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Pay no attention to the man behind the curtain

Procecutors: The Failure of Common Sense

By G.Patrick Callahan, Prisoner of War in America

Law can be a tremendous bore. It is tedious, time consuming, often farcical and usually about as interesting as a stack of stale crackers. Once you have been arrested, however, you either engage in the process or you lay like an ignorant slave under its lash. Because the reading skills of most Americans is so low - and this is particularly true of the inmate class - law is akin to hieroglyphics: indecipherable, as if laid down by the Pharaohs.

Actually, it is neither. Oh, they try - the attorneys and the legislators - this is one of the reasons they cling to Latin phraseology, words like in forma pauperis and non compose mentis and all the other Latin catch words that awe and amaze us. It's not that lawyers can speak Latin , but its use esoterically isolates plain understanding and conveys an element of mystery to the layperson. Part of this usage involves form and custom, but when added to the often overstuffed verbiage many legal authorities enjoy, keeps law confusing to the Average Joe, it keeps him intimidated and feeling helpless - it's an old ploy, it convinces him he needs professional help. It is a bit like the Wizard of Oz, so you have to look behind the curtain to see it for what it is.

The singular most harmful side effect of this country's ill-fated war on (some) drugs, aside from Constitutional erosion, has been the shifting of power - called "discretion" in legalese - from judges to prosecutors in state and, particularly, federal courts. This dramatic change came about suddenly with the Sentencing Reform Act of 1984, a prophetic year indeed. The subsequent US Sentencing Guidelines were actually implemented in 1987 and is called "new law" generically, by all concerned. The Sentencing Reform Act was a bad attempt - however well meaning - to cut down on disparity in sentencing, whereby on the East Coast a defendant might get a six year sentence for an offense and on the West Coast he might only get six months for the same conduct.

Congress did not like the way judges were running things, the thinking being that judges had far too much discretion and were arbitrary. There was element of truth in this, although it is a constitutional mandate that the judiciary is to remain strictly insulated from the legislative and executive branches of government, ostensibly removed from criticism and pressure from either. What has happened is a melt down of these three branches of government into an identical agenda: to look tough on crime, no matter what the collateral costs. The recent furor over New York District Judge Harold Baer, Jr., is a perfect example. When Judge Baer ruled that police had no probable cause to stop and search a vehicle that turned out to be loaded with drugs and drug proceeds, everyone on Capitol Hill was calling for his resignation. Bob Dole, at that time a presidential candidate, made political hay by his call for Judge Baer's impeachment. Even the White House got in the act: all contrary to Article I, Section 8, Article III and VI of the Constitution. [See also No. 81, Alexander Hamilton's treatise on separation of powers and autonomy of the Judicial Branch, The Federalist Papers, Rossiter, Mentor Ed. 1961.]

Judge Baer buckled under the pressure and with prestidigitation, made certain alterations in his original decision, thus ensuring a trial for the defendants who were doubtless, illegally stopped and searched. So it is a myth to believe that judges are immune from the furnace blast of opportunistic politics and all this tough on crime bombast: they have become task-masters for Congress and the executive branch. It is now a conspiracy of silence, with few notable dissenters, such as Judge Myron Bright of the Eighth Circuit, Juan Torruella of the First Circuit and Judge Richard Posner of the Seventh, who have each come out in forceful opposition to the sentencing practices evolved in the war of drugs. These courageous fellows are an exception to the general rule and, despite their charters, which ostensibly grants judges great autonomy and independence, most have been conspicuously silent as this dirty civil war plows millions of non-conformists and their families down to wreck and ruination.

This sort of judicial cowardice is not historically unusual: the US Supreme Court endorsed car searches, wire tapping and double jeopardy to enforce alcohol prohibition. German judges, cowed by the Nazi Party, meekly acquiesced to mass deportation and murder with decisions that were an intricate semantical dance underwriting genocide. The excellent film "Judgment at Nuremberg" reveals that country's tragic judicial submission to the State. We will get little help from the Judiciary, and how many times have we heard this: "While I'm reluctant to give you this 30 year sentence (and take your life and destroy your family), I just don't have any choice (if I want to keep my job)." Fact is, we have heard this too much. Judges in this country have dished out tens of millions of years in prison time to non-violent drug law violators during this war. Of course, the term "war" implies engagement, combat, being fired upon, and shooting back. Hype aside, this is a persecution rather than a war and for all the rhetoric, the rate of police killings in 1996 wasn't much higher than that of 1959 and, as usual, most were from domestic disputes, an ever present danger.

What we have gained by this hysterical shunting of discretion from judges to prosecutors is handing over unbridled power to those who are proven to be the least capable of using it sensibly. Prosecutors and their eager lieutenants the Probation Officers, are the worst qualified to handle "truth in sentencing" and the last ten years of the federal guideline system have been an orgy of injustice unprecedented in American law, perhaps slavery the sole exception. Ten and twenty year mandatory sentences for first-time, non-violent drug offenders is de rigueur. Prosecutors use such laws and guideline schemes like a bludgeon; they have effectively destroyed fairness­called "equity" in law­and common sense went overboard many years ago.

The basic tools provided to federal prosecutors, aside from limitless budgets, are the US Sentencing Guidelines and its attendant draconian drug penalty schedule, with the minimum mandatory sentencing legislation. These are separate mechanisms­you can get a minimum mandatory sentence without necessarily engaging the more draconian aspects of the sentencing guidelines, but when they work in tandem, a defendant's sentence is driven to ridiculous levels. He may do a ten year minimum mandatory sentence and then be faced with fifteen to twenty additional years for guideline entrance levels or enhancements added on consecutively. It is a lunatic machination, more worthy of a facist regime than an enlightened nation of cherished personal freedom poised on the threshold of the Twenty-First Century.

Plea bargains and coercive power are other prosecutorial tools: these inhumane sentencing laws can be used to convince even flesh and blood to turn informer against its own. Prosecutors deny they extort such cooperation, but in fact they most certainly do and each time this is done, friendships, associations and entire families endure the consequences. Lest one think this is exaggeration, read this:

It is common for federal prosecutors to threaten drug defendants with mandatory sentences unless they incriminate others. Many defendants decide to inform on their associates and friends in an effort to get a lighter prison sentence. This practice frays the bonds of personal trust and corrodes the community cohesion that might otherwise act a buffer to violence. ["The Real War on Crime," from the Report of the National Criminal Justice Commission, Donzinger, 1996. HarperPerennial.]

In other words, there will inevitably be retribution, but moreover, these practices breed mistrust and suspicion among a vast segment of the population. This is what police states do. Prosecutors also subvert the Constitution by making an implied threat of one's right to trial by jury, a Fifth Amendment guarantee. While it had traditionally been a right under the Constitution to have a public trial by a jury of one's peers, God help you now if you do: federal prosecutors win about 97% of their cases - in large measure due to a vast array of well funded tactics, many of them illegal - and if you lose at trial, you will get the absolute maximum sentence the prosecutor can give you. If you testify on your own behalf, and whether you lie or tell the truth - come sentencing time you are open for a charge of "obstruction of justice", in other words, perjury, which will net you an additional five years in prison consecutive to your sentence. However, if a prosecution witness lies, and they very often do, they are immune; totally immune. Each enhancement runs your sentence higher. Innocent people have been known to opt for a guilty plea rather than take such a risk at federal trial.

Chief Judge McNichols of the Eastern District of Washington made this point forcefully in United States v. Boshell, 728 F. Supp. 632, 637-38 (ED Wash. 1990). Noting that before the Guidelines, "disparities were controllable and tolerable because decisions were public and reviewable." He points out that under the current regime:

Congress has... shifted discretion from persons who have demonstrated essential qualifications to the satisfaction of their peers, various investigatory agencies, and the United States Senate, to persons [Assistant United States Attorneys] who may be barely out of law school with scant life experience and whose common sense maybe an unproven asset. [US v. Harrinton, 947 F.2d 956, 957 n. 10 (DC Cir. 1991)]

Add to this number the amount of prosecutors who are too inept to practice law beyond the security of a government agency and add to it those numbers who simply enjoy inflicting themselves upon their fellow man in the name of justice. We daresay that the total of conceivably defective prosecutors might well surpass those who possess a modicum of common sense and foresight. Or are these worthy traits simply gone: we have how arrested over ten million people for drugs in this country.

Because of the many options available to him, the prosecutor is free to introduce as much sentencing disparity into the system as he may choose. Prosecutors, sometimes for good reasons, sometimes for bad - just like some judges before them­have done just that. Every district judge has witnessed, and witnessed many times, the bringing of wholly disparate charges against defendants whose conduct is essentially identical, the consequences being that the judge is required by the guidelines to impose sentences that he may consider, or that objectively are, arbitrary and discriminatory in every meaningful sense. [United States v. Roberts, 726 F. Supp. 1359,1366 n. 46 (DDC 1989).]
One wonders whether the Guidelines, in transferring discretion from the District Judge to the prosecutor, have not left the fox guarding the chicken coop of sentencing uniformity. [Harrington, 947 F. 2d at 965 n. 5.]

The above commentary was made way back in 1989. What has ensued is the fox, in a kind of blood frenzy peculiar to genus vulpes, has maximized sentences for hundreds of thousands of non-violent, low level offenders. It has virtually turned the United States into a gulag and very nearly ruined the criminal justice system. Defendants who refuse to turn in their friends, relatives and associates, and those who elect a trial by jury, are routinely given decades of prison time, even for relatively small amounts of controlled substances.

In their zeal to enforce statutory law­the US criminal codes ­prosecutors armed with minimum mandatory sentencing and the Sentencing Guidelines, are actually destabilizing American society. Nearly six percent of the adult male population is now behind bars and three percent of the workforce languishes in prison. So many black males are incarcerated that it is affecting marriageability is the inner cities ["The Real War on Crime", the Report of the National Criminal Justice Commission]. So many people have turned State's evidence against their friends and relatives to receive less or no prison time at all that violence and revenge becomes inevitable; but moreover, like any police state, we are being turned into a nation of informers by a government that makes a federal model of personal betrayal. Were this happening on a small scale, involving for instance a certain amount of bank robbers or murderers, these policies might suffice, but it must be remembered that this is being done on a massive nationwide canvas affecting literally tens of millions of individuals. The D.A.R.E. (Drug and Alcohol Resistance and Education) program's greatest success may not ultimately be in the numbers of children it dissuaded from experimenting with psychoactive substances, but in the multitude of informers and snitches it produces. It is a bitter irony that the worry over the psychological health of the country, while focusing on illicit drugs, ignores not just the legal drugs such as nicotine and alcohol and valium and prozac, but actively encourages perhaps the most insidious rot a populace can contract: betrayal as a virtue. It was this we most decried about communism.

Although one rationale for reducing judicial discretion is to minimize sentencing disparities (different sanctions for the same offense), close disparities continue through the exercise of prosecutional discretion. Prosecutors' charging and plea bargaining decisions now set sentences. Unlike any sentences set by judges, however, prosecutors' decisions are unreviewable, and the criminal justice system lacks mechanisms to hold prosecutors accountable for their choices. In a regime of harsh mandatory sentences, moreover, prosecutors have even greater leverage in plea bargaining than in most criminal cases: the stark disparity between harsh mandatory sentences and the terms prosecutors can offer in plea bargaining leaves defendants little choice but to give up their fight to trial and plead guilty. "Cruel and Unusual: Disproportionate Sentences for New York Drug Offenders." Human Rights Watch, March 1997, Vol. 9 No. 2(B)]

While prosecutors actively encourage or coerce betrayal to make their cases, and not take them to trial-this is ironically called "cooperation"-they simultaneously and seemingly with no thought to fiscal consequences, put legions of peripheral and low level drug offenders away for prison terms that astound the Western World. Recently prosecutors in Atlanta, Georgia asked for and received a 30 year sentence for a Colombian housewife and mother of four small children on a money laundering charge. It seems the woman was storing a drug ring's cash in her home. The money laundering laws were made tougher not long ago and this was a muscle flexing exercise, however, it should give us pause to consider the wisdom of such harsh sentences. Including legal proceedings, 30 years of her incarceration will cost the American taxpayer about $1 million. If she develops serious medical problems, that figure will skyrocket. Her "job opening" was immediately filled, of course, and how many Colombian housewives can we lock up before we go broke? Once the FBI and DEA manage to lock up all the Colombian housewives engaged in laundering things besides clothes, do we then lock up all the Mexican housewives similarly employed? Does it make fiscal sense to imprison apparently limitless numbers of foreign nationals for decades at such great expense, to feed, house and clothe them, to care for their medical needs for dozens of years? Does it make sense to sentence a man to life in prison because his third felony was for possessing an ounce of marijuana or four grams of cocaine? Unsurprisingly, many prosecutors eagerly support this wasteful nonsense and relish sloshing buckets of taxpayer dollars down the rathole. While it may not bother prosecutors, it ought to bother the American taxpayer who has to foot the bill.

Egregious drug sentences have also persisted because the courts have not upheld federal and state constitutional prohibitions on cruel and unusual punishment. Although these prohibitions extend to excessive sentences, few drug offenders have succeeded in having disproportionately harsh sentences overturned as unconstitutional. The courts have failed to exercise their role of safeguarding individuals from abuses decreed by political majorities. Instead, they have deferred to legislatively dictated sentences, however draconian. New York's highest court, for example, recently upheld against constitutional challenge a sentence of fifteen years to life imposed on a seventeen-year-old girl convicted of a single sale of two ounces of cocaine. [Id. Human Rights Watch, Vol. 9]

It has been nearly 30 years since the Controlled Substance Act of 1970 and millions of Americans have been arrested and sentenced to tens of millions of years in prison. In order to make room for them, this country consistently releases repeat, violent offenders: rapists, armed robbers-even murderers. Prosecutors make cozy deals with so-called kingpins who turn in their underlings in exchange for little or no prison time. Friends turn on friends, brothers on sisters, and the Justice department cannot build prisons fast enough. It is drug war fever, the prosecution run amok, and it must be stopped:

It is difficult to believe that the possession of an ounce of cocaine or a ... "street sale" is a more dangerous or serious offense than the rape of a ten year old, the burning down of a building occupied by people, or the killing of another human being while intending to cause him serious injury. -Judge James L. Oakes, United States Court of Appeals for the Second Circuit.
Many US. Attorney's offices have 25% to 30% deadwood. If these people were in private law firms, they would have been on the street a long time ago. -US District Judge JP Stadtmueller, (ex-US Attorney), Forbes Magazine, March 15,1993.

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