I have often argued that academics should shift their focus from studying the oppressed to examining the oppressor. The oppressor is a perpetrator and their crimes are rarely victimless crimes as opposed to the majority of the American prison population who are jailed for victimless crimes. The United States of America has a prison population so significant in numbers that it is larger than the total population of some nations. Nearly two and a half million American people are in jail, with another six million before the criminal justice system in one form or another. One in four of the world’s prisoners are in an American prison.
What is so wrong with the so-called land of the free that it locks up its poorest at the world’s most abominable rates?
One story tells it all – of how the American criminal justice system is no longer a justice system – but a Kafkaesque abyss of despair and it is getting even worse. A man was sentenced to life in prison for forging a cheque to the value of just over $88. The Supreme Court upheld the conviction.
The American criminal justice system is a basket case as it struggles to cope with the tsunami of poverty related crimes and of other crimes too – the majority of them victimless. American politicians create one new law after another to punish people even for the most minor of offences. They dish out incredibly long sentences – it should be unimaginable that draconian laws are passed.
So that the American justice system can move along the millions who have been charged, prosecutors bully into pleading guilty. Plea bargaining is the way it goes in the States, with the Supreme Court supporting the right of prosecutors to threaten defendants. Plea bargaining means no trial but the consequence is that many innocents finish up in jail because of this. Nine times out of ten, those who refuse the plea bargain and go to trial are found guilty. So prosecutors can threaten that if they opt for trial then the prosecution will pursue heftier sentences, even life sentences. The American justice system has done away with social justice and human rights. The American justice system is a tunnel of darkness.
Those most impacted are those poorest, the marginalised. Of course poor African-Americans, Latinos and migrants are the most impacted.
Plea bargaining is relentlessly used for federal drug defendants. In 1978, the Supreme Court ruled that prosecutors could threaten defendants with longer sentences if they did not avoid trial and accept a plea bargain.
The forging of a cheque for a small amount carries a two to ten year prison sentence – pretty harsh by any measure.
Paul Hayes was indicted for forging the cheque for $88 but because he rejected the prosecutor’s offer of a five year sentence if he pleaded guilty he was tried under the Habitual Criminal Act – a three strikes law – and was sentenced to life in prison. What sort of abominably sick system is this? Five years for $88? A life sentence dished out for $88?
In the United States Supreme Court in Bordenkircher verse Hayes, 1978, it was noted, “The guilty plea and often concomitant plea bargain are important components of this country’s criminal justice system.”
The Supreme Court ruled that prosecutors could bully and threaten defendants with longer sentences. “This Court has accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty, and in pursuing that course here the prosecutor did not exceed constitutional bounds.”
It is an indelibly broken system that endemically allows for defendants to be threatened and subsequently punished with longer sentences for seeking to have their story told to a jury. But the prosecutor, according to the Supreme Court, was entitled to go after Hayes with a life sentence penalty if Hayes “didn’t save the court the inconvenience and necessity of a trial.”
Hayes knocked back the prosecutor’s five year sentence ‘bargain’ for forging an $88 cheque. He went to trial. The prosecutor and court punished Hayes with life.
It was appealed in the Kentucky Court of Appeals and then in the Supreme Court.
The Supreme Court noted, “A jury found Hayes guilty on the principal charge of uttering a forged instrument and, in separate proceeding, further found that he had twice before been convicted of felonies. As required by the habitual offender statute, he was sentenced to a life term in the penitentiary. The Kentucky Court of Appeals rejected Hayes’ constitutional objections to the enhanced sentence, holding in an unpublished opinion that imprisonment for life with the possibility of parole was constitutionally permissible in light of the previous felonies of which Hayes had been convicted, and that the prosecutor’s decision to indict him as a habitual offender was a legitimate use of available leverage in the plea bargaining process.”
“On Hayes’ petition for a federal writ of habeas corpus, the United States District Court for the Eastern of Kentucky agreed that there had been no constitutional violation in the sentence or the indictment procedure, and denied the writ.”
We cannot remain quiet and civil when the law is the crime. We cannot remain idle and hope that the light of day will reach the lawmakers. Most lawmaking is the result of politicians. Plato said that if we do not engage with our politicians we risk being governed by the dumb. Millions are being jailed for victimless crimes and low level offending. Tens of thousands of innocents are being jailed for crimes they have not committed but who are too poor to fight a corrupted justice system. The United States is the rest of the world’s future nightmare if their criminal justice systems are not better understood in the now and changed by their resident populations before they become the American nightmare.
Courts need to be more than a web of laws or a reflection of the nation’s constitutions – they need to be compassionate, understanding and forgiving – redemptive and restorative. The future of humankind is looking ugly, devastatingly so – it is one of hauntingly doomy divides. No constitution refuses compassion, understanding and forgiving – of redemption and of restorative justice.
The US Supreme Court ruled that the prosecutor had not violated Hayes’ constitutional rights – well, if that is the case, the constitution has been misused to violate human rights, to violate social justice, violate justice period. The US Supreme Court failed justice. It failed the opportunity to be fair and honourable – to define in law what is humane.
Today, we see millions of people incarcerated in extraordinary long sentences for the most minor of offences, for low level offending, for victimless crimes. In my many years working to improve the lot of people pre- and post-release it is my view that those that leave prison come out worse than when they went in.
In the United States, more than 95 per cent of federal drug defendants plead guilty – they have no choice really. Their lives are changed forever – they are registered as criminals and so find it difficult to secure a job.
What sort of society punishes someone with an additional 20 years, 30 years, with a life sentence because they refused to do the plea deal?
– Declaration of impartiality – Gerry Georgatos is a suicide prevention researcher and prison reform advocate with the Institute of Social Justice and Human Rights.
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