01/18/2012 06:50 EST | Updated 03/18/2012 05:12 EDT

The "Snitchocracy" of the Justice System

It is an appalling system and no one in America is safe from its destructiveness, often capriciously directed by morally corrupt officials enjoying an absolute immunity. In this election year, no one who is audible has spoken of any of this. There are 48 million Americans with a record, and about a million more every year. The reckoning is coming.

One of the benefits of blogging here and elsewhere is the volume of well-informed and enlightening messages that pour in. And one of the (less numerous) benefits of having been wrongly convicted and sent to a federal prison, where I now reside (for a few more months), contemplating the blessings of American justice, is to compare notes with others who can believably claim to be aggrieved.

My column here two weeks ago about the Morton, Stevens, and Thompson cases, generated an unusual volume of direct comment to me (as a prisoner, I only have access to emails, not the Internet). I promise not to become the pub bore about this, but the quality and volume of the messages I have received seem to justify airing some of the reflections that have come in.

I am grateful for all civilized correspondence, don't receive much that isn't, and respond to almost all people who contact me. A regular writer, who is a prominent public defender, and one of the minority of people in that line of activity that I have heard of who is not a Judas goat for the prosecutors, bullying his indigent clients into plea bargains with the prosecutors the terms of which the prosecutors then ignore as they seek stiffer sentences, has written about a pending firearms case.

A military veteran, dismayed at financial and marital problems, made a primitive explosive device in a small pipe for the purpose of committing suicide. He thought better of it and called the confidential crisis line of the Department of Veterans' Affairs. He was taken to a mental hospital, treated appropriately, and has recovered his will to live. But the Bureau of Alcohol, Tobacco, Firearms, and Explosives got hold of it (despite assurances of confidentiality for crisis line users), and have charged him with improperly manufacturing a dangerous device, though it was never contemplated to be used, and would not have been effective, against anyone but himself. This beleaguered veteran is facing four 10-year prison sentences. This is not justice, but is not untypical.

Among cases I have glimpsed are some in which fairly prominent South American drug offenders arrange for impecunious Central Americans to go to pre-arranged drug busts, plead guilty, and become feathers in the caps of officials, take five or so years in the comparative ease of a federal low security prison, and receive a pay-off from the prominent incumbent prisoner, who gets a sentence reduction for inculpating others.

This is how the "snitchocracy" works in the justice system; the logical culmination of an ethos that exalts the whistle-blower, and from rape to undisclosed corporate intentions, presumes the guilt of anyone who is denounced. Almost every aspect of the War on Drugs is a fraud and is routinely described as such, even in sober publications such as the Wall Street Journal.

Among other practices that have been highlighted to me recently are the use in sentencing of "relevant conduct;" the secrecy of probation officers' sentencing recommendations; and the ways any proximity of firearms are used to aggravate offenses.

In the first of these, a person can be acquitted of most charges, but if the judge (and a very large number of them are ex-prosecutors who retain that mind-set), decides that the prosecution has made its case by the civil standard of preponderance of evidence (balance of probabilities rather than the criminal requirement of proof beyond a reasonable doubt), the effect of the acquittals can be reversed in the sentencing.

This is an outrageous concept that makes a mockery of the entire distinction between civil and criminal law, as criminal penalties are imposed on civil findings of wrongdoing, and in the teeth of jury acquittals which should, at the very least, produce a very strong presumption of innocence by any criterion.

The second point permits judges to rely on probation reports in sentencing without the defendant having any sight of the probation office report and recommendations. The defense thus has no ability to reply to anything in the probation report. It is a Star Chamber, where people are judged on the basis of unknown allegations and possibly even new, unsubstantiated factual claims; there is no limit to what might be in such reports, since there is no accountability for their content. This is a contravention of the most fundamental guaranties of American due process and constitutional rights, a violation that would not be attempted, much less tolerated, in any other civilized country.

While American law enforcement agencies are vocal advocates of tightened gun control, the prosecutors and courts exploit the comparatively widespread distribution of firearms in the United States with unbecoming zeal. A person in a state of supervised release may be returned to prison if he goes to dinner at the home of a friend who has a long-unused gun in his attic.

Someone who uses, or just possesses, a firearm in furtherance of (that is while committing, whether the gun is displayed or not), a drug trafficking crime incurs a mandatory five-year sentence for a first offense and a mandatory 25 years for any subsequent offense, with no requirement for a conviction on the first before being charged with subsequent offenses. Thus if there are three alleged offenses charged at once, the prosecution can confidently demand 55 years in prison on which, under present federal rules, the maximum allowable reduction is only eight years and three months, nearly 47 years for a first conviction.

Bureau of Alcohol, Tobacco, Firearms, and Explosives routinely do stings and set-ups to accumulate these charges, trade the cancellation of one for a guilty plea, and obtain grossly excessive sentences.

If the defendant appears to have the means to pay for a serious defense from a rapacious American lawyer, he is apt to have his assets frozen on the basis of a false FBI affidavit in an ex parte proceeding, claiming that his resources are ill-gotten gains, (as I did, all subsequently debunked by the jury). The criminal charges are then brought, freezing the civil proceedings and the defendant, unless he has untouchable assets in another country, is defenseless against the appalling system.

Marijuana is the greatest cash crop in California and 42 per cent of Americans have been marijuana users, but tens of thousands of them are convicted in dry conspiracies, where there are no drugs nor any money, just the flimsy denunciations negotiated or extorted by prosecutors, and heavy sentences result. Drivers of delivery vehicles in marijuana cases, who do not profit on the basis of quantum of sale, and are ignorant of the quantity of marijuana in their vehicle, are subject to sentences of 15 or 20 years.

So are people who sit in their homes and download what is deemed to be child pornography, without paying for it or sharing it with anyone. The material is probably objectively deviant and disgusting, but such activity, especially when the object of a cyber-sting operation, is not compatible with traditional notions of individual liberty.

It is an appalling system and no one in America is safe from its destructiveness, often capriciously directed by morally corrupt officials enjoying an absolute immunity. In this election year, no one who is audible has spoken of any of this. There are 48 million Americans with a record, and about a million more every year. The reckoning is coming.