Over-prosecution Meets Mandatory Minimum Sentences Meets the Drug War

“Our government has seemingly forgot the age old wisdom that in war, the first casualty is always the truth.” – Richard Paey

 All I can say is that lucky the Jena 6 youths did not commit a victimless drug offense. Then they would be looking at some serious hard time that not even Al Sharpton and a legion of protesters could get them out of. 

Case in point is the truly heartbreaking story of Richard Paey. After countless years of criminal prosecution and 3 years in jail (where ironically he was given far stronger doses of pain medication then he was accused of possessing), Paey was finally released from jail last week only thanks to a criminal pardon by the Florida govenor himself.

You see Paey was given a mandatory 25 year sentence and $500,000 fine for possessing 100 Percocet.  Much to his determination and credit, he refused the plea deal that would have forced him into 3 years of house arrest and 5 years of probation, but ended up being convicted by a jury anyway.  That’s when his mandatory minimum sentence was imposed.   

The Florida cases of Richard Paey and Penny Spense only highlight the ever-increasing absurdity and draconian nature of the War of Drugs.  One of the few common-sense organizations that seems to even give a damn about this issue is the Families Against Mandatory Minimums (FAMM), whose website correctly points out “Two decades after the enactment of mandatory sentences, these laws have failed to deter people from using or selling drugs: drugs are cheaper, purer and more easily obtainable than ever before.”  One has to agree, for it seems that the DEA has accomplished little nor has made a single correct decision since it was established and made Elvis a honorary DEA agent.

The Richard Paey case is but one example of the absurdity and cruelty of our current drug punishment policies.  I just have to wonder what is happening to those people not fortunate enough to be showcased, as Paey was, by major media outlets such as the New York Times and 60 Minutes. 

Do these sentences come close to being justified and making sense?  Is this how we really want to treat someone who makes a mistake in life and sold drugs?  Do they truly deserve to have 25 years of their life taken away?  Before you answer, perhaps consider that one day that person may be your daughter, your friend, or other loved one.

Over-prosecution and the Jena 6 (Million)

The “Jena 6″ 

Last week’s tale of the Jena 6 is a news story that went largely unnoticed (except for social-media sites like Digg) until 20, 000 people showed up in a small southern town for a protest.  But when it did finally notice and weigh in, the AP wrote a surprisingly well-balanced piece.

As the article shows, the real issues in Jena are complex and nuanced, but the questions raised by the protesters are indeed valid.  And unfortunately, they are nearly identical to the story of Shaquanda Cotton that I commented on in this post. 

But I will repeat them here once again for emphasis, based on the primary themes of the Jena 6 protesters:

1. Are African Americans treated differently by the criminal justice system?
   1. Are African Americans charged with harsher crimes?
   2. Are African Americans given harsher sentences if convicted?
2. Is there an epidemic of criminal overcharging by prosecutors that most severely affects minorities and the poor?
3. Are local authorities (over) using the Justice System as a tool to resolve trivial matters? 

“De Minimis Non Curat Praetor” – “The Law is not Interested in Trivial Things“ 

Regardless of ones opinions of the racial issues in Jena, at least one issue becomes obvious: the problem of over-prosecution.

No denies that these 6 Jena youths deserve some sort of (hopefully non-judicial) punishment for their misdeeds in beating up a hapless white southerner.  But I think most rational people would see the local DA’s felony charges of “attempted murder” and “assault with a deadly weapon (a shoe in this case)” as unnecessarily excessive. 

I guess gone are the days when a local police officer might make a misguided youth write a lengthy apology letter and pay damages for such smallish offenses.  Gone too are the days where attorneys remember their law school training and the concept of “de minimis” – that there are actually things too trivial to be addressed by the legal system.

But excessive charges are really just something that is now built into the modern day justice system.  Sure, sometimes prosecution and defense meet in the middle, but sometimes they don’t.  When they don’t, the criminal convictions and punishments handed out by the Justice Systems become disproportionately harsh.  Ultimately ruining the lives of those affected.  And those affected are disproportionately male, African American, and poor.

“Ubi Injuria, Ibi Remedia” – “Where there is a Wrong, there is a Remedy.”

So how do we solve the crime itself of minority over-prosecution? 

The first step to solving most problems is measurement.  Do we even measure the race and income levels of those prosecuted?  Can we compare prosecutions and outcomes based on race?  You fill out a federal race survey form when you apply for a job, why not make investigators, DAs, and judges fill out a similar form when someone is investigated, charged, convicted, and sentenced.  Let’s start collecting some statistics, tracking these disparities and their sources, and quantify to what extent these disparities truly exist.

Then how do we solve the larger problem of over-prosecution in general?

This is a tough one.  The prosecution system derives maximum benefit from maximizing conviction rates and punishments.  So one possible solution is to have better educated and trained grand juries, justices of the peace, and local magistrates who stop petty crimes from advancing in the criminal justice system to begin with.  Right now, these preliminary checks in the system amount to little more than rubber stamps.  Raising the burden of proof that one must present these bodies could be one solution, but might be difficult in practice.  Giving local police and justices of the peace tools that allow them to exercise non-judicial punishments might be another solution.  

The real and somewhat more difficult solution is quite frankly for everyone in the justice system to exercise a bit more restraint and common sense.  Now, how do we write a law that guarantees that?

The Jena 6 Million 

There are many millions more just like the Jena 6 in our criminal justice system right now.  For relatively minor offenses (mostly drug convictions), they face excessive charges, draconian punishments, and felony convictions that change the context and potential of their lives forever. 

Now is the time to examine the epidemic of over-charging and over-prosecution.   Until we do, youths from Jena and the rest of the country will continue to enter our prisons at an ever-increasing and alarming rate. 

A Ham Sandwich even a Grand Jury could not Indict

It seems that a panel of public citizens in New Orleans, i.e. a grand jury, has finally stopped a bit of prosecutorial zealotry not seen since the exploits of Durham’s Mike Nifong. 

For even though a prosecutor can usually ”persuade a grand jury to indict a ham sandwich,” they were somehow unable to convince a grand jury that a Doctor and 2 Nurses who gave pain medicine to their dying patients during the aftermath of Katrina had murdered their patients with “lethal cocktails.”

Wow, it requires some pretty twisted logic to label murderers of the very health care workers who stayed at their posts and cared for their patients in the most extreme of circumstances.  All this while they were abandoned by all levels of government in the outside world.

Now maybe the prosecuters can go after the real criminals – from the workers who abandoned their posts during the storm to the ineffectual bureaucrats who all effectively fiddled while Rome flooded.   

Evil Ex-Felons – Don’t Vote

To a fair amount of outcry (given the closely contested nature of this state in recent elections), Florida has recently made the decision to allow ex-Felons - i.e. those who have served their punishment – to regain their right to vote.

I guess I learned a lesson in civics by reading this story – I didn’t even know that-with the exception of federal firearms restrictions-ex-Felons permanently lost their citizenship (right to vote).  So I guess it is just (now) Florida and 8 other states that now allow some mechanism for re-enfranchisement of ex-Felons.

To me not allowing ex-Felons to vote seems a little counterproductive.  For this segment of the population probably knows far more – and at a much more intimate detail – about the workings and the machinery of government than any other group.  They certainly have more knowledge than your average high school civics student – well at least about the Executive and Judiciary Branches anyway.

And just maybe this is why the government is perpetually lowering the bar on what is serious enough to constitute a felony.  Shove a hall monitor (felony abuse of a public servant), neglect a pet (felony animal abuse), use an open-access wireless network (felony computer access) – and you too can be stricken from the voter roles and no longer be a “problem constituent” that can vote me out of office.

So who are these evil felons?  I’ve written about a few of late, but let me add a few others:

Nelson Mandela
Chuck Berry (multiple convictions)
Martha Steward
Tommy Chong (of Cheech and Chong Fame – at age 65 – ironically enough for “felony conspiring to distribute drug paraphernalia” – i.e. selling ordinary glass of the wrong shape)
Shaquada Cotton (16-year-old hall monitor shover)
Desre’e Watson (a 6-year-old kindergarten student)
…and every political revolutionary that ever existed – think George Washington

Sounds like these people should have the right to vote, have ’bout you Jeb?

Systematic Child Abuse, by Design

In what U.S. institution could a massive campaign of child rape take place and have it go unnoticed for many, many years?  The Texas Youth Commission (TYC) Juvenile Corrections System.  In fact, it probably still goes unnoticed.

Perhaps I was expecting more outrage, perhaps maybe expecting that someone would see that these truly are 2 of the most vulnerable and exploited groups, children and prisoners, and that someone would feel more of a sense of compasion and urgency.  Guess not – there is that Britney and K-Fed thing going on.

When national stories about Shaquanda Cotton first appeared last month, they did not even reveal the depths of depravity in this System – just the individual view of one participant.  Who knew that even this extreme case was actually a fairly mild example of the malevolence that this system was capable of?

But probably the most Orwellian aspect of which is this:

That even to be considered for release before their 21st birthday, these child inmates had to first admit their guilt and give up any right to appeal.  And yet noone saw this as an unreasonable and unconstitutional requirement?

Where was the independent review of these fundamental procedures that placed so much power to abuse in the hands of so few?  Certainly nowhere to be found in Texas – where the only good criminal is a dead criminal – regardless of age or innocence.

Disclaimer: Don’t Read this Email

Quite a few years ago, I noticed I started seeing legal disclaimers everywhere.  Software licenses that were larger than novellas, product users manuals that contained more legalese than actual product information, and then curious email disclaimer attachments that were many times longer than the emails themselves.

For some odd reason, the concept of email disclaimers seemed somehow especially ridiculous – even by the already warped standards of the modern office space.  That someone would send me something I didn’t request and then establish many conditions for using this information.  It all seemed rather OfficeSpace-esque to me.  Perhaps along with the disclaimer the email trailer could ask: “Is this good for the company?”

It is refreshingly honest that even a website set up to promulgate this meme – EmailDisclaimers.com admits “The disclaimers added to the end of emails are not legally binding.” 

Huh? A legal disclaimer that has no legal basis?  What purpose could it possibly serve then?   Increase your required network bandwidth?  Act as a minor legal speed-bump?  Make your company sound letigious? 

I liked some of the disclaimers so much I figured I get into the act and attach my own silly one (with language actually borrowed from a typical software license) to the bottom on my emails.  Here is the one I used:

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS DOCUMENT IS PROVIDED ON AN “AS IS” BASIS AND THE AUTHOR DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMANCE WITH DESCRIPTION, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AUTHOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OR LOST PROFITS WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE EMAIL PRODUCT , EVEN IF THE AUTHOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE AUTHOR´S CUMULATIVE AND ENTIRE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE PURCHASE PRICE.

I tried using this disclaimer signature – but people must have thought it was serious and no one questioned it or saw any humor or irony in it - or maybe they just thought they’d get sued if they replied.

But just to show that this in not merely a US phenomenon, Jeffrey Goldberg from the UK lists various incarnations of these he’s seen at UK companies.

I liked Jeffrey’s stance that it is quite fine for a company to say: “this email is the opinion of the author and not the company” but that other disclaimers serve little purpose.  Especially since companies don’t attach similar disclaimers to non-electronic, paper mailings. 

Another, better approach might be to simply provide a web link to whatever litigious language/contract/”Terms of Use” a company wants to promulgate and force on people.

Information is a corporate tool that can cut both ways – how does a company allow its employees unfiltered communication with the outside world yet shield itself from the consequences?  Sorry, but email disclaimers are probably not the easy answer to this very difficult and complex question.

U.S. Epidemic of Incarceration and Sentencing Alternatives

OK, one more entry on the U.S. Epidemic of Incarceration and then on to more pleasant topics…

And admittedly, it is not very “pleasant” to think of mostly young, minority men, rotting in prison and themselves being robbed of potentially the most productive years of their lives. And it is certainly not “pleasant” to think about crime victims.

But, we must find some way to better balance the needs of these 2 interest groups. Often the debate stops immediately, and quite compellingly, with “What about the victims?” or to quote Helen Lovejoy from the Simpson’s: “Will someone please think of the children?”

In order to move past that argument, let’s assume the rest of my comments pertain strictly to victimless crimes – recall (from my last post) that they are the majority of those incarcerated. Of course to do this we have to accept that there are in fact victimless crimes – that a Hollywood actor who snorts Cocaine is not responsible for the murderous crimes of a Columbian Druglord. But hopefully, most people are able to disambiguate between the two.

Furthermore, as we continue to speak about non-violent offenders, can we agree that:

1. There are segments of the prison population who do not need to be there

a. Society derives more benefit from having individuals pay taxes as productive citizens versus consume taxes as a prisoners.  Prison is the most expensive form of Welfare imaginable.

2. Prison actually increases criminality

a. This should be common sense. If you take someone who is a little bit misguided – lock them up for a couple of years with folks who are a lot misguided – what type of person do you think you will have in the end? (if you don’t believe this, see the story of Lionel Tate)

b. Do more convicts = less crime or more crime? Because of the complex variables involved, contrary to what most politicians tell you, this statement is almost impossible to prove either way. So let’s stick to the common sense approach.

3. Prison should be a last resort after other options have been tried

a. Today, there are already compelling alternatives to prison: restitution, fines, house arrest (with an exemption for work hopefully), and boot camp just to name a few. So why does our prison population continue to swell. Are these alternatives being used when, or as often as, they should?

So, can we send fewer people to prison? Is there a technologically and socially feasible solution to the problem of over-incarceration and the ever-growing prison population?

Can science or technology contribute to the solution? Certainly, movies like the very powerful A Clockwork Orange have led to some skepticism. Thus, so far, Ankle Bracelets and “SuperMax” prisons aside, there have been very few contributions of science to the field of criminal justice.

But consider a combination of several different approaches:

1. Modern Tracking Systems
   1. We can pinpoint and track just about anything, just about anywhere on the planet – down to a $10 UPS package. Can’t we track individuals who submit to be monitored?
   2. Instead of just monitoring position/location. Also monitor with voice/cell communications – so that someone being monitored can be reached at any time
   3. If you really need to be Big Brother with someone with a drug or alcohol problem, while you are combining a GPS and Cellphone and Ankle Bracelet throw in some sensors to sniff the air for traces of the stuff.  They do this now with car interlock devices that you have to blow into to start. 
   4. Rather than just passively monitor individuals, provide alerts when someone goes in areas that they probably shouldn’t (e.g. known drug areas)
   5. Create parole officers who are essentially high tech prison guards without walls. If the shipping guy from the Nextel commercial can ask “Who’s agitating my dots. Can’t a parole officer see and ask “Who’s agitating my parolees”
   6. I am certainly no fan of a surveillance society – but if it is a choice between having .7% of the population in prison or under electronic surveillance – I’ll pick the surveillance every time.
2. The Laws of Credible Threat and Immediate Consequences
   1. ABC Primetime had a great show on how they were able to get an entire office to lose 20 pounds using a credible threat
   2. So can’t we come up with alternate credible threats before prison must be used
3. Derive a more graduated scale of punishments
   1. So there are alternatives for someone who has a technical parole violation other then sending them back to prison for the rest of their sentencing term.

While it simply is not possible to write the complete solution to this large problem in one page, it is nonetheless a solution that we must start to more earnestly seek. Continuing to imprison offenders for victimless offenses and destroying them along with their families will not serve the long term interest of our nation.

It is an imperfect world and criminality is but one part of that imperfection. But we should not make this imperfect world worse with misguided policies.

Land of the Free? And Home of the Brave (New World)

I’d like to examine the factors behind the conclusion of my last post.  Namely, that, in the last hundred years the U.S. has imprisoned more of its own population than any regimes other than Pol Pot and Stalin.

So are we really just

A) A bunch of criminals that deserve to be locked up?

B) A bunch of overly harsh authoritarians?  

C) All of the above?

 

These primary factors seem to be driving these high imprisonment numbers:

• “Tough on Crime” – System that focuses on punishment over rehabilitation

By far the largest influence on imprisonment rates is the simple fact that we as a nation value punishment over rehabilitation.  When we set policies and prioritize resources, this philosophy drives nearly all other decisions and outcomes.  OK, so we are no Saudi Arabia -where we lop off body parts on the slightest whim-but we are not exactly the Netherlands either.

• “Tough on Crime” – Mandatory Sentencing Programs and Harsher Guidelines 

Primarily designed as a tactic in the “War on Drugs” and as a (over)reaction to a few overly-lenient judges, legislatures enacted Mandatory Sentencing Programs that have dramatically swelled prison populations.  “Three Strikes” laws are no-doubt also a factor.  People forget that, punishment aside, prisons were primarily designed to keep violent people away from society, but today most of those incarcerated are non-violent drug offenders. 

• Prisons as Economic Assets – a Jobs and Massive Building Program

No longer considered NIMBY’s, many communities (mostly disadvantaged and rural) now view prisons as economic assets with very few drawbacks.  The economic benefits of prisons are many: construction, employees, purchasing services, and prison industries.

• Higher Rates of Crime for Some Categories

Like Australia, we also have roots as a Penal Colony.  So let’s face it – we as a nation are more criminal for some categories of crime.   Thus, the U.S. has a much higher rate of murder and rape than other countries.  But these offenses are a small percentage of the overall number of people incarcerated.  For more common crimes, like assault and theft, the U.S. is actually lower than comparable Western countries. 

• High Recidivism Rates

Somewhat related to a higher crime rate, an alarming statistic is the fact that 2 out of 3 people on parole will be readmitted to prison within 3 years.  1 out of 3 people (50% of the number returned) are readmitted to prison for technical parole violations (failing to report to their parole officer for instance - where all you usually need is a Judges order).  This is a 700% increase since 1980. 

• Built-in Rewards for more not less

In government, like most enterprises, you are rewarded for doing more not less.  Prosecuting more crime, leads to more staff, higher budgets, and ultimately higher pay for whoever is at the top of the food chain.  Imagine if local police stations were given bonuses for sending few cases into the judicial system – do you not think they would figure out alternate ways to solve things at the community level?  But pure self-promotion aside, certainly no government official ever wants another Willie Horton situation and no one wants to release someone who is clearly a threat to the community.

• “Overcharging”

Overcharging is the dirty little secret of the criminal justice system.  It is the built-in acknowledgement that because most cases will eventually be plea bargained that prosecutors feel they have to “overcharge” for additional offenses.  Overcharging is when you take a simple crime – say stealing a lawnmower – and charge the person with far more serious offenses.  So for instance, in my state, when someone is charged with theft that person is almost always charged with receiving stolen property (because didn’t they also receive it when they took it?).  It’s a win-win situation for prosecutors – they get to meet in the middle sometimes and make going to trial even more risky for the defendant.  One of the more egregious recent examples of this came from Steamboat Springs, CO where 2 college graduates received 6 months jail time for taking trash.   

 

Conclusion:

 

So what are we to conclude?  Are we a bunch of degenerate criminals or harsh authoritarians?  Like most things the answer is probably somewhere in the middle.  That is if we as a society ever attempt to answer this question at all. 
 

Unfortunately, we as a nation don’t have a very good track record on important issues that affect forgotten segments of our population – remember that 20% of impoverished children still do not have health insurance.  And they haven’t even done anything for society to hold a grudge against them yet.  Oh well, I guess they can get free health care when they go to prison – and more and more of them will end there if our policies don’t change.

America – Land of the Free…ah…Incarcerated

Scooter Libby’s predicament and public and painful run through the prosecutorial gauntlet has me thinking about the criminal justice system.  While odds are pretty good that Scooter will have a Presidential pardon and a job at Halliburton before he ever has to do a day of jail time, the other 1 in 32 Americans will not be so lucky. 

That’s right folks – 1 in 32 American adults (over 7 million) are in jail or on probation – while 1 in 136 (2.2 million) Americans are behind bars. In fact, the U.S. imprisons more people than any other country.  Not just in terms of per-capita ratios/percentages but in raw numbers – more than far larger (and not to mention repressive and totalitarian) China and more than India.  The ratio/percentage comparison figures with these countries paint a far worse picture (China and India have quadruple the population of the US).   The incarceration rates are even more alarming when you look at the rates for minorities (3.2% of all African American adults are in prison - and they are 44% of the U.S. prison total). 

Last month, Pew Charitable Trusts‘ Public Safety Project released a disturbing report on the state of U.S prisons.  Some of the findings: 

• The U.S. incarcerates more people than any other country.  2.2 Million (1.5 million in state/federal prison and 750,000 in county jails). China ranks second with 1.5 million incarcerated.
• The U.S. leads the world in the incarceration rate (737 prisoners per 100,000 people) – the next-highest is Russia (607 per 100,000)
• National spending on corrections has jumped from $9 billion in 1980 to more than $60 billion today.
• The prison population will increase by a further 13% in the next 5 years

My country – the one I was always taught to believe was a free and open society – imprisons more people per capita than any other regime in modern history except Stalin. How could this fact go largely unnoticed by all but a small charitable trust?  Unnoticed I suppose – unless you happen to be that 1 person in 32.

“Well, Isn’t that Special?” – Special, Yes, Prosecutor, No

Everyone else is talking about the unfortunate Scooter Libby so I might as well add to the discordant din, but hopefully with the added value of cutting to the krux of the matter.

 

It doesn’t take a legal expert to know in advance that jurors like to see guys with plucky Ivy League names like “Scooter” thrown in jail.  So with the jury’s verdict there are very few legal merits to debate here.

 

But let me first admit, that though I’ve tried, I neither understand the Scotty Libby charges nor the defense for that matter.  Apparently the jury felt the same way, because they needed 10 days and countless poster boards and even more Post-Its to deduce some coherency of the events.  Yet, give me and the jurors a break, I doubt less than 20% of the populace in 1974 (and much less today) even understood the charges against Richard Nixon and they were subjected to years of news coverage.

 

So, the only meaningful thing I can possibly extract from this episode is the same thing that I learn every time a Federal Special Prosecutor is appointed. 

 

That is: “Special Prosecutors are bad.”

 

Do you hear me Special Prosecutor? “Bad, bad, bad!” “Bad political lap dog!” “I should roll up a legal brief and hit you on the nose with it for soiling our federal justice system.”

 

So with that unbiased and high-minded remark, allow me to further the discussion by offering a laymen’s definition:

 

Federal Special Prosecutor – a prosecutor with unlimited resources who can’t stop investigating until someone is charged with something (no matter how unrelated to the original allegations).

 

So, for example, take a normal prosecutor, say like Durham’s Mike Nifong, give him a vague mandate, unlimited time, unlimited funds, and a large staff and tell him to just go start investigating people until he finds something wrong. 

 

Is there anyone with a modicum of common sense that doesn’t see this as a bad idea?

 

So what do you do when something is a bad idea?  Well, if you are the government, the one and only thing you ever do is change the name.  In this case it was changed from “Special Prosecutor” to “Independent Counsel” to the current “Special Counsel.” 

 

Dystopian science fiction works offer many characters who are comparable to modern day Special Prosecutors.  I think the most fitting in this case is Jack Lint played by Michael Palin in the Terry Gilliam film Brazil.  Jack works for the Ministry of Information’s Department of Information Retrieval as a civil servant/torturer and he loves his work.  As if the Brazil comparison could not possibly get any more apt, Wikipedia reminds me that “The machinery of Brazil has no personality and exceedingly poor quality control…bureaucracy is ruthless, tyrannical, and without feelings toward the people is claims to serve.”

 

If I may borrow the Church Lady’s catch phase: “Well isn’t that special?!?” – a typical “Special Prosecution” that is.