In the current issue of Commentary, there is a symposium of 43 knowledgeable people who discuss whether they are optimistic or pessimistic about America. In the current edition of The New Criterion, the eminent British historian Andrew Roberts, now a U.S. resident, assesses similar points in a lead essay about how benign America has been as the superpower, and how keenly it will be missed if superseded in that role by China.
Nowhere in either interesting section of either magazine is the appalling state of the U.S. justice system mentioned as symbolic or indicative of the country’s problems. Very adequate attention is given to the uncompetitive deterioration of American public education, to fiscal irresponsibility, and certainly to the shortcomings of popular culture and the media.
I try to rise above the fact, known to most readers, that I write from a federal prison where I have been sent for a total of 37 months, for crimes I did not commit, and after all 17 counts against me were abandoned, rejected by jurors, or vacated by a unanimous U.S. Supreme Court. I have amply described my legal travails elsewhere and refer to them here only as disclosure.
The United States has six to twelve times as many incarcerated people per capita as Australia, Canada, France, Germany, Japan, and the United Kingdom, all prosperous democracies. The U.S. has a much higher percentage of successful prosecutions, a lower hurdle to clear to prosecute (with rubber-stamp grand juries), a greater range of offenses, heavier sentences, and a higher recidivism rate than any of those other countries.
As Sen. Jim Webb of Virginia wrote in his essay “Criminal Injustice” two years ago, either those other countries are less concerned with crime than the U.S., or Americans are more addicted to criminal behavior — both preposterous suggestions — or the U.S. justice system is not working well.
There are 48 million people in the United States with a “record,” many of them based on ancient DUIs or disorderly behavior decades ago at a fraternity party and other unstigmatizing offenses, but still a severe inconvenience to them when they travel abroad or their names are fed to almost any information system; and millions have had their lives effectively ruined. The U.S. has 5 percent of the world’s population, 25 percent of the world’s incarcerated people, and 50 percent of the world’s lawyers, who invoice almost 10 percent of U.S. GDP (around $1.4 trillion annually). In the mid-1970s, the U.S. had about 650,000 people in mental institutions; today, it has only 50,000. Prisoners cost $40,000 per year to detain, and some states can no longer afford it. The conditions of hundreds of thousands of prisoners are grossly and shamefully inhumane. (My own are not.)
The Fifth, Sixth, and Eighth Amendment rights of assurance against capricious prosecution, due process, no seizure of property without due compensation, an impartial jury, access to counsel, prompt justice, and reasonable bail, don’t exist. The ubiquitous plea bargain is just the wholesale subornation or extortion of inculpatory perjury in exchange for immunities or reduced sentences (often with people who are threatened, although there is no evidence against them). Assets are routinely frozen on the basis of false affidavits in ex parte proceedings to deny defendants the ability to defend themselves. Those who do exercise their constitutional right to a defense receive three times as severe a sentence as those who plead guilty; 95 percent of cases are won by prosecutors, 90 percent of those without trial. The public defenders have no resources to conduct a serious defense and are usually just Judas goats of the prosecutors conducting the defendants to legal destruction.
Sentences are absurd: A marijuana deliverer is apt to be sentenced to 20 years in prison. There is minimal effort to rehabilitate nonviolent offenders. Private-sector firms are increasingly active in the prison industry and they and the militantly unionized correctional officers, almost all unskilled labor, constantly lead public demands for more criminal statutes and more draconian penalties.
Unfortunately, the immense surge in American incarceration rates is largely credited with the decline in crime rates, though better police work, more general use of video cameras at potential crime sites, an aging population, and, for a long time, improving living standards, were responsible.
The civil law is in no better condition, as 70 or more percent of cases would not be receivable in the courts of peer countries and would be deemed frivolous or vexatious litigation. The American legal industry is a medieval guild in which the prosecutors, bar, and bench join hands to ensure that legal invoices are paid, no matter how excessive.
The point is that the justice system is a shambles, in much worse condition than the health-care system, but seems not even to be recognized as a problem. In the Commentary symposium, Heather Mac Donald saluted America’s “deep-seated advantages of the rule of law,” and though Peter Wehner lamented that “our health care and entitlement system, tax code, schools, infrastructure, immigration policies, and regulatory regime” are “outdated, worn down, and hopelessly out of touch,” he gave justice a pass.
I hoped in 2007–08, when rabid prosecutors attacked the chief of staff of the vice president (Scooter Libby) and secured his conviction on a very dubious charge, and other prosecutors convicted and caused the electoral defeat of five-term senator Ted Stevens on what was shortly proved to be a fraudulent prosecution, that the political class would awaken, at least to the danger to itself. When the Terror of the Committee of Public Safety reached its height in 1794, the French National Convention came to its senses, at least to a sense of self-preservation, and sent Robespierre and his whole committee (except for the war minister, Carnot), to the guillotine without a trial, and declared the dawn of the permissive Thermidor.
It would be taking a liberty to claim that American conditions have deteriorated to such a point, but Robespierre wasn’t thumbing the Bill of Rights or swaddling himself in Madisonian expatiations on the pursuit of liberty. The masses were singing the bloodcurdling call to arms of the Marseillaise, not crooning, hand over heart, about the land of the free.
A court-appointed investigation of the Stevens affair has found “serious, widespread, and at times intentional concealment of evidence, but did not specifically urge prosecution for criminal contempt of those responsible, because the trial judge had not precisely ordered the prosecutors to obey the law by turning over exculpatory evidence.”
Even after all I have been put through by the justice system of the United States, I had to rub my eyes and reread newspaper accounts and check them against each other to achieve a comfort level that what I was reading was what was intended, was corroborated, and was accurate. It was. The investigator found the prosecution “permeated by the systematic concealment of significant exculpatory evidence . . . and (other) serious misconduct.” He was neutral on the issue of whether the prosecutors should be charged with obstruction of justice, a catchment American prosecutors routinely use to ensnare, over-punish, and stigmatize frequently unexceptionable conduct — a charge so vague it is almost impossible to defend against successfully.
I have witnessed in the U.S. much sleazy prosecutorial conduct whose authors would have been disbarred in my native jurisdictions of Canada and Britain, and I cannot imagine how the U.S. justice system could have descended to such infamies. The only person in the Stevens outrage who seems to have had any redemptive qualities was Nicholas Marsh, one of the assistant prosecutors in the Stevens case, who committed suicide when the conduct of the prosecutors came to light. Depending on his exact apparent motives, and the sequel to his tragic action, he could play a role analogous to that of the Tunisian street vendor who set off the Arab spring by immolating himself.
The state of American justice is shameful and unspeakable, literally so to judge from the hear-no-evil, see-no-evil, speak-no-evil insouciance of Commentary’s blue-ribbon high table of contemporary critics. Many of them attacked the nihilistic, self-destructive anti-Americanism of the American campuses, absolutely correctly. But if they noticed the fraudulence that has metastasized through the American legal system, their critique would carry greater weight.
The moral soul of America is rotting away and the only defense an individual American has is numbers: The prosecutocracy cannot send more than 1 percent of the entire adult population to prison at any one time, if only for budgetary reasons.
The first line of defense of society as a whole are those whose vocation is to study and espouse public policy. Failure on this scale will make them complicit in this vast crime of the state, if it continues. I am listening for Jefferson’s firebell in the night and all I hear is Gertrude Stein’s sound of one hand clapping.