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


When District Attorneys Attack

Originally published at National Review by Kevin D. Williamson | 5/31/15

(Mirko Vitali, Visivasnc/Dreamstime; Illustration: NRO)

The GOP should turn its attention to prosecutorial misconduct.

As the old Vulcan proverb has it, “Only Nixon can go to China.” And only Nixon’s political heirs can fix the persistent — and terrifying — problems that continue to plague this country’s law-enforcement agencies and prosecutors’ offices.

Exhibit A: Orange County, California.

The sunny Southern California county with a population surpassing that of nearly half the states has a Republican district attorney, Tony Rackauckas, and a big problem on its hands: Its entire prosecutorial apparatus — all 250 lawyers in the district attorney’s office — have been disqualified from participation in a high-profile capital-murder case following revelations that the office colluded with the Orange County sheriff’s department to systematically suppress potentially exculpatory evidence in at least three dozen cases, committing what legal scholars have characterized as perjury and obstruction of justice in the process.

One of the questions involves a secret database of jail records related to confessions obtained via informants. Sheriff’s officers denied the database even existed, and their deception was abetted by prosecutors, leading an exasperated judge to issue an order noting that they “have either intentionally lied or willfully withheld material evidence from this court during the course of their various testimonies. For this court’s current purposes, one is as bad as the other.” The judge unsubtly recommends prosecution.

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

The database tracking inmates’ movements around the jail and the reason for those movements is significant, because Orange County law enforcement and prosecutors were in the habit of placing targeted suspects in proximity to criminal informants, who were rewarded with reduced sentences, favors, or money — payments in some instances ran into the six figures — for helping put together cases against jailed suspects. This practice is illegal. It is one thing if a suspect in custody speaks about his crimes and an informant comes forward to report that confession; it is another thing to operate a program under which the interrogation of suspects is effectively delegated to incarcerated felons who are secretly on the county’s payroll. The lack of present legal counsel is only the beginning of what is wrong with that practice.

To operate such a program is ipso facto a violation of the law and of ethical standards for jailers and prosecutors both. To lie about it is a serious crime. It may turn out to be a lucky thing after all that these defective prosecutions will probably open up a great many jail cells: Orange County is going to have to put these sheriff’s officers and prosecutors somewhere.

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

The despair-inducing details of the case can be located in the pages of OC Weekly, but the climax so far is this:

Superior Court Judge Thomas M. Goethals made an unprecedented, historic move after announcing he’d lost confidence in Orange County homicide and gang prosecutors to obey simple legal rules of conduct. Goethals, a onetime prosecutor and campaign contributor to the DA, recused Rackauckas and his entire staff from People v. Scott Dekraai, the capital case stemming from the 2011 Seal Beach salon massacre.

What this means is that the prosecutors’ office is, in effect, an example of that other O.C.: organized crime.

Prosecutorial misconduct is a plague upon these United States.

A secret cache of electronic records containing information that is potentially embarrassing to political figures, and the criminal handling of that database, is of course an all-too-familiar story to those of us who have been following the saga of Hillary Rodham Clinton’s e-mails, which were originally in digital form, were converted into paper printouts, and are now in the process of being redigitized before they are handed over to investigators, a process that only the naïve would believe exists for any purpose other than tampering with the evidence. The Orange County authorities had been using their database, called TRED, for a quarter of a century. Prosecutors were aware of it, and the sheriff’s officers who testified before Judge Goethals had made thousands of entries in it. Yet they could not quite recall its existence when honor, duty, and the law obliged them to do so.

This is not a one-off. Prosecutorial misconduct is a plague upon these United States, from the vodka-pickled Democratic political jihadists in Austin to California, where judges complain of an “epidemic” of prosecutorial misconduct abetted by Democratic attorney general Kamala Harris, who is seeking to replace retiring Barbara Boxer in the Senate.

RELATED: America Desperately Needs to Fix It’s Overcriminalization Problem

The Democrats have long been acculturated to the climate of corruption that attends government agencies that are largely free of ordinary accountability, where a carefully cultivated lack of transparency shields operatives from scrutiny and normal oversight. Republicans can rouse themselves to action, if only barely, when this involves the federal Internal Revenue Service or Environmental Protection Agency. But deference to police agencies and prosecutors is so habitual among the members of the law-and-order party that they instinctively look for excuses when presented with obvious examples of police misconduct, and twiddle their thumbs in the 99 percent of cases of prosecutorial misconduct that do not involve a Republican elected official.

Only the Republican party has the credibility and the political capital to take on the difficult task of reining in rogue police agencies and abusive prosecutors.

But only the Republican party has the credibility and the political capital to take on the difficult and sure-to-be-thankless task of reining in rogue police agencies and abusive prosecutors — and they may as well take a look at our scandalous prisons while they are at it. Some Republican leaders, notably Texas’s former governor Rick Perry, have been active and energetic partisans of reform, largely under the banner of the excellent Right on Crime campaign. But this is not really a job for presidents or even governors: This is a job for mayors, city councilmen, district attorneys, sheriffs, and police chiefs. In the bigger cities, Republicans are thin indeed in those ranks. But that is not the case in Orange County. In Orange County, Republicans have no excuse.

Democrats may have ruined Detroit, Baltimore, Cleveland, etc., and they are well on their way toward doing the same thing to Los Angeles, Philadelphia, New York, etc. If Republicans want to show that they can do better, then fixing the mess in Orange County, a community more populous than Chicago, would be an excellent place to start.

— Kevin D. Williamson is roving correspondent at National Review.


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.