This piece is not about Stanley Cohen. For that you will have to wait for the play, the book, the movie or, better yet, the cartoon strip yet to unfold. Or try the “haters” section in Google.
However, one thing is for sure; after three plus decades as a criminal and political defense attorney and adviser to some foreign governments and a good number of national liberation and revolutionary groups I know as much about this thing called the U.S. criminal justice system and its profit-making prison industry as any politician, academic, journalist, jurist or attorney. Oh, yes, did I forget ?
As I write this piece. I am no longer Stanley Cohen, Esq. but rather, inmate # 19846-052 locked up as I am in a U.S. Federal prison camp. It’s not the first time I have been jailed as a result of my work or beliefs or activism. Besides my current internal exile for “impeding the IRS,” I served about a month in a Quebec prison in 1990 for seditious conspiracy for my work at Khanesatake (“Oka”) during the Mohawk standoff with the Canadian army. On that occasion, I was vindicated some two years later. I’ve also been arrested about another half dozen times or so on minor political charges arising from my own activist life all these years. And I am currently banned from Israel and Egypt and, possibly, Jordan and Kuwait because of my legal work and politics- seen by some regimes as dangerous to their “security.”
As an activist, social worker and attorney I’ve probably seen the outside– and now — from the inside, prison cells and courtrooms in this country and abroad enough times for several lifetimes. I’ve appeared before hundreds of judges and opposed even more federal and state prosecutors in the United States and overseas.
Although the criminal justice system in this country mystifies many Americans, horrifies others and, to most, is simply ignored as so much out of sight out of mind, it’s not at all difficult to define or to understand: by design, it targets certain people largely on the basis of color and class. It feeds on political dissidents- those whose politics or mere presence serve as friction unto the machine, or so-called whistle blowers who disturb the secrecy of the powers that be. In every sense of the word, it’s a vicious destructive machinery of state that sucks whatever decency remains in the marrow of this Nation.
Only the naive and those who believe that the earth is still flat can in 2015 honestly say that our criminal justice system is just at all. By design, from top to bottom, in all places, at all times, it pursues it’s intended targets with endless resources, cold hearts, and steeled, corrupt intentions.
Over a career that has so far spanned more than 30 years of criminal, “terrorism,” and human rights cases, I’ve represented thousands of accused in state and federal courtrooms throughout the U.S. and in international proceedings that have criss-crossed the world many times over. One example of this workload includes my traveling abroad overnight to spend days cross-examining a “protected” witness in a terrorism case with his testimony piped contemporaneously back, albeit in a different time zone, to overflowing federal courtrooms in Manhattan where the proverbial pin could be heard to drop. When done, I flew back to New York to continue the trial the very next day.
Overseas, my practice has brought me before courts and to prisons and detention centers on international criminal and terrorism cases in Romania, the Dominican Republic, Iraq (at the height of the bloody resistance) Palestine, Israel, and Peru to name just a few of the States where I have appeared. In South Africa, I worked on a case defending against allegations of so-called hate speech being prosecuted by some truly hateful people. I’ve served as a negotiator outside of the US many times including at the three month armed standoff at Oka between the Mohawk Nation and Quebec which was set off by a gun battle in which a Canadian cop was shot dead.
I’ve handled federal issues at trial and on appeal in the United States Supreme Court, seven different Circuit Courts of Appeal and approximately twenty-five District Courts throughout the United States from coast to coast. One such case raged on for more than twelve years appearing before the Supreme Court twice, with two Circuit Court briefs and arguments, including an en banc one before all fourteen judges of the appeals court, and two separate sentencing hearings some ten years apart.
As a Legal Aid Attorney in the South Bronx in the early eighties my cases ranged from mundane shop lifting charges to the defense of the “notorious” cop shooter Larry Davis and others who, like him, were prosecuted for murders in the day when the NYC body count seemingly soared higher than the pyramids. I have handled other matters in which the federal government sought the death penalty and one where my client was known to have committed nineteen drug related homicides. More than once I have done hearings in hospital wards including several in which I stood next to semi-conscious clients shackled to their beds recovering from police inflicted injuries, including gun shot wounds to their back.
I’ve huddled on the floor of a drunk tank in rural Walker County Alabama with a man sentenced to die who thought Jesus had sent me to save him; I’ve sat on broken metal benches with kids at Rikers Island in New York City who wished they were - no, not saved - but dead. In a massive federal prison complex located on a Texas military base, I’ve walked the halls of a “hospital” filled with hundreds of elderly disheveled women — many oozing blood from open sores– most rolling wheel chairs and breathing tanks while the more fortunate paced pointless circles round and round, dazed by pain medications forecasting their own impending deaths.
In Butner, at the men’s medical facility in North Carolina, just out of sight is the final resting place of dozens, perhaps more, of unclaimed men buried, not by name but by their prison number, all because their families were either long-gone or too poor to pay the thousand dollar fee to reclaim their loved ones for a proper burial at home.
In the Metropolitan Correctional Center in Manhattan, special housing unit floors nine and, now, ten south have for years been home to detained terror suspects– real and imagined– awaiting trials that are typically little more than rote show case political persecutions staged to appease the public and to show a strong face to presidents- republicans and democrats alike. There, counsel talk through walls of mesh wire to clients, mostly kidnapped from abroad and tortured, under the watchful eyes of guards in monitored meetings where the attorney-client privilege is so much just cheap overheard talk. Long before 9-11, a shark-tank like cage was built for my numerous visits with one “terrorism” client in particular at MCC who guards cackled at while he prayed on the floor.
This “security” game is, of course, played out over and over again throughout the United States wherever the President needs to earn points through costly and unnecessary Joint Terrorism Task Forces that mostly target 20 year old kids named Mohammed or Jamal who, lost in a world of social-network rhetoric, are swept up in sting operations orchestrated by government agents or informants who walk them down the hallway of a conspiracy just far enough to make breaking news on Fox.
Almost all end up with 25 year sentences for nothing more than idle talk and cop sponsored training. I’ve handled cases in courtrooms divided by unnecessary bullet proof plexi-glass shields which do little more than protect those charged with the most serious of offenses from the presumption of innocence. Who needs a jury when you send a message that the accused are so dangerous or deranged that the public must be separated from them in such a manner?
It is simply not enough to say that the U.S. criminal justice and prison systems are fractured without understanding the whys or the crossroads of its breakdown. How the nightmare of prison America can be undone does not require a brave new world at all; just a commitment to take some hard unpopular and dramatic steps- ones based upon humanity, not harm; hope not defeat; redemption, not retribution. We are not talking here about building a new weapon of mass destruction but rather taking one apart and quickly if we are to move forward in this country with a real sense of equality, justice and decency.
To challenge the cancer of our prison system demands in the first instance that we understand that the US prison industry can not be seen as some sort of compartmentalized tension between those that arrest, prosecute and judge and those that afterwards oversee a vindictive structural thirst for cruel and usual punishment. While the headquarters of the Department of Justice may be housed in Washington D.C. and the Bureau of Prisons in Texas in reality the process of charging, trying or extorting pleas from the accused are, in federal land, brought to you by the same people who oversee the prison process afterwards. A badge is a badge whether flashed by a DEA agent, an Assistant U.S. Attorney or a cop at the SHU- a prison special housing unit. There is after all no separation of powers issue here ~ the DOJ is the overseer, indeed, the masah to the BOP plantation that, ultimately, is owned by whomever sits at 1600 Pennsylvania Avenue- white or black, male or female.
Just as Barack Obama serves as the Commander in Chief of our country’s armed forces, so too, he is the grand overlord of the Department of Justice (DOJ) and the US Bureau of Prisons (BOP). You know, he’s the guy with the biggest badge of all. While the President nominates and Congress may approve both the Attorney general and the Director of the Bureau of Prisons, ultimately they answer solely to executive power, whim and priority.
Of course there are those out there right now squirming as they read these words yelling out ” no Cohen . . . its the law that they answer to.” Ughhhhh, that’s so much an empty fight looking for an argument; sort of like saying we are a race blind culture.
In reality, and in accord with well settled Constitutional principles, ultimately every federal prosecutor in the United States serves at the will and behest of the President. Indeed, the same is true for all broad brush federal criminal justice priorities. Of course, that is not to suggest that the White House plays a hand’s on role on a given case — heaven forbid, that would strike as so much naked nepotism (compare the treatment of Chelsea and Edward with Gen. Petraeus) — but rather, that the policies that pursue and swallow millions of the people of this country by federal law enforcement officers, prosecutors and prisons are very much either set by or greeted with the smiling stamp of approval of the White House occupant.
To be sure, though each US Attorney throughout the country is free to set standards and goal to implement those announced by his or her direct boss, the Attorney General, ultimately they are merely reflections of the political and economic winds blowing out from the West Wing. Thus, if the President says we must deprioritize drug prosecutions that’s what happens. If he says hands off the banks or their officers no federal agent will dare show up at Chase except to take a loan. If the so-called hacker group Anonymous turns their lap tops on, cybercrimes become the mantra of the latest White House press conference. Can it be long before Ddos (direct denial of service) becomes the 21st century counterpart to Harper’s Ferry?
If recent figures are true there are approximately 7 million Americans with felony records of one sort or another. If accurate, its simply shocking- that’s approximately one in five of us that have been disenfranchised on one level or another by state or federal courts throughout the United States. Before your panic attack ends, keep in mind that while the United States has less than 5% of the world’s population we have about 25% of its prison population. Currently there are 2,500,000 men, women, men and children, yes children, imprisoned in state, federal and local prisons. Of that total more than 250,000 women and men are serving federal sentences in prisons for which Barack Obama is, ultimately, the warden.
60 % of all federal inmates, approximately 150,000, are imprisoned in camps or low security facilities which, by their very nature, indicates that they have not been convicted of violent offenses or pose no threat of violence to the community at large.
Yet, they remain needlessly and expensively separated from families and communities at an average cost of $29,000 per year, per inmate as opposed to an approximate cost of $3,700 per inmate per year if returned to their families under community based supervision including probation and or home confinement or sentenced accordingly in the first instance. Approximately 60 % of all federal inmates are serving sentences for complaint-less offenses, many running into decades, for nothing more than getting high or helping others to do so. Another 10 % or so are low level “white collar” offenders doing sentences often running them into old age, if that’s not already the starting point as the cuffs are locked on their wrists.
Approximately 60 % of all persons imprisoned in federal prisons today are persons of color. Most are inner city young and poor- under-educated black and brown men. Many were drug abusers and the sons and daughters of addicts who, themselves, were imprisoned at one time or another in a vicious cycle of getting high and getting prison, generation after generation, mostly for offenses that in a healthy, caring society are understood to be and treated as purely health and mental health related issues-not crimes. Currently, there are approximately 4,000 federal prisoners convicted of marihuana offenses and little, if anything, else. In 2015 in a country where some three dozen states and the District of Columbia have now legalized marihuana for medical or recreational use, some three dozen of their citizens are doing LIFE sentences in federal prisons with no chance of release because of multiple convictions for possession or distribution of marihuana.
Although the Department of Justice has of late obtained several criminal corporate pleas involving banking crimes such as money laundering for drug cartels involving many billions of dollars worth of criminal transactions, none has involved a conviction of a person, be it a CEO, board member, president or manager of the offender institution. Logic would seem to dictate that a human being and not an elevator entered into these massive criminal enterprises yet none has stood before the court to answer for these institutional white collar frauds, and none has been forced to wave goodbye to their family as they are led away in handcuffs with their life and that of their loved ones left in shambles. Although the government has recouped billions of dollars in fines from the offending banks for crimes which threaten, indeed attack, the fabric of our society, deterrence it is not, as no prison yet exists that can house the 50 story corporate headquarters itself and the offender institutions get to write off the fines from their corporate taxes leaving it with no net loss at all and their licenses intact, free to steal and steal and steal again.
With his most recent, cheap fire and brimstone show, President Obama once again took to his orator’s pulpit to decry yet another US structural problem that somehow slipped through his executive radar screen over the seven years that he has crafted and overseen that very structure. My, my, he did however look just splendid in his smartly tailored suit with his sharp tongue but all too weak pen as he decried the problems of the US prison system which he, and not Congress, directly runs- pointing of course to the convenient excuse that these are problems he inherited almost, what, two full terms ago ? And the photo ops of the solemn Warden in Chief walking out of his Oklahoma prison that he recently toured to give hope to the hopeless he has imprisoned or kept jailed all these years surely inspired many tens of thousands of women and men across the country counting their lives in prisons not with the passage of birthdays or holidays but decades for non-violent offenses.
Is there any doubt that soon the walls of the White House will display a new photo of Obama hugging an elderly broken black man in the privacy of his prettied up cell whispering in his ear, “Have hope brother, soon freedom will be yours ” – a mere 24 years after it was snatched away for some drugs. Can it be long before that photo makes its way to the front page of an upscale magazine, where prison reform has now become this presidential campaign’s hip buzz ? When will that prisoner be greeted at the White House to receive a new Presidential pen used to sign off on a bill or two that in reality will be, very much, too little, too late? Will that pen find him a job, or a home or meaningful help or hope ? Of course not.
What has Obama done to undo the largest prison Gulag in the history of the modern world ? Many ask what can he do without Congressional oversight or approval to initiate desperately needed change in the way that we prosecute and imprison people and destroy lives. As the ultimate policy maker of the Department of Justice and its Bureau of prisons, a great deal.
Obama has sent more people per capita, mostly of color, for non-violent offenses to prison over the course of his almost two terms of shining and showing his badge than any of his predecessors. Although he recently commuted the sentences of some 44 prisoners, thus bringing the total of his releases to 88 during his reign, it remains but mist, not even a drop, in the proverbial bucket. Indeed, although math has never proven to be my strong point it would appear that the 44 inmates represent but one-sixtieth of one percent of the federal prison population and a spike in the heart of the 50,000 or so others who actually took the time to apply for sentence commutation, but were somehow overlooked though most satisfied the same criteria of those who won the release lottery. The demographics of the released prisoners is interesting not so much for what they say, and accomplished, but what it did not.
Thus, all of those released had originally been sentenced to decades or longer in prison for drug violations, most to be followed by ten years post-release supervision which includes reporting to federal officers on a regular basis, drug and employment monitoring, and severe restrictions on where an “ex-con” can live or go, with whom and for what purpose. In the event of a post release violation, a return to prison, typically for years, is a given, and simply a matter of a judge saying back you go- and little else. Excluding the 15 prisoners who had initially been sentenced to life, the average initial sentence imposed upon the others was twenty-five years- that’s three hundred months! Of those who received the presidential blessing, the average time served was approximately 16 years in prison with about 45 % coming from a camp, a medical facility or a low security prison- the rest were jailed in a medium or maximum security prison. 80% of those whose sentences were commuted were people of color, almost all black and most males. The average age was 48 years old.
There is nothing remarkable about these particular demographics. The nature of the convictions, the sentences imposed and actual time served, along with age, race, and prison placement factors are very much indicative of literally tens of thousands of federal prisoners currently jailed throughout the US prison system. So what was it about these particular 44 prisoners that explains their release, while the vast majority of those similarly situated, continue to suffer under draconian like sentences with terms and conditions that would make the devil blush with envy?
Of course, some will assume that because they were released, these 44 women and men in particular had exemplary prison records of accomplishment over the course of their internal exile while the many others, do not. It’s a leap of blind faith unsupported by the facts which clearly show that the vast majority of all federal prisoners do their time without incident or additional prison imposed sanctions.
However, if you’re still not convinced, let’s reduce the population of fifty thousand similarly eligible prisoners to say thirty-thousand who have attended education or drug treatment classes within jail (most are mandated), earned certificates of achievement (handed out like candy), and have not presented their jailers any disciplinary problems whatsoever, especially after decades behind bars. Others might also assume that these 44 had favorable resources awaiting them — family and friends within their communities– thus making the prospect for their successful reintegration most favorable, while others simply do not. Sorry, its but another straw (wo)man argument- inmates who are released to communities across this country are not free to set sail where and when they want, but rather are in fact greeted with stringent release conditions and supervision that are intended to make reintegration more likely and recidivism less so; for those who fail to comply, prompt rearrest and re-incarceration awaits with scant due process or cost to the government at all, save for their re-incarceration.
Indeed, it should be noted that while the real time prison sentences of those commuted recently will end this coming November 15th, almost all still owe 10 years of supervised release and those who violate that release can and will be returned to prison for upwards of ten additional years. Finally stands the shrill cry that our communities do not have the economic wherewithal to withstand a large influx of long imprisoned inmates who present unique problems and costly demands to communities already starved for necessary resources. Nice try: as noted, each prisoner released to community-based supervision, including home arrest saves the country more than twenty-five thousand dollars per year per inmate otherwise wasted on human warehousing behind barbed wire and high brick walls, which does little but feed the prison industry that is America. Ultimately, there stands the biggest challenge to prison reform and prisoner release in this country.
It takes little but an adept finger or two and Google to quickly discover the nexus between prisons, long sentences and the economic health and welfare that is largely rural America. Across this country stands a massive prison complex that pours billions into failing local economies through employment of many tens of thousands of guards, administrators and local contractors. Throw in the salaries of judges, prosecutors, court appointed defense attorneys, cops and an array of court staff, and mental health experts and my how quickly we see that the proverbial emperor does indeed have clothes- clothes sewn with the human stitch of largely poor and black or Latino urban Americans being prosecuted, convicted and imprisoned for the economic benefit of largely professional elites and rural communities.
Like the dust bowl of the depression era of the thirties, many of these communities would simply dry up and go away without the dark vast prisons that dot their countryside not far from the nearby farms and VFW halls that remain vibrant only on the backs of prison buses and prison walls.
The cycle is endless: buses in, buses out, drug cases in drug cases out in a never ending stream of liberty for sale. For far too long Americans by the millions, indeed, the tens of millions, have been swept up as so much human feed in a prison for profit industry that smiles only when bursting at its seams. Those seams are no stronger now with the recent show-boat commutations by President Obama.
Don’t get me wrong, I don’t begrudge Obama, his photo moment, or the family reunions awaiting the the 44 as they go home, if in fact they have families or homes left to go to after decades in prison- I just don’t understand why the 44 was not fifty or a hundred or five-hundred times as many, and why the release did not include all 4000 prisoners doing federal time for marihuana offenses. Can it be that the spector of thousands of prisoners of color and poverty released from prisons across this country would prove to be so much political suicide especially during a presidential campaign year as the stories of their release broke across the screen of Fox News and CNN ? Heaven forbid. Can it be that in 2015 race and class continue to be the trump card that determines who goes to prison and who does not? Who is released and who stays buried?
Long term, of course, remains the lurking question of why the need for high cost prison camps and low security facilities, at all, if those entombed there — some 60 % of all federal prisoners– necessarily pose no threat to society as a whole and can be punished, safely monitored and “rehabilitated ” through far less costly and onerous community-based alternatives while they live with and provide for their families.
While some will argue that because sentences are the unique purview of the courts — a separate but equal branch of our government– they should rarely be disturbed. Nevertheless, independent of the President’s lawful authority to commute sentences, the Director of the Bureau of Prisons (a presidential appointment ) also has the lawful authority to release prisoners, even en masse, through rarely used, but lawful, furlough procedures. These procedures, which permit for stringent community-based supervision, be it through halfway houses or home confinement, are an entirely discretionary alternative to prison and can proceed without interference from the courts. Why this function of executive authority has not been exercised with regularity and in meaningful ways, within the Bureau of Prisons itself, remains very much a mystery. Unless, of course, fear of political fallout has rendered this sweeping institutional power to be little more than an unused Presidential and BOP tease.
No less important is the nagging question of just how do so many persons who get swept up by the Department of Justice end up in prison at all — as opposed to probation or home confinement– let alone with the extraordinarily lengthy sentences they receive upon conviction.
Although volumes could and have been written about these core questions, as a starting point, it is important to note that only in the movies are the scales of justice evenly weighted or truly blind. Policy decisions are routinely reached by the President, transmitted to the Attorney General, and then forwarded to line federal prosecutors throughout the country regarding the types of crimes to investigate and charge and those to simply ignore, or go easy on. Thus, crack prosecutions, which fell disproportionately on inner city black and Latino youth were pursued with rabid obedience, landing offenders in prison often for many decades while well-heeled white corporate cocaine snorters who carried their mirrors for all to see, were rarely charged and, if convicted, sentenced typically to little more than probation.
Although the glaring sentencing disparity was ultimately undone with some nominal sentence reductions initiated by the Courts, today federal prisons remain jam packed with crack offenders while cocaine still runs like water on Wall Street and at ABA meetings for all to see.
While large US based banks, brokerage houses and multinational corporations have conspired with various criminal cartels across the world to launder money, skirt regulations and shun reporting requirements, under Obama, when uncovered, most have simply entered into civil consent decrees with large cash settlements and little more. Can it be that fines alone, even massive ones, can still buy justice in this day and age by those who can afford it? Indeed, just ask the corporate officers who approved of these billion dollar thefts and, when uncovered, agreed to hefty DOJ cash settlements, thereby ensuring no personal criminal liability for themselves.
Be assured, ultimately, the decision to sue and not slam these starched white-collar titans came not from the office of some Assistant US Attorney, but directly from 1600 Pennsylvania Avenue. Meanwhile so-called hackers have been targeted with a political vengeance from an administration that punishes whistle blowers whenever it has found itself to be embarrassed by leaks of dirty deeds that makes the infamous Watergate break in and cover-up look like a dime store heist.
At day's end, under the discretionary authority of the president and his DOJ appointees, those who expose this government’s wrong-doing get jailed for years, while those who perform it spend their weekends at the shore, sending campaign contributions to both political parties.
Indeed, no where is the executive’s authority over who to prosecute, and to what end, more painfully clear than in a host of so-called National Security investigations and prosecutions carried out under the Obama watch. Thus, while General Petraeus, the former commanding officer of US troops in Iraq and Afghanistan, and former Director of the CIA, lied to federal officers (a felony) after releasing a treasure trove of the most sensitive of national security documents to his lover (also a felony), he received but a misdemeanor conviction, limited probation and some community service.
Apparently, the Department of Justice was moved largely because it was not the specific intent of Petraeus to harm the United States, but simply – to get laid. Meanwhile, whistle blowers such as Chelsea Manning and ex- CIA Agent John Kiriakou, who released publicly far less sensitive materials than Petraeus, and did so only to bring illegal government practices to the light of day, received sentences of years in jail- in the case of Manning 35 years. Predictable, unlike Petraeus, their defense, namely, “I did not intend to harm the US by my acts” fell on deaf ears in the White House and at Justice Main. Although not yet arrested, Edward Snowden’s plea that his release of the largest illegal government surveillance program in US history was an act born of patriotism, and not treason, has likewise failed- he too faces decades in prison should he be arrested, even though the courts, Congress and, begrudgingly, the President himself, have since found or acknowledged that the subject matter of the Snowden leak clearly violated the law.
While political priorities during Obama’s presidency remain very much the prosecutorial fuel that drives the DOJ machinery in selecting who to prosecute, and who to leave alone, net result concerns at DOJ do grave damage to the cornerstones of our criminal justice system- a balanced adversarial system which, among other things, provides for the right to a jury trial and to confront witnesses.
As a result, unwarranted dispositions are often reached with people sent to prison for many years through desperate guilty pleas to avoid the possibility of even greater sentences should they go to trial and lose. To fully comprehend these factors is to understand that the 90 per cent guilty plea rate for the DOJ is not a good thing at all, or even indicative of success, let alone actual guilt as charged.
Simply put, under the watchful and approving eyes of White House policy makers, the DOJ today continues to exercise arbitrary, overwhelming power to deter trials, induce guilty pleas and craft draconian sentences where few are necessary, even less, justified. The DOJ rise to often untempered and destructive power is not hard to track.
Breaking with settled history, in 1987 U.S. District Court judges were essentially stripped of their almost limitless discretion to impose sentences based upon the given facts and circumstances of a particular case and the accused- be it by plea or after trial. At the same time, parole in the federal system was abolished thereby further diminishing the sentencing and real time discretion previously available to federal courts and prison administrators.
Until several, relatively recent, landmark Supreme Court cases, since 1987 federal judges nominated by the President and approved by the Senate were reduced to little more than numbers crunchers forced to impose sentences not because they were just or necessary, but because they were mandated by artificial sentence guidelines that essentially treated all cases and all accused alike. With a dramatic and dangerous shift in the scales of justice, overnight, prosecutors often with little experience of their own in the ways of the world, let alone criminal justice, suddenly became empowered in ways previously unknown.
Armed with little more than a guideline book and sentencing chart, Assistant U.S. Attorneys became empowered to dictate the outcome of most criminal cases through their ability to coerce excessive pleas, with mandated prison time, and promote enhancements that can be used as “relevant conduct” at the time of sentence. As a result, for for many years now punishment has essentially been meted out not by a court based upon its own independent view as to what would be a just and reasonable sentence under all of the attendant circumstances, but rather, prosecutors and capricious guideline considerations mostly under the unilateral control of the government.
Under the sentencing changes in 1987 came new, sweeping discretion for prosecutors to manipulate the adversarial system in dangerous coercive ways previously unknown or rarely used. Indeed, a criminal justice system long anchored on negotiated pleas and trials that permitted both sides to make their pitch to a neutral judge responsible for the imposition of just and reasonable sentences once guilt has been established, became one where prosecutors could craft and coerce a particular plea to control the sentences ultimately meted out by courts who were suddenly reduced to little more than rubber stamps. Even with recent changes in the sentencing scheme, judges across the country can still be heard to complain that they have no choice but to impose sentences even when and where they disagree with the mandated outcome.
Indeed, over the years, punishment long vested solely in the hands of the court, has increased dramatically through new mandated minimum sentences which can often move prison exposure from just several years, if that, to decades behind bars. Required upward adjustments (sentence increases) based upon one’s criminal history score — even for old and relatively minor offenses — have further tied the court’s hands when it comes to its once independent responsibility to see that justice be done.
For the recalcitrant target who demands her full day in court, including a trial by jury, vindictive prosecutors have learned to up the anti by over-charging cases and obtaining new indictments on the eve of trial with, still yet, even higher mandatory minimum sentences that can kick in upon conviction. Not ones to blush at their own creative use of legal extortion, federal prosecutors have learned to threaten to file charges against marginally involved loved ones of those who refuse to plead guilty and to add restitution and or forfeiture counts – that they would otherwise overlook – if one goes to trial.
Those additional sanctions can often bankrupt an accused and his family for the rest of their lives and leave their families destitute while a loved one spends years behind bars for non-violent offences. Finally stands the ominous “relevant conduct” hammer, always lurking not too far off in a federal prosecutor’s arsenal of cruel and unusual punishment. Under relevant conduct provisions, prison time can be further increased and dramatically so at the time of a sentence, not by allegations proven to a jury beyond a reasonable doubt at trial, or even acknowledged by an accused at the time of a given plea, but rather by the court alone which can find uncharged “related” misconduct to be credible. Under these circumstances years of imprisonment can be added to a given sentence on little more than unchallenged hearsay and rank rumor and by merely a preponderance of the evidence.
Prosecutorial abuse rings certain in the caseload of experienced criminal defense attorneys from coast to coat. Indeed, federal prisons remained packed with tens of thousands victimized by a system that is unduly weighted for the government, built on the back of coerced pleas with mandatory minimum sentences designed to deter the exercise of one’s right to a trial by jury. It’s all about a body count for federal prosecutors, and today their cemetery is overflowing.
Ultimately, that cemetery flies the flag of 1600 Pennsylvania Avenue. So Mr. President, the next time you plan a trip to a prison down South and a chance to embrace a lost life buried deep in one of your prisons for a photo op, and little else, on your way there, stop in at your Department of Justice and have a few words with your Attorney general about, pain, suffering and redemption. Thank you Mr. President, we have had quite enough speeches from on high about overflowing prisons. Stop it, now. You, and you alone, can and must do it.