The Criminalization of Almost Everything

The Heritage Foundation is sponsoring a seminar on Tue, June 17, 2008 titled:

"Go Directly to (Federal) Prison: The Criminalization of Almost Everything"

I love the title because I have come to believe that any sufficiently motivated prosecutor could put anyone in prison for the violation of some federal law. In other words, if I randomly selected a citizen and assigned a federal prosecutor the task of investigating and prosecuting that individual, the scope (and ambiguity) of federal law and prosecutorial discretion and the severity of federal sentencing is such that he could put that citizen in prison. Even if that citizen if absolutely innocent, the plea bargaining leverage a prosecutor has would induce almost any rational person to accept a short prison term in order to avoid the expense of a trial and possibility of a very long sentence.

Robert Jackson, US Attorney General, made a famous speech almost 70 years ago that included the following remarks:

The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

There is absolutely no doubt that the scope of federal law has expanded in almost every respect (especially drug and white collar crimes) and, with the development of the sentencing guidelines, Jackson's comments are even more true. A federal prosecutor is the most dangerous individual in America. That is not meant to impugn the prosecutorial function or the integrity of prosecutors in general; it is simply meant to draw attention to the virtual unchecked and unaccountable power that federal prosecutors have.

It is only human nature that concentrated, unchecked power will be abused.

The solution I believe is what this seminar addresses -- eliminate the vast majority of federal laws and return criminal enforcement to the states where the Constitution expected it to reside.

See http://www.heritage.org/press/events/ev061708b.cfm for more details.

UPDATE (6/22/08): I just listened to the video of the seminar at the link above and I was startled to discover that these guys agree with me. The law professor from Louisiana actually said that every individual in this country is indictable, subject only to the discretion of a prosecutor. Also, everyone involved in the criminal justice system except for Congress, DOJ and presidential staffers know the system makes no sense. The reason the system exists is because federal politicians discovered that federalizing offenses makes for good politics because no one wants to be portrayed as being "soft on crime."

Anonymous Letter From Prison

I received an anonymous letter the other day from an inmate in FPC Pensacola who apparently remembers me. Quite interesting and unexpected. Let me share a few excerpts:

I just thought I'd let you know that I am aware of your web site and support it. There are a lot of people here who do. Three that don't particularly like it are the warden, the A.W. [Assistant Warden], and the C.M.C. [Case Management Coordinator I think].

Hmmm....

First, there were some guys there who knew I was writing a blog and, from what I could tell, it made them nervous. They didn't trust me and thought I was just going to get guys in trouble. I even had one inmate tell me I was dangerous. Typical inmate paranoia.

However, several guys have since reported to Pensacola after reading my blog so maybe they passed the word that my blog was ok.

Second, as for the warden, assistant warden and CMC not liking it, I don't know why. Maybe just typical BOP paranoia! They just don't like having the light shined (?) on their prison. They are used to being in control and hate losing it. Welcome to the club!!

I think I have been very fair to BOP and the staff at FPC Pensacola. I have not used my blog to take cheap shots at anyone. Sure, I occasionally tweak or make fun of a few of the staff (Arnold and "Peanut" in particular) but nothing mean-spirited. Most of them are just doing a job.

I never met the warden, although I heard a lot of negative rumors which I have NOT repeated here because I could not confirm them, and I only met the assistant warden a couple times briefly and she seemed like a nice enough lady. I don't know who the CMC is. If anyone thinks I am doing something wrong here, I haven't been told about it. My PO knows about my blog and doesn't have a problem with it.

I have reserved most of my criticisms for the justice system that put many of these guys in prison. These are criticisms that many COs and prison staff will agree with. In fact, a case worker told me in a conversation just before I left: "We have the greatest country in the world but the worst justice system." People who work within the system (judges, probation officers, defense lawyers, BOP staff) all know that what I am saying is true. It is only people on the outside who have no clue and I think it is very important that they understand the reality of the situation.

The letter included a complaint which I will repeat here because it was a common complaint I heard:

There are some things going on that I thought might interest you. I've filed a BP 8.5 against the admin here. As you know (or you may not have known) the rooms in Dorms B and C are way overcrowded by law. The BOPs Program Statement says we are to be allowed 45 sq ft per inmate in rooms in a camp. Here at Saufley we have about 23 sq ft. They are right at double occupancy.

The windows are blocked by beds and lockers which is a fire escape. I've also considered writing the navy fire chief and asking why he is allowing this. There is nowhere else in teh BOP with this problem. Even A and D dorms are not overcrowded.

A little background is in order.

BOP has an Administrative Remedy Program (Program Statement 1330.13) which "provides every inmate the opportunity to seek formal review of a grievance concerning virtually any aspect of his or her confinement, should informal procedures not achieve resolution." The formal forms are BP-9, BP-10, and BP-11, each one representating an escalation to the next level within BOP, with BP-9 being the warden of the prison I believe.

A BP-8.5 is a semi-official form called a "copout." I can't find official reference to the number "8.5" anywhere so, while I heard the term a lot in prison, I think it is an unofficial term referring to the raising of an issue with the appropriate staff person (usually your case manager) in the hopes of resolving the issue before initiating a formal grievance which BOP staffers HATE. The next step would be filing BP-9 with the warden.

The issue of overcrowding in Dorms B and C existed when I was there. 6 bunk beds (12 men) lived in rooms approximately 12'x20' as I recall, which comes out to 20 sq ft per inmate. I was told that these rooms used to only have 4 bunk beds (8 men) which would come out to 30 sq ft per inmate.

I have done a little research. According to BOP Program Statement 1060.11, the "rated capacity [of of a dorm room in a minimum security prison] is computed by dividing the total space of each sleeping area or unit by 45 square feet." (See Paragraph 7.c.(4)(b)) If this is true, then a 12'x20' room is 240 sq ft. Divided by 45 gives 5.33. Rounding up gives 6. Therefore it appears the rooms are only rated for 6 inmates and in fact there are 12 assigned to each room.

It appears my anonymous friend is correct, based on my reading of the Program Statement.

As for the windows being blocked, the two bunk beds in the middle of the room DO partially block one or both of the two windows in each room. In addition, a short locker is usually located below the window. While not blocking the window, it would restrict access to the window if you needed to escape, although I am not sure a window is considered a legitimate fire escape. You would have to jump from a second or third floor window. In some cases you would be able to jump onto the roof or canopy of an adjacent one-story annex below. The official fire escapes are the two doors at each end of the dorm (the primary doors and stairs a located in the front middle of the dorm -- see map at bottom of the page).

The reason he mentioned the Navy Fire Chief is because Pensacola FPC is located at Saufley Field, part of the Pensacola Naval Air Station. The buildings are subject to Navy regulations as well as BOP regulations. (That is why HIV-positive inmates are not allowed... it is a Naval, not BOP, restriction.)

As for the remedy, I don't know the answer. In other words, what if this guy wins his complaint? What happens next?

It's not like the warden can do a whole lot about it. I'm sure ALL the staff know they are overcrowded but what do you do when BOP sends them to you.

If you are an inmate in an overcrowded camp, would you prefer to go to a higher security prison that isn't overcrowded??? I don't think so (and I suspect, my "friend" would not be happy if BOP's solution was to put him in a "real" prison -- be careful what you ask for, you might get it!). I would take an overcrowded "camp" over an undercrowded "medium" or "low" any time.

In county and state jails, inmates are oftentimes released due to overcrowding but, as a statutory matter, I don't think early release is a possibility for federal inmates, although perhaps release to home confinement or halfway house might be an option (although I've heard halfway houses are overcrowded also).

If I find out any more about how this gets resolved, I'll let you know.

Craig Giles Letters from Prison

I know it's been a while... I hate that.

There was a recent article on cnn.com that included letters from a Craig Giles who is spending 9 months at the camp in Jesup, GA. (When I left Pensacola almost a year ago, the warden was splitting time between Jesup and Pensacola. At least that is what I was told the reason was he wasn't around very often.)

You can read excerts at

http://money.cnn.com/2008/06/02/news/newsmakers/morris_gile_letters.fortune/

For those who have read my blog, you will notice a pattern of familiar themes about prison life and the inequities in the federal justice system, especially as they pertain to the unbelievably harsh sentences of first-time, non-violent drug offenders.

His last letter to his wife:

"It'll be interesting to see if I've changed at all when I leave here. Besides the inability to walk. In a weird way, I think I may come out of here more confident. I will certainly be less concerned about what people think of me. . . .I know I'll still suck at golf. "

I made a similar comment at one time about confidence and I think it is true. I certainly don't care as much what people think of me.

However, my golf game actually was better when I got out. I'm down to a 7 handicap... woo, hoo!