspected by Norman Rockwell, triumphantly championed by morons like Nancy Grace; it is the still largely unnoticed tragedy of many millions of ruined American lives.

Fareed Zakaria outlined the obvious proportions of the problem in his column: The United States has 5 percent of the world’s population, 25 percent of its incarcerated people, and 50 percent of its lawyers (who account for about 10 percent of the country’s GDP). Prosecutors win 99.5 percent of their cases, about 97 percent without a trial, and the country has six to twelve times as many incarcerated people per capita as comparably prosperous large democracies: Australia, Canada, France, Germany, Japan, and the United Kingdom. No sane, conscientious American citizen can be comfortable with these figures and their implications. In a word, the United States, the people that ordained for itself the Constitution that contains the Bill of Rights, has a somewhat tenuous claim to be a country subject to the rule of law, at least in criminal matters. And crimes include thousands of offenses, including, as George Will pointed out in a column in April, picking up arrowheads on federal lands or driving a snowmobile accidentally onto land protected by the Wilderness Act. Given the innumerable statutes and regulations with criminal sanctions, the mens rea element of guilt has faded and the old principle that ignorance of the law is not an excuse would not now be equitable in many cases.

RELATED: America Desperately Needs to Fix Its Overcriminalization Problem

For obvious reasons, there is a tendency to view the recent interracial police-inflicted fatalities as another manifestation of longstanding African-American grievances. But three times as many white Americans are killed by police and prison employees as non-whites, which confirms that minorities suffer proportionately more abuse from law enforcement, but African Americans and other minorities would short-change themselves, and be unjust to others, if they did not recognize this as an almost equal-opportunity problem, in which the constabulary, justice, and custodial systems disserve everyone, and no one is safe from such abuse. Nor will it quite do to sound the same old note of white insensitivity in high places in the Freddie Gray tragedy in Baltimore. That is a city where the majority in the city proper is African-American, where African Americans are in charge as mayor and chief of police, and majorities of city officials, elected and appointed, are African American. Whatever is judged to have happened in this case, it was not whites killing a non-white. No doubt, that is a factor in some incidents, but it would minimize the proportions of this immense and extremely dangerous problem to see it in these terms only, or even principally.

The whole U.S. criminal-justice system is now an immense problem and it gnaws, every day, at the soul of America.

Americans are promised their day in court, but, because of the public-policy adoption of a goal of unheard-of levels of imprisonment (advocated as passionately by such liberals as Robert Kennedy, Nelson Rockefeller, and Bill Clinton as by such conservatives as Richard Nixon and Ronald Reagan), the system could not possibly try a serious number of these cases, as opposed to just terrorizing defendants into pleading guilty and taking a dive, without completely clogging the system. There has been very little reform legislation in the federal government in recent decades in any field that is based on the traditional motive of people like Theodore Roosevelt and Woodrow Wilson, simply to make things work better (like TR’s Pure Food and Drug Act). Reform is demanded by groups too large or rich to be ignored. Victims of the excesses of the justice system certainly are such a group, but to avoid provoking a schismatic reaction in the country, they must cross all racial and ethnic lines and make it clear that they are not mollycoddlers of crime, and are not calling for indulgence of violent crime, but seek restoration of the Bill of Rights guarantees of due process, the grand jury as a serious filtration process, no seizure of property without just compensation, access to counsel, an impartial jury, prompt justice, and reasonable bail. The plea-bargain system will have to be drastically reformed and cooperating witnesses must not be immune to apparently well-founded perjury claims, and criminal cases should not be heard by elected judges. While this cannot be legislated, the media should rub the sleeping knots of 50 years from their eyes and go back to serving the country — by deploying a free press in service of free institutions, and not competing to lead the lynch mob every time there is a publicized offense.

RELATED: Annals of Injustice: The Libby Case and Other Horrors

Most trial judges should not be ex-prosecutors. Nor should prosecutors have an absolute immunity. The Thompson case, in which a falsely accused man was left in death row for 14 years to the full knowledge of prosecutors, who were ultimately excused from heavy sanctions by a majority on the Supreme Court, was an especially extreme case of this. So was the case against Senator Ted Stevens (R., Alaska), who was electorally defeated on a prosecution the Justice Department knew to be false, and the only serious penalty paid was by a prosecutor who committed suicide. The egregious Patrick Fitzgerald should not get a free pass for securing a conviction of former vice president Richard Cheney’s chief of staff Lewis “Scooter” Libby by misshaping the evidence of Judith Miller.

Sentences should be reasonable and some sort of commission should regularly sift through all the laws and regulations with heavy sanctions, cull and consolidate them, and attach to them penalties that are appropriate and are not just bludgeons used by prosecutors to extort false confessions of guilt and Stalinesque allocutions of self-condemnation. The entire process has become a national degradation that cheapens the value of American citizenship and disgraces the country and its fine traditions, and threatens everyone in the United States, or reachable by its authorities, even though in other countries.

#related#Not the least of the excesses of this careening juggernaut grinding people almost indiscriminately to powder has been its extraterritorial application, in which the State Department frequently gets behind the Justice Department and tries to muscle foreign jurisdictions. A striking example of this was the recent effort, clearly inspired by foreign-policy considerations, to extradite Ukrainian billionaire Dmytro V. Firtash from Austria for alleged bribery in India in a titanium deal that never occurred, but in fact because of his political activities in Ukraine. The indictment coincided with the visit to Ukraine by assistant secretary of state Victoria Nuland, to try to persuade Firtash’s friend, former Ukrainian president Viktor Yanukovych, not to abandon a close political and trade agreement with the European Union. The State and Justice departments denied any such motive, but the Austrian judge found otherwise, and ordered the release of Mr. Firtash, who had posted $130 million. The judge ruled the attempted extradition and trial a spurious abuse of justice and of the reputation of the United States as a civilized and law-abiding country. No one is claiming Firtash has an uncontroversial record in the Ukrainian natural-gas business, but there is no obvious U.S. claim against him.

The whole U.S. criminal-justice system is now an immense problem and it gnaws, every day, at the soul of America. Where has the Supreme Court, the ultimate and always sanctimonious guardian of the Constitution, been while the rights of the people have been gutted? Generations of its justices do not have the excuse of having to face voters whipped up by tele-demagogues and gimcrack politicians. They don’t have any excuse.

— Conrad Black is the author of Franklin Delano Roosevelt: Champion of Freedom and Richard M. Nixon: A Life in Full. He can be reached at [email protected]


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.