07/18/2013 05:34 EDT | Updated 09/17/2013 05:12 EDT

You Call This Justice? How America Became a Prosecutocracy

The saga of Stephen Nodine has taken a new turn with the unctuous statement of the Republican Party chairman in Alabama that he would never approve a "felon" as a candidate, in this case, for Congress. Those who follow the publicized instances in the torrent of injustices that thunders through American criminal courts on the conveyer-belt to the bloated and corrupt prison system that is the soul and essence of the contemporary U.S. justice system, will recall the Nodine case. It possesses an unusual singularity of official irregularities from its inception to the present. Nodine, the former Mobile County Commissioner was charged with murder after the death of his frequent and intimate companion, Angel Downs, from a gunshot wound in her driveway in 2010. Nodine was a coming figure in the Republican Party in Alabama, and professed to have been concerned about his girlfriend's mental state as he drove away from her home following an argument.

The police at first concluded that it was a suicide case, as did the examining doctor from the coroner's office. The gun was in the hand of the deceased and the bullet had entered cleanly and parallel to the ground into her brain, with no signs of struggle, and the doctor who performed the autopsy said she was waiting to be shot, which is the standard condition of the corpses of such suicides, and that all the evidence was consistent with that finding. The district attorney, Judy Newcomb, brought the case straight to the grand jury without an arrest and proceeded in almost unprecedented haste, to coincide with a tight re-election campaign. (She was not re-elected.) There are notes of a meeting with the doctor who performed the autopsy in which he was placed under intense pressure by the district attorney and her entourage to change his finding from probable suicide to homicide, which he refused to do.

The ensuing trial failed to convict Nodine, though it ran him out of money and threw him on the mercies of the threadbare legal aid system, and the investigation prior to trial did turn up evidence of his being a drug user and owner of an unauthorized firearm in a manner prohibited to public officials. As a consolation prize for their failure to convict him of murder, the prosecutors obtained a sentence against him of 15 months on those and related charges to which he pleaded in the usual coercive manner of the American plea bargain, (for which prosecutors would be disbarred in any other civilized country). They threatened him with an alternative charge: assistance to, or negligent failure to discourage, a suicide.

Nodine now says that he is paying for ethical and character failings but remains strenuous in his professions of innocence on the main charge. Illustrative of his determination to rebuild his life, and of the robustness of his denial of any role in Ms. Downs' death, he threw his hat in the ring for the Republican nomination to fill a vacancy in the House of Representatives when an incumbent retired to take a position in the state university at Tuscaloosa. At this point, the state party chairman unctuously announced that the party would not give its imprimatur to a candidate who had been convicted of a crime.

Stephen Nodine philosophically stated that in the current climate and practice, Americans should not go to courts for justice but to the social media. Unfortunately, he has cancelled a taping with the self-important television medical advisor Dr. Phil, who periodically inflicts on his inexplicably large number of viewers the incandescent falsehood that the United States has the best justice system in the world. The American prosecutocracy terrorizes the entire country while most of the media cheer it on. American prosecutors win 99.5 per cent of their cases, 97 per cent without a trial, unheard of success levels by the standards of other advanced countries, and the U.S. has six to 12 times as many incarcerated people per capita as the closest comparable democratic and prosperous societies: Australia, Canada, France, Germany, Great Britain, and Japan. The United States has five per cent of the world's people, 25 percent of its incarcerated people, and 50 per cent of its trained lawyers, who consume 10 per cent of its GDP. This is not what Madison and Hamilton and Jay and other authors of the Constitution meant by a society of laws, and they would be appalled at the extent to which the Fifth, Sixth, and Eighth Amendment guaranties of due process -- of the grand jury as an insurance against capricious prosecution, of the illegality of seizure of property without compensation, and of an impartial jury, prompt justice, access to counsel and reasonable bail -- have been put to the shredder. There is no presumption of innocence; the judges are usually ex-prosecutors and continue unofficially in that role, there is a huge procedural advantage for the government, which is, unlike in any other serious jurisdiction, the last to speak to the jury.

So the Alabama Republican Party chairman's sanctimony is misplaced, because a large number of people who are convicted are not guilty. There are 48 million Americans with a criminal record in the U.S, including the immediate former president of the United States (and leader of the Republican Party). Even allowing for the fact that probably a third of these convictions are far-off and unstigmatizing offenses such as George W. Bush's DUI, that means that about one fifth of the adult male population are designated felons. This is impossible, as a matter of justice. One fifth of male adult Americans are not criminals and everyone knows it. The Republican leadership, and the Alabama state chairman must be on the fringe of that group, should get off the law and order bandwagon which their party started and rode, but which is now crowded with the entire political class from left to right, and demand rights for the 48 million outcasts who have been ground to powder by the justice system. Is this self-righteous idiot of an Alabama Republican chairman the real face of the party of Lincoln? And those tens of millions who have been wronged by the system, and almost all of them have, because even the guilty are grossly over-sentenced, should assert the traditional American right to redress, like African-Americans, women, gays, and all ethnic groups as their numbers enabled them, have done.

The Stephen Nodine case is a disgrace from the beginning to the present, and the Republican Party should not be legitimizing his oppression, much less pandering to the ignorant with sanctimonious claptrap about the moral turpitude of the persecuted.


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