Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness. They are members of a "total institution" that controls their daily existence in a way that few of us can imagine. "[P]rison is a complex of physical arrangements and of measures, all wholly governmental, all wholly performed by agents of government, which determine the total existence of certain human beings (except perhaps in the realm of the spirit, and inevitably there as well) from sundown to sundown, sleeping, walking, speaking, silent, working, playing, viewing, eating, voiding, reading, alone, with others. . . ." It is thus easy to think of prisoners as members of a separate netherworld, driven by its own demands, ordered by its own customs, ruled by those whose claim to power rests on raw necessity. -- Justice William Brennan, dissenting in O’Lone v. Estate of Shabazz, 482 U.S. 342, 354-55 (1987).

Tuesday, April 7, 2009

Loss of Faith

In an article in today's NY Times, "Judge Orders Investigation of Stevens Prosecutors," former Senator Ted Stevens is quoted:
“Until recently, my faith in the criminal justice system, particularly the judicial system, was unwavering,” he said. “But what some members of the prosecution team did nearly destroyed my faith. Their conduct had consequences for me that they will never realize and can never be reversed.”

Welcome to the club Mr. Stevens!

There is no doubt that the general public has "unwavering" support for the criminal justice system. Police officers, FBI agents, atorrneys general, and prosecutors are all assumed to be the "good guys" -- there is an overwhelming presumption in their favor.

This is further burnished by the fact that they usually have tremendous resource advantages over the typically hapless defendant, including a press release department that presents the government's point of view while the defendant typically is advised to keep his mouth shut. Thus the public for months or years only hears the charges against someone and the "truth" only comes out in a carefully scripted charade called a trial, in which

1. the jury already assumes that the person sitting in the defendant's chair must have done something wrong (otherwise they wouldn't be in trouble!).
2. the govt gets to present their case first (since, the theory goes, the burden is on them to prove their case)
3. the govt gets to present their case LAST in closing, although in theory this is only to rebut any defense arguments
4. the jury is not allowed to know what sentence a defendant is facing if convicted (this is important because "reasonable doubt" means different things depending on the consequences of being wrong if you are a juror). Most federal juries are shocked to find out the severity of the sentence given to defendants they have convicted and oftentimes simply give the govt the benefit of the doubt in complicated cases or convict on what they believe are lesser counts only to find out the defendant can still be sentenced as if guilty of the other counts (this is know as "acquitted conduct" enhancements).

The pollyannish view of our criminal justice system that so many share is to some degree necessary from a social point of view. I get that. A police state system that does not have the confidence of the majority of its citizens cannot function effectively. That is why what is happening in the Stevens case is so important.

I am convinced that most of what the criminal justice system (at least at the federal level) does is create the perception among the citizens that they are being protected from "bad guys." It doesn't actually matter whether the individuals prosecuted are actually "bad" or even guilty for that matter. What matters is that people believe that the government is doing something. The primary goal of most federal prosecutions is general deterrance; that is, successfully prosecute someone -- anyone -- for some alleged bad actions and then use the publicity from that prosecution to deter other bad acts.

A truly innocent individual, once convicted, has virtually no chance being believed because no one has the time or interest to give his case an independent review to determine if the jury was actually right.... we just assume the system works and leave it at that.

Unfortunately, the lesson that Mr. Stevens has learned -- this journey into the Rabbit Hole -- is a lesson that tens, if not hundreds, of thousands of citizens have already learned about the justice system. They, however, lacked the resources to fight and expose the improper conduct. Furthermore, if they do attempt to fight it, they will oftentimes find themselves punished even more.

There was significant prosecutorial misconduct in my case which I wanted to challenge. However, the consequences of failing in that challenge would have been disastrous so I made the only rational decision I could and fell on my sword so to speak in order to minimize the potential damage. I am still reluctant to talk about it because I am still on supervised release and fear possible retaliation. However, one day I will talk about it.

The larger story however is that THIS HAPPENS TO DEFENDANTS EVERY DAY and no one every knows about it. They take the plea deal, accept their sentence, the govt issues their self-serving press releases about how they are once again ever-vigilant in their prosecution of dangerous or fraudulent criminals and that this or that prosecution "serves as an example", yada, yada, yada..... And the press and public just eats it up.

Anyone who suggests that what happened in the Stevens case was the exception is a naive fool. I believe it is routine and widespread; it is just never caught because there is no one there to expose it.


Kathy said...

Amen Bill! All you said is so true!

Anonymous said...

Well written. As the wife of a former federal inmate, I can relate and share your views. This system is skewed and broken. Before our nightmare began, I was just as naive about our justice system and the government, gross prosecutorial misconduct, and then the BOP, a cruel and ugly monster in our midst. I'd like to add defense attorneys to that list. They are battling such a big beast that they give up the fight before it starts, their focus is not on justice, it's on damage control, guilt or innocence play a very small part in their defense strategies. It's too bad the general public knows nothing about "guidelines" until they're in it, especially if their role is juror. I would love to tell my husband's story here too, but as he is on supervised release, I cannot take that chance.

Bill Bailey said...

Thanks for your commment anonymous.

I'm not as hard on the defense attorneys because I think they are right to approach this as "damage control." Once you realize the system is not about right/wrong or justice/injustice, you can think more clearly about how to approach that system.

If, as a defense lawyer, you persuade your client that just because he is innocent (or trivially guilty) he should fight for "justice" then you may very well end up consigning him to a longer prison term.

I approach it now like a game of poker. Once investigated/indicted, it is like being dealt a bad hand. You can complaign about the unfairness of it all, but at the end of the day, you still have to play the cards you are dealt and the stakes are very high. To the degree that you are caught up in the "injustice," you will be unable to think soberly about the task at hand.

It feels good to fight and there is a certain pride in knowing you never gave in, but after several years in prison -- knowing you could have plead out to, say, several months -- that pride doesn't carry you very far.

I am still on supervised release also (hopefully not much longer) and so far no one has given me any grief over my blog. Early on there were a few concerns expressed, but I actually think most people who understand the system agree with what I am saying.