THERE IS UNDOUBTEDLY A VERY LARGE number of capable and completely honest lawyers in the United States, and of courageous and incorruptible prosecutors and judges. The country has a storied and often distinguished judicial tradition, and the guaranties of individual liberty and due process have inspired and helped positively to reform the world, and have been defended and promoted, under provocation, by the steadily mightier and generally victorious armed forces of the United States, incurring, when the Civil War is included, the highest and noblest sacrifice of more than 1 million Americans in mortal combat.
A serious examination of the U.S. legal and justice systems would be a massive undertaking, and apart from undisputed statistics, my experiences of it are all that I can write about with authority. Such an undertaking is desperately needed. The statistics cited and basic comparative research indicate that in liberalizing the world, the U.S. has steadily undermined its own tradition of respect for individual liberty. As this narrative illustrates, in the shadow of “Freedom’s Holy Light,” terrible abuses and hypocrisies are commonplace in the justice and custodial systems of the land that most noisily and relentlessly celebrates its illumination.
One of the great ironies of modern times is that the United States is the author and champion of triumphant democracy, but is not now a very well-functioning democracy itself. From the end of the American Revolution in 1783 to the end of World War II in 1945, democracy in the world had progressed very little, other than in the sense that the populations of almost all countries had increased. The British Isles, America, Switzerland, and the Netherlands and parts of Scandinavia were the only democratic jurisdictions in 1783. And they remained so, with the additions of the British Dominions which had been settled in the meantime, and the expectations of France once a republic was restored, in 1945.
But when the American strategic leadership concluded that the Cold War was a battle for survival with a deadly rival, and billed it as a fight to the finish between Godless communism and the free world, the pro-democratic pressures generated by the United States became irresistible even though the free world included such doubtful adherents as Franco, Salazar, Chiang Kai-Shek, the Shah, Syngman Rhee, and the bemedalled juntas and Generalissimos of Latin America. The Free World gradually became overwhelmingly, relatively free, and came to include the largest emancipated colonies, especially India, and almost all of formerly Soviet-dominated Europe, almost all of Latin America, and many of the great states of East Asia, including Japan, Indonesia, South Korea, Malaysia, Taiwan, and Thailand. Many of these new democracies have innovated brilliantly, such as Germany’s entrusting to independent investigative commissions the question of whether there are grounds to prosecute, as opposed to what has become the mockery of the U.S. grand jury system.
The end of the Cold War was the greatest, most bloodless strategic victory in the history of the nation-state, as the Soviet Union imploded, China became a capitalist though authoritarian state, and international communism collapsed, without a shot being fired between the great protagonists.
Unfortunately, as that has happened, the United States ceased to attract huge numbers of very talented and motivated people fleeing oppression, as fewer people in fewer countries are being oppressed, and the choice of destinations for those who are has become so much larger. And the United States’s own institutions have largely calcified. Now at least twenty countries have a superior education system to the U.S., at least twenty a superior health care system, at least twenty a superior justice system.
The American justice system has become a gigantic legal cartel, where there are too many laws, and the legal profession is a terrible taxation on the country. The U.S. is a terribly over-lawyered country (having about half the lawyers in the world, over a million) where legal bills routinely consume $1 trillion a year, almost as much as the GDP of India. Most judges are ex-prosecutors, and so are a very large number of legislators. The criminal justice system has become a prosecutocracy where more than 90 per cent of indictments are successful. The country has become a carceral state detaining an obscene number of its own citizens, and a vastly disproportionate number of the world’s prisoners, often in conditions that are shocking, especially in such a rich and generous-minded country, so proud of its humanitarian traditions.
An astounding 47 million Americans have a criminal record, albeit most of them are for minor offences long ago, but about 750,000 people are sent to prison in the U.S. every year and the country has six to twelve times as many incarcerated people per capita as other wealthy and sophisticated democracies: Australia, Canada, France, Germany, Japan, and the United Kingdom.
THE AMERICAN CRIMINAL JUSTICE SYSTEM is based on the plea bargain, which is hideously abused, and it could not possibly be otherwise. Prosecutors single someone out and threaten all sorts of acquaintances or colleagues of the target with prosecution if they do not “cooperate,” which in practice means producing inculpatory evidence against the target, with negligible concern for its veracity, and an immunity against prosecution for suborned or extorted perjury.
In our case, the prosecutors negotiated the evidence with their main witnesses, and knew perfectly well how they were “preparing” the testimony of witnesses. As the reader has seen in this narrative, and most readers would have observed the same pattern elsewhere, all the important government witnesses in our trial were press-ganged into pre-agreed, catechetical evidence, which was torn to pieces and debunked by defense counsel. They did this in exchange for immunities from prosecution on charges that would have been spurious (except for Radler), but dangerous in this system; and in the case of the one person who actually had committed crimes, a very soft sentence in consideration for his confession and denunciation of former colleagues he surely knew to be innocent.
It is terrifying to see how the prosecutors can, as they did with Burt, Kravis, and Thompson in our case, intimidate prominent and successful people who in other contexts would have some moral authority and no absence of goodwill to me. And it was very disturbing to see what a bullyboy like Sussman thought nothing of threatening to do to my mortgagee in Palm Beach if he renewed the mortgage and denied Sussman his false claim to St. Eve that I was in default of my bail conditions. This was the basis of his demand that accordingly, my house should be seized, bond rescinded, and I should be sent to prison at once, without the annoying formality of a trial—with no critical comment whatever from the world media. It was disturbing to see his threat of prosecution of the acting president of Hollinger Inc. (Don Vale), if he so much as entered the U.S. to testify that I had pre-cleared removal of the famous boxes with him. These outrages are routine and mention of them brought no response even from a relatively fair-minded judge, as St. Eve was.
The plea bargain is nakedly the exchange of altered testimony for varied sentences. It generally starts well down in an organization and brings irresistible pressures to bear on people unable to sustain themselves psychologically or defend themselves financially against such an onslaught—until that person promises to inculpate a targeted higher-up.
The process goes through an organization until sometimes scores of intimidated or suborned people are accusing the chosen target. It is an evil and profoundly corrupt process, and is not reconcilable with American notions of law. Every informed person in the country knows that the criminal justice system is based on officially sanctioned fraud and intimidation, and that the federal court houses are silent and the courts are empty because almost no one can go the distance with the government, and that there are tens or hundreds of thousands of innocent people in U.S. prisons because of the false confessions and accusations they are forced to make. Everyone who knows anything about comparative law knows that prosecutors in Britain and Canada, to name only the other jurisdictions I know well, and which have their judicial failings too, would be disbarred for the imposition of what are routine plea bargains in the United States. But almost no one says anything about it.
I was the real target in our case, because of my comparative prominence, and to get at me, it was necessary to allege a scheme and take down some close associates with me. We were all innocent, all benefited from the destruction by our counsel of the government’s rehearsed and mendacious witnesses, but because of one of a number of catch-all statutes that make conviction almost inevitable, we were all convicted and all but one of us were sent to prison.
IT IS TERRIBLY IMPORTANT THAT I make the point that I was not especially singled out for this assault. This is the routine modus operandi of the U.S. prosecution service. It does what it wants and persecutes whomever it wishes for as long as it likes.
As the Chief Justice of the United States said at our Supreme Court hearing, whoever a prosecutor takes against is a criminal, and under the statute that convicted us, anyone could be so designated, charged, convicted, and imprisoned. The Chief Justice made the point that even an intelligent member of the public would not know when he was committing a crime under the honest services provision, and one of the other justices said that a derogation from honest services could probably be alleged against 90 per cent of the U.S. workforce, at any time, or about 140 million people.
In my own experience, it will be recalled that I did not benefit from the constitutional guaranties of the grand jury as assurance against capricious prosecution; the ban on seizure of property without just compensation; the guaranties of due process, access to counsel (of choice), an impartial jury, prompt justice, and reasonable bail. A statute that should have been completely inapplicable was invoked, ex parte, to seize my assets. Illegal telephone intercepts had informed prosecutors I had earmarked for the retainer of my counsel of choice, who was thus denied to me. And the affidavit that was used to justify the seizure is one that the jury judged to be, and the prosecutors should have known to be, false. Again, there was no sanction for this from an indulgent court presided over by an ex-prosecutor, any more than for the endless inaccuracies the prosecutors inflicted on the court.
The government rehearses its witnesses, whom the defendants cannot interview, intimidates them with threats, and shelters their extorted testimony with guaranties of immunity, but any contact from the defense is deemed to be witness-tampering and obstruction of justice.
To establish federal jurisdiction in cases like mine, charges are ridiculous interstate technicalities like wire fraud. Charges come in large bunches, as jurors are normally reluctant to give their government nothing at the end of a long trial.
Notice is given very late of documentation to be used; false accounts of prosecution interviews are handed over, which cannot be shown to interviewees; and the prosecution speaks last before the case goes to the jury, which generally has to rely on its memory of the proceedings, no matter how long and complicated the trial. The prosecutors routinely indict amid a media extravaganza that would be considered grossly prejudicial and grounds for a mistrial in any other legally civilized country. I was accused of money laundering and, inter alia, racketeering, and the preposterous concept of civil racketeering. The law of the United States is not only an ass; it is an ass spavined beyond recognition. It pains me to seem ungrateful to the Supreme Court for overturning the abusive measure that was used against us; but I can’t help wondering where that court, amid the vast media and professional cult of its composition and the philosophies of its members, has been while the Bill of Rights has been put to the shredder for decades.
The court unanimously gutted and rewrote the statute that sent my co-defendants and me to prison for more than two years, but it had struck down the statute more than twenty years before, and it had been instantly replaced and continued to be used to send the innocent to prison for decades until we brought it back to the high court.
The importance of the Supreme Court among the equal branches of the federal government has risen because of the moral abdication of the Congress and President. The other branches could not face the issue of abortion, or of the illegal immigration of approximately 15 million people, or of acute income disparity, or of health care for the country’s 45 million uninsured. But they and especially the Congress have been responsible, instead of addressing these and other urgent public policy concerns, for an assault on civil liberties vastly beyond anything ever entertained by the government of King George III, against whose heavy-handedness about two-thirds of Americans revolted in a seven-year war of independence.
As legislators and presidents have copped out, the executive branch’s prosecution arm has become an enforcement elite, holding hands with ex-prosecutors in the Congress and the judiciary, and progressively terrorizing more and more people, including senior members of the Congress and Administration. They are a state within a state, which, in 2007 and 2008, destroyed the career of a five-term senator, by recourse to fraudulent evidence, and of the former chief of staff of the vice president, on a charge by the special prosecutor (the inevitable Patrick Fitzgerald) who was soundly thrashed in the media. Prosecutors are not now checked or balanced.
And beyond that, although this is not a political science treatise, Congress is now mainly composed of rotton boroughs controlled by particular interests. It has become a vast and sleazy earmark-trading, log-rolling, and back-scratching operation that all polls indicate disgusts the great majority of Americans. The core of the American system, identified with the unexampled rise of the country and the ideals that give the Americans their sense of exceptionalism and is much of what they have fought for in their many wars, is the concept of individual rights, due process, and equality before the law. This has putrefied. American criminal justice is a conveyer belt to imprisonment or the place of execution, festooned with a few trimmings and a bit of window dressing of a just society of the rule of law.
Prosecutions in the United States have become steadily more numerous and are almost always at least partially successful, and the political class, from left to right, claims success against crime through righteous severity. The public scream for blood; judges are named or elected on the basis of their propensity to aid the prosecutors and become, with few exceptions, the Zeitgeist in robes.
In our case, settling, or “cooperating,” as it was euphemistically called (it should have been called co-conspiring), was a win double for almost all involved. Lawyers and consultants and often their clients, while helping the U.S. government assault me, could enrich themselves splendidly by leeching onto Hollinger. In my wildest nightmares, I had never believed that so many people of relatively serious mien could so easily be tainted and bent. But very few missed an opportunity to vacuum up the money. In this case, “following the money” would create a stampede in which many would be trampled underfoot by the surge of mindless seekers of their own enrichment. Courts support and are part of the legal cartel, and piled costs onto our companies until they were bankrupt, and the devil take the public shareholders in whose name all their infamies were executed. It was disgusting.
When the recession came in 2008, many large U.S. firms paid promising graduates $100,000 or more per year not to sign with any other firm, so confident were they that the fat days would soon return. (They did.) Various American and Canadian lawyers advised me to sell all my assets pre-emptively, to be able to pay the legal bills for as long as possible.
When a defendant in the U.S. concludes that his defence was deficient, and files an action after the trial to emphasize a relevant point that was overlooked and could perhaps have affected the outcome of the trial, the cartel rallies and the prosecutors argue the outstanding qualities and unsurpassable legal expertise of the defence counsel whom they have defeated. It is the litmus test of the solidarity of the profession, and never fails. In the end, the law is a medieval guild and the clients are the material the guild works with, like shoemakers’ leather, and usually with almost as much impersonality.
The victims of the uneven grinding of the U.S. justice system are not a political constituency. The United States has 5 per cent of the world’s population and 25 per cent of the world’s imprisoned people (about the same numbers as apply to its GDP); it has nearly five times the population of the United Kingdom and yet, at 2.45 million, nearly forty times as many imprisoned people. The masses of America are not as free as they think, and again, America does have almost half the world’s lawyers.
CANADA IS A SMALLER JUNGLE than the U.S. with smaller beasts in it; the lawyers are generally not as competent as the Americans, and the Canadian judges are more servile marionettes of the media faddists. But the rules and practices are fairer and the results less savage than in the United States. The Hollinger Inc. cooperation agreement, which Walker, Strosberg, and Kelly negotiated with Sussman, showed the ease with which Canada slides into its branch-plant status with the United States even in the adoption of its sleaziest practices. The agreement spared the company prosecution (for which there was no conceivable cause), ostensibly in exchange for information. In fact, Sussman instructed the “management,” which happily purloined, destroyed, and mislaid my documents, seized personal property of mine, and did everything inhumanly possible to defame and aggravate me. This process culminated under Walker in the obstruction nonsense, and under Voorheis in the Mareva outrage, both blessed and sanctioned by Canada’s very own Richard Posner toute proportion gardée, Colin Campbell.
Despite these and many other failings, the hand-holding in Canada between the prosecutors, judges, and legislators, is not as intimate or cynical as in the U.S. Not so many judges are ex-prosecutors and crime has not been so shabbily politicized. There has not been the same drive in Canada as in the U.S. to end penal reform, and turn the convicted into a permanent wretched band of outcasts inaccessible to social utility or respectability. The Trudeau era defined more socialistic public policy as a raison d’être of Canada vis-à-vis the United States, albeit largely as a blind for buying Quebec’s adherence to federalism through colossal largesse disguised as uniform social programs. This has helped Canada avoid the barbarity, demagogy, and primitiveness that have afflicted American justice. So has the abolition of the death penalty, which has achieved a morbid, fetishistic status in the minds of many great Americans, including the forty-third president, who seemed to find rejecting commutation requests from the denizens of death row one of the great pleasures of being governor of Texas.
It is very worrisome to see the Harper government trying systematically to import American severities of longer sentences, reduced efforts at rehabilitation, more prosecutions, and the extreme discouragement of continued contact with family and friends (not even a handshake with a visitor—I lived from week to week on the permitted arriving and departing hug and kiss with Barbara). I will do what I can to oppose this. Margaret Atwood and I have gone joint account in buying a cow from the “historic herd” adjacent to the Kingston penitentiary, which is being dispersed to expand the prison, to admit the anticipated droves of people convicted of habitually unreported crimes. Kafka, Orwell, and Koestler never tried this one, and we are referring to Canada, not the gulags of Euro-totalitarianism.
As in many other spheres, Canada is a junior league for the colossal engine of injustice Americans know little of as they stand at public events, hands over their hearts, bellowing out their splendid anthems, apparently never wondering how the legal system of Madison, Jefferson, and Lincoln permutated into this giant cesspool of officious legal hypocrisy.
My one parallel experience with British counsel was with a libel firm, where the partner I was in touch with inadvertently sent me an email intended for one of his colleagues, suggesting that they could demand £500,000 to start and wouldn’t have to do much. I found British solicitors pusillanimous, pettifogging, and grossly overpaid when I lived there, and I would always be prepared to fear the worst of them.
I think their judges are better than in Canada and the U.S., less hypnotized by the media and more fluent, of tongue and pen, and their barristers are often impressive. Again, I had occasion to deal with many of the most prominent when I was at the Daily Telegraph.
THE CRIMINAL JUSTICE SYSTEM IS as much devoted to the creation of an untouchable caste of the wretched, tainted with conviction, in a sort of Roman imperial lottery, as it is with condign justice and the gathering of as many people as possible into a normal diverse, law-abiding polity. The regular visits of the director of the Bureau of Prisons to Congressional subcommittees, which I read with avid astonishment when I was one of his guests, are an exercise in Orwellian newspeak. Po-faced Congressmen listen credulously as the director describes an elfin workshop of happy inmates singing “hi ho” as they proceed inexorably toward rehabilitation. The whole system is a tenebrous and deadly thicket, designed to ensnare, benumb, and break all those who blunder into it, whether by misdirection, victimization, or genuinely criminal or sociopathic behaviour. As one who rushed home early from school to watch Army—McCarthy hearings on television in 1953, I felt it grimly nostalgic to read the director of the BOP’s bucolic fables before the legislators to whom he is ostensibly responsible.
BOP Director Harley Lappin told a sub-committee of the House Committee on Appropriations on March 10, 2009, that “the mission of the BOP,” apart from protecting society by confining offenders, is “to provide inmates with a range of work and other self-improvement programs that will help them adopt a crime-free lifestyle upon their return to the community. As our mission indicates, the post-release success of offenders is as important to public safety as inmates’ secure incarceration.” He assured the Congressmen that there was a “plethora of inmate programs, including work, education, vocational training, substance abuse treatment, observance of faith and religion, psychological services and counseling, Release Preparation,” etc.
I was in one of the BOP’s premier, deluxe prisons. Only one or two of the teachers actually educated anyone (though they and the educational administrators did genuinely care about advancing the student inmates). The tutor-inmates did the teaching, though we were compelled to attest otherwise. The vocational courses were of the most superficial nature and did not qualify anyone to go forth and earn more than the minimum wage, thus reducing competition for the unionized building and maintenance trades that control those occupations. Almost all the release preparation was done by inmates such as me giving advice for job resumes and career choices at variance from the pap uttered by the BOP, which effectively advised its charges to bag groceries and not think that they could be making one hundred times as much dealing drugs.
There was no manual available to inmates to move on to higher education by correspondence, so I bought one myself, walked dozens of students through it, and in a number of cases helped arrange the financing for going into university by correspondence, in the absence of any official encouragement.
There are wellness facilities, but it may surprise Director Lappin to find that religion is not a BOP program. At that, the BOP chaplain, as was mentioned in Chapter 15, was a specialist in divining whether inmates had taken a piece of bread from the dining hall and in discriminating against all but his sect of white Baptists. He helped banish our priest when he declined to apprehend those removing food from the dining hall, saying “I don’t work for the BOP, I work for the Pope.” He tried to bar me in consecutive years from attending the annual Roman Catholic luncheon on Ascension Day.
I have nothing but compliments for what I have seen of the U.S. probation service, in Chicago and Palm Beach, but the post-release rules are designed to maximize the likelihood of a return to custody. If I, for example, went to dinner in the home of a friend where there was a licensed gun, whether an antique, or a hunting rifle, in the basement or attic and without ammunition, I would be liable, while bonded, to be sent back to prison. Charlatans like Congressman Danny Davis called his act expanding availability of extended halfway house accommodation and home confinement “historic, landmark” legislation. I assisted many inmates in trying to take advantage of this opening, always to get back the stone-faced response that such a reduction of prison time would be “against policy.”
Almost all the “jobs” at the facility apart from cleaning the washrooms and mowing the lawns, making furniture, and educating inmates, and some kitchen duties were the most absurd make-work, involving five minutes a day, if that. And the anti-substance abuse program was a series of self-confessions and denigrations interspersed with puerile sing-songs. Three-quarters of the participants were there to reduce their sentences. The educational, psychological, and most of the rehabilitative staff tried to encourage the inmates, but many of the correctional officers were devoted altogether to aggravating, provoking and belittling us. Gentle and thoughtful officers are often reprimanded or demoted for their civility.
The great majority of convicts return older but no less vulnerable to those temptations that ensnared them, justly or otherwise, than when they first arrived. (I have even urged former drug dealers to become bail bondsmen – they can take from the same huge pot of drug money, have a good income, and be legally employed in a growth industry.)
More than 90 per cent of the country’s residential mental patients have just been tossed into the prison system. Each prisoner costs directly about $40,000 annually to detain, and the total annual cost of the country’s prisons is about $250 billion. Imprisonment has become a discreditable substitute for racial segregation, chunks of the welfare system, treatment of mental illness, and amelioration of the effects of drugs on American society.
Unlike other advanced countries, all U.S. prison systems (in all jurisdictions) are bent on retaining as many prisoners as possible for as long as possible, and to maximizing the prospects of repeat offenses. Like other businesses, the prison industry seeks endless expansion. Former public-sector prison executives join private-sector prison companies and work their connections assiduously, like retired generals and admirals in defence industries. The political intitiatives of the correctional officers’ unions are very sharply focused and effective.
The correctional officers are poorly paid and smuggling is widespread. There is endless investigation, shuffling of personnel, and charges of financial and not infrequently, sexual, indiscretion. Graduates of the higher security facilities adjacent to our low security prison tell me those places have higher levels of violence (and therefore more respectful correctional officers), and have stabler populations. Almost anything is available there: a menu of alcoholic drinks for in-cell service, cellphones, etc. There is obviously substantial inventory shrinkage out the back of the commissary as well as through the kitchen, and the BOP personnel can lay it all off on the inmates. And it would be counterintuitive, ahistorical, and astounding if there were not massive kickbacks on arm’s length purchasing. The whole ambiance of the BOP is corrupt, and the inmates are not the chief source of it. From all accounts, the states and counties, more strapped for funds, are worse.
In California, the number of prison employees multiplied from 1977 to 1998 by six, and of prisoners by eight, to 160,000, more than the combination of France, Germany, the United Kingdom, and the Netherlands, which together had more than seven times as many people (and in each case a lower crime rate). Since then the number of California’s prison employees rose from one-fourteenth of the state’s employees to one-third, and the prison budget has exceeded the state’s university budget for many years.
Other advanced countries concentrate on constructively training and releasing non-violent offenders as quickly as possible. Senator Jim Webb of Virginia, in his essay “Criminal Injustice,” makes the point that as the countries mentioned above have from one-sixth to one-twelfth the number of incarcerated people as the U.S. per capita, either Americans are more naturally addicted to criminal behaviour than other countries, which is nonsense, or the other countries are indifferent to crime, which is also nonsense, or the U.S. overcharges and oversentences, which is obviously true.
Up to the 1970s, the United States was a reasonably liberal country in custodial matters; it had about as many imprisoned people per capita as Australia, Canada, France, Germany, Japan, and the United Kingdom; had a prison system that gave some attention to rehabilitation; and had an active prison reform movement.
The U.S. media, both in information and entertainment, have for decades hyped the problem of violent crime out of all proportion to its real importance. This was almost the only way for local news programs to attract viewers. Whatever is the principal local crime of the day leads the news, even if it is the brazen and frightening theft of a five-cent cigar. CNN’s Nancy Grace has never to the best of my knowledge tackled any crime other than kidnapping, rape, and murder. She always presumes guilt and sometimes seems to demand the execution of suspects before they have been charged. Her voice resonates in my thoughts as, speaking about some untried individual, whose guilt is a matter entirely of television speculation, she inquires yet again in her mellifluous southern accent of another prosecutor: “John, can you tell me why this man/woman/child/sheepdog has been allowed to roam the streets without being put on a register/picked up for questioning/jailed/flogged/put to death/drawn-and-quartered years ago?”
Trial by media is taken for granted in a society whose prosecutors, unlike those of any other civilized country, give inflammatory press conferences asserting indisputable guilt long before any juridical assessment. Virtually all politicians went berserk hammering crime as an issue, starting in the sixties. Liberals like Nelson Rockefeller and Robert Kennedy and Bill Clinton were as oppressive and demagogic as centrists like Richard Nixon and conservatives such as Ronald Reagan and George W. Bush. Absurdly repressive laws tumbled forth; mandatory minimums, the three-strike rule, truth in sentencing (which eliminated parole), and the artificially inflated mystique of the death penalty as a macabre ritual of moral and social purification. Then Texas Governor George W. Bush took to publicly mocking death-row petitioners when they asked for commutation.
The consequence of these developments was that designated crimes received draconian sentences, with no discretion to the judges to alter them. A third conviction, no matter how trivial or far apart the convictions were, is now grossly overpenalized, and no federal sentence can be reduced by more than 15 per cent. Despite all the fear-mongering about violent crime, for the first time since Prohibition, there are more Americans imprisoned for non-violent than for violent crimes. Only 4 per cent of three-strike prisoners in Los Angeles were convicted of violent crimes. In the whole country, less than 15 per cent of prisoners are repeat violent offenders.
Prison reform collided with the feminist movement, which claimed that violence against women was out of control and was tacitly sanctioned by a large part of male America. The bloody riots in Attica and San Quentin prisons in the early 1970s caused the conflation in the public mind of prison reform with black radicalism and the blood-curdling ambitions of black extremists including Bobby Seale, Eldridge Cleaver, Angela Davis, and H. Rap Brown, and brought down a heavy backlash on all accused and confined people. The crime rate declined because the twenty years of Reagan, Bush Sr., and Clinton were basically full-employment, inflation-free decades of huge job creation (an astonishing 47 million net new private-sector jobs), and because police techniques were improved and numbers of police increased throughout the country; and perhaps most importantly, the population aged, losing some of its taste for the exertions of crime as it did so. The politicians sold the public the bunk that they were responsible for bringing down crime by conducting a war on crime and a war on drugs based on more arrests, high conviction rates, more imprisoned people, and longer sentences.
Since the 1970s, the public has happily approved countless state referenda authorizing bond issues for building new prisons. When this cut into welfare and education budgets, and the public in many states voted down the special prison-building bond issues, the state governments gave long-term lease-backs to private-sector companies that built the prisons and guaranteed them a high occupancy level and rental payments whether the facilities were full or not. This saddled the states with an effective average interest rate of 37 per cent, but excused the politicians from an insupportable referendum or the dread appearance of being soft on crime.
Tens of thousands of shareholders of Wackenhut and Corrections Corporation of America and other publicly traded prison companies demanded more and more prisons and prisoners and steadily harsher sentences. The prison companies hire former prison and security officials as executives and directors, including former directors of the FBI and CIA. The correctional officers are militantly organized, and their unions are rivaled only by the National Rifle Association as the most effective political lobbying organization in the country in election campaigns over the past thirty years. They and the politically potent police unions lead the political agitation against any sentencing reform and in favour of longer sentences and more prisons.
Whenever (and however) a prison correctional officer dies in the line of duty, it is treated in all prison facilities as a re-enactment of the perils of the flag at Mount Suribachi (Iwo Jima), though prisoner violence against guards is now quite rare. Deaths of prisoners are officially ignored. There is a deliberate, implicit effort within the system to present all convicted people as indistinguishable from killers and rapists; we are all miscreants outside the law. Overflow prisoners of state systems are shipped out from one state to another and often housed in abominable conditions. The nation’s county jails, bulging with nearly a million prisoners, are just dustbins of gangs and miscellaneous alleged law-breakers, huddled in appalling conditions amid shockingly high levels of violence.
Once someone is in the web of the accusatory system, all the spiders swarm and tangle and sting the dazed newcomer. And once in the custodial system, the dehumanization is almost relentless but usually trivial: the caprices and discourtesies and inanities of a system that is mindless though largely in the hands of decent, limited people. And the orchestrated public attitude has been one of Salem-like ostracism. This will subside, as the frailties of the system become better known and the absurd numbers of potentially stigmatized people exceed society’s powers of misplaced righteous ostracism. None of this is to whitewash the misdeeds of a great many convicted people. But for such an advanced and brilliantly innovative country, it is an amazingly clumsy, unjust, and corrupt desecration of the nation’s ideals and squandering of its human resources.
The prison industry has become a gigantic Frankenstein monster, feeding on public ignorance and paranoia, political corruption and cowardice, and with the rails greased by the endless media blurring of the line between the suspected and the convicted, and the entertainment industry’s portrayal of uniformly heroic police, prosecutors, and judges, and mono-chromatically horrible and psychotic criminals. In an earlier time, the media lionized defence lawyers such as Perry Mason as much as civilized police officers such as Joe Friday in Dragnet.
I am a fierce defender of private and even public property, but their theft or misappropriation is not morally equivalent to the physical battery of a person. What is required is to rewrite the laws, impose the rule of law on the conduct of prosecutors, and revive the Fifth, Sixth, and Eighth Amendment guaranties of due process, no arbitrary and uncompensated property seizure, a serious grand jury assurance against capricious or vexatious prosecution, access to counsel, an impartial jury, prompt justice, and reasonable bail. This will require profound procedural changes, an end to the plea bargain in its present grotesquely deviant form, and rousing the Supreme Court from its star-gazing self-absorption and rubbing its collective, exalted nose in the Bill of Rights, which it has complacently allowed the prosecution to smother and perforate for decades, as softly and thoroughly as moths.
THE CRUELLY UNINTENDED CONSEQUENCES of the great society programs of President Johnson were to break up low-income families. Men were financially incentivized to drift around impregnating as many women as possible, an activity that was generally seen as a tribal rite of masculine virility and feminine fertility anyway, and so, culturally commendable, as indeed it is when done responsibly. The randomly seed-scattering fathers return on “Father’s Day” when the monthly welfare cheques arrive, and the golden youth conferred upon the nation in the flowering of this ethos is generally advised, I learned from interviewing many scores of exemplars of it (and not all of them non-whites), to be a chip off the old block: proliferate and rip off the (white) system. When the utility companies threaten to cancel the electricity, cut off the telephone, and repossess the appliances, Mama needs some drug sales to keep the home fires burning, and Daddy, the proverbial “motherfucker,” is nowhere to be found.
The country’s incarceration policy has the benefit to the government of removing almost a million unemployed African Americans and at least half a million ethnically diverse correctional officers from the unemployment statistics. Treating white-collar crime like violent crime appeases the left and slightly balances the racial numbers in the prison system. The percentage of African Americans in the prison system is more than three times that in the entire population, and there are three times more African Americans in prison than in higher education. I was caught in this in part because of the refusal of the U.S. legislators to deal with the issue of the ballooning unequal distribution of wealth. I cannot be described as a socialist in anyone’s wildest imagination, but I feel there should in a decent society be limits to such disparities.
It is a scandal that there are 30 million or 40 million poor people in such a rich country, and as hard-pressed as the U.S. now is by international competition, it should not, as a strategic as well as a moral issue, be squandering so much labour in social inequities and in a hideously expensive, unjust, and ineffectual correctional policy. Until late 2008, there were hundreds of billionaires in the country, and millions of millionaires. Instead of a serious public policy debate about how to lift the socio-economic floor, this disparity has led to a totemistic assault on a few prominent people who misstep into the cross-hairs of the system: Leona Helmsley, Michael Milken, Martha Stewart, Alfred Taubman, and perhaps even me.
This shabby tokenism is the best American official policy has been able to do to address income disparities. The symbolic indictment of a few wealthy people, like sentencing the swindler Bernard Madoff to an imbecilic 150 years of prison, is just a placebo, a rabble-pleasing gesture.
Amy Bach, in her very scholarly analysis of the U.S. criminal justice system, Ordinary Injustice: How America Holds Court, recounts how legal aid lawyers bid for the government business, and the lowest bid takes, and how underfunded they are and how they have almost no time for individual clients. They are paid and evaluated by the court and always deferential to the prosecutors. They settle almost all cases because they are paid by the number of cases they address, not by the results or quality of service. Scores of my students and other acquaintances told me of the sequence: all assets are seized as ill-gotten gains, microcosmic outrages compared to the illegal seizure of my Park Avenue proceeds. The public defender is imposed, counsels the necessity of pleading and then purports to have negotiated a relatively light arrangement. Once in court, the prosecutor asks for much more than has been agreed, after the guilty plea has been entered.
The judge is a rubber stamp for the prosecution service, and the public defender, when interrogated by his client, shrugs and says the prosecutor broke his word. The entire system is a mockery; the public defender is a Judas goat restraining the fiscal burdens of sending 750,000 more unfortunates off to prison each year (more than three times the entire prison populations of France, Germany, Japan, and the U.K. combined, which have 110 per cent of the U.S. population), by persuading the untouchables not to exercise their fictional, though constitutionally gurantied rights. I saw them every day in St. Eve’s court; the wretched refuse from the municipal corrections centre in their orange jumpsuits, heavily shackled, being treated as mere freight by their slovenly, undemonstrative, court-appointed “defenders.”
The notion of one’s day in court is threadbare enough for those who can afford proper counsel. It is a complete fraud for the tens of millions who cannot. Ms. Bach estimates, after very professional and thorough research, that the 47 million convicted felons in the U.S. includes very many relatively minor offences such as disorderly conduct and impaired driving. But it is 15 per cent of the population, and tens of millions of these people were put away for a significant time.
Two of my fellow tutors and I had the privilege of reviewing films for possible educational reuse, at screenings on Saturday afternoons, and one of them was Henry Fonda’s performance in Gideon’s Trumpet, about a poor white man who secured, through a hand-written petition to the U.S. Supreme Court in 1963, the right of all Americans to have criminal counsel if they are unable to afford it themselves.
The film ends with a fine comment from then Attorney General Robert Kennedy, after eminent lawyer (and future Supreme Court Justice) Abe Fortas won the argument for Gideon. And the implication is that this was a great legal breakthrough. As has been described, the real result of this gallant effort is the colossal and contemptible scam of the U.S. public defender system. These sociologically deeply rooted, economically related problems will require more than reform.
MORE THAN 5 MILLION African Americans have been disenfranchised because of their legal records, and we are now getting back to the level of black disenfranchisement that prevailed prior to President Lyndon Johnson’s Civil and Voting Rights Acts of 1965. The per capita number of blacks to whites in prison is nine times greater. Nearly half of American black males between twenty and twenty-nine are under some form of criminal justice supervision. In practice, where it is decided whether indicted offenders will be streamed through federal or state courts to prison, the African Americans are almost invariably fed in overwhelming numbers to the harsher federal system. No one audible seems to take it amiss, including most black leaders, among them the president and the attorney general.
CRACK COCAINE DEALING WAS UNTIL RECENTLY treated up to one hundred times more severely than powdered cocaine. Because crack is heavily used by African Americans, this law is, in effect, another racial discriminatory measure designed to create an immense racial imbalance in the makeup of the prison population, as it has. These inequalities are becoming steadily more extreme along racial and economic lines. After slavery, what Lincoln called “the bondsman’s 250 years of unrequited toil,” and a century of demeaning and often brutal segregation, which Lyndon Johnson called “a century of ‘Nigra, Nigra, Nigra,’” despite all the progress and thirty months of an African-American president (who attracted the votes of ninety-nine per cent of African Americans) and Attorney General, but who have only just reduced the disparity. The disparity between crack and powder cocaine offenses from 100 to 1 to 18 to 1, which is still outrageous. Drug laws are being used to extend the history of the unequal treatment of blacks in America into a fifth century.
The American black problem is showing a satanic tenacity and ingenuity. And it must be said that this is due to the failings of the whites. There is too much black victimhood and no shortage of black racism, and there has been great progress, but the legacy of slavery is fiendishly persistent. And the even larger Latin population fares little better.
It is indicative of official American arrogance at its most inflated and obtuse that instead of suppressing drug appetites among its dilettantish bourgeois youth and degraded underclass, or using its immense military strength to secure its borders without strangling legitimate commerce and tourism, it has purported to require other countries to eliminate supply. This is a potentially terminal hubris. The United States has reduced Mexico to a state of virtual civil war and escalated the wars in Colombia and Afghanistan, claiming to fight drugs at their source, rather than in domestic U.S. demand.
The drug war has been a perfect illustration of the strength of supply-side economics, as the price has come generally down through greater supply, improved product quality, and rising demand, despite the imprisonment of more than one million small fry which are easily replaced by the drug trade kingpins. The War on Drugs has cost $1 trillion, and within America has almost nothing to do with violence. Drugs are involved in one-third of property crimes, but only 5 per cent of violent crimes. People growing a thousand marijuana plants get mandatory life sentences. Now that the methamphetamine drugs can be concocted by amateurs without importing or growing anything, alternative policy options will finally have to be considered. But all the current administration’s senior appointments in drug enforcement discourage any optimism that more enlightened policies await.
The Congress declined money requested by the Clinton administration for more methadone treatment, though it is fifteen times more effective than imprisonment for reducing drug use, and hugely less expensive. The War on Drugs has been a complete failure, except for the beneficiaries of the proliferating prosecution, prison industries, and the principal drug suppliers and traffickers themselves.
Marijuana is the largest cash crop in California, and 42 per cent of Americans use it at some point in their lives. Prohibition was a howling success compared with this, and Al Capone and other great liquor profiteers of that era were pacifistic Sunday school teachers compared with the leading Mexican and Colombian drug lords.
WHAT WAS UNUSUAL ABOUT OUR CASE was not the brutality of the U.S. prosecutors and their trans-border accomplices, or of the legal and judicial personnel they infected for their purposes. It was that instead of settling on the target themselves, they allowed Richard Breeden to do the targeting for them, and he was on a mission and thought the battle won when he set the cross-border legal and regulatory apparatus on our backs. No one made any allowance for the fact that we were not guilty; that it would not be possible to seize or strangle my ability to pay for a legal defence from assets situated outside the United States; that Radler’s crimes had not been concerted with the rest of us; or that we would have counsel able (Miguel Estrada and David Debold) to raise the constitutionality of the government’s habitual procedure and evoke the issue to the country’s highest court, far from the fetid, ward-heeling political bazaar of the Chicago Federal Courthouse, made no less sinister by the Little Red Riding Hood demeanor of St. Eve and the sterterous and insolent biases of Posner.
It followed the normal pattern for several years, as more and more people were cajoled or dragooned into the swelling lynch mob, gorging themselves on the hundreds of millions of dollars that erupted from the Hollinger piñata when they had ruptured it. As has been recounted, Strosberg, who didn’t need any instruction from the Americans about how to stuff himself like an Alsatian goose (financially and otherwise), paid himself more than $1 million for four months of unsuccessful legal work, approved mechanically by his local Windsor Law Society. Walker, after nine months at $100,000 a month for non-executive meddling and diddling, took another $600,000, which he brazenly demanded from Peter White in face-to-face straightforward negotiation for his vote for approving the privatization for which the shareholders had been clamouring, after having feverishly tried to sabotage it for many months. Richter, the Ravelston receiver, having insanely responded to the U.S. charges, eagerly accepted the yoke of Sussman’s despotism like the others, milked Ravelston for $8 million, pledged $7 million to the U.S. government and unspecified restitution (of which the United States will never see a brass farthing), promised questionable evidence that was ultimately not admitted, and even deprived the small-income pensioners of a large chunk of their accumulated pensions, which I hope to make good from my own resources when I dispose of the accursed idiocy of the Mareva. Voorheis drained Hollinger Inc. of more than $5 million as he drove it toward and into bankruptcy, and was re-elected by Richter on Sussman’s orders a few months before the rich company we had left was capsized into the bankruptcy they had so wantonly engineered, against all their and their legal sponsors’ promises at the time of their engagement, not to mention their duty to the stakeholders, and the spun sugar candy of the Law Society’s ethical standards.
Of course this was just an hors d’oeuvre compared to the orgy of wickedness in America. O’Melveny & Myers mined the Breeden lode in Hollinger International for more than $150 million, had the effrontery to bring in one of their partners as an expert witness in our trial, then po-facedly piggybacked on our appeal to the Supreme Court, where they represented Geoffrey Skilling and gave him, as they had at trial, a half-hearted argument, to avoid too great a solidarity with us, in defence of the fact that they had raped Hollinger for five times as much as they were able to wring from the writhing financial corpse of the former Enron boss.
Having championed honest services against us, when receiving $150 million for acting for the Hollinger International Special Committee, O’Melveny’s didn’t raise it at the Supreme Court, though honest services was the only reason they got to that court, following us. Finally, since the petition from Skilling had been accepted on the honest service issue, the bench asked the O’Melveny partner who was arguing the case about that statute, and received a rather underwhelming response. When we won, O’Melveny launched a public relations blitz claiming credit for it. This is not entirely atypical of the ethics of the profession that is responsible for keeping the rule of law alive and prosperous and respected in America.
In the zeal of its agents to crucify me, the U.S. government brought financial sorrow to scores of thousands of homes in all parts of the United States and Canada. It showed no concern for those whose innocence was never in question, and is the principal author of their loss of $2 billion. But even as the continental official scorched-earth policy destroyed the small shareholders’ interest, I had partially rebuilt my means from the large gains on the value of my homes, and, ironically, from the gains generated by ruthless Radlerian management of the private newspaper companies that had been accumulated fraudulently by him but approved of as untainted in the deal the prosecutors made in exchange for his inculpatory perjury against my co-defendants and me.
Of course I had lost my biggest asset with the ruination of the Hollinger companies, but not so much that I could not pay to fight my way through the case and to restore my financial and moral position when the war was over, provided some public curiosity persisted about my side of the case, and my liberty and other non-Hollinger resources substantially survived the trial. They did. Punishment before trial was never contemplated by America’s founding fathers.
When I adjusted from my precipitate downfall from my previous position and accepted the inevitability of criminal prosecution and the possibility of imprisonment after Strine and the OSC stopped my efforts to salvage something for all the shareholders, I discovered my new, involuntary midlife vocation. If I could resist the tyranny and corruption of the U.S. prosecution service, I might be able to show, regrettably, but more persuasively if unjustly imprisoned, that the plea bargain system has become, in Brendan Sullivan’s phrase, “evil and repulsive.” The almost universal practice of exchanging false testimony against targeted victims for relative leniency will rot the judicial soul of America.
While I was at it, I could get in a pretty good shot at the short-comings of the corporate governance movement. Chris Browne, who had held a continuous press conference celebrating his great victory over me for eighteen months, revealed in occasional grumpy interviews later that he was just as hostile to Breeden and Paris. He had precipitated a disaster for his investors (a loss of more than $150 million from its highest price and $70 million on his cost) and other Hollinger international investors. A war of attrition affects all combatants, not just the party initially attacked.
The great newspapers and renowned commentators, even those most sympathetic to me, said nothing publicly about the rot of the system, though some, including Bill Buckley and George Will, spoke out publicly for me personally. Mark Steyn, Robert Tyrrel (The American Spectator), Roger Kimball (The New Criterion), and Seth Lipsky (New York Sun) were exceptions and warned darkly of where the plea bargain system could lead.
America has witnessed, almost silently, the triumph in its justice system of persecution abetted by denunciation. The Constitution has guaranteed rights that, if exercised, would overload the system, as defendants normally just give up after being treated to the pre-trial antics of prosecutors. And as has been described, most defence lawyers aren’t really barristers; they get a slight reduction in sentence by sparing the prosecutors the tedious formality of a trial. The U.S. justice system had many fewer plea bargains and more integrity fifty years ago, apart from in racial matters, and the trend is dangerous for every person in the country.
The executive community of America has been cowed. It may have been unbecoming for J.P. Morgan to say, “The public be damned!” publicly, but so is the mousy, insincere, and platitudinous do-goodism of almost all of America’s current leading financiers. The notion of a day in court in matters involving the federal government is illusory, and in criminal matters is, as has been extensively described, a farce, a national rodomontade, in fact. Justice is blind, but not in the sense intended. The law that rules is not the law that is written, much less celebrated, and there are obviously scores of thousands of innocent people in American prisons, and hundreds of thousands of grossly oversentenced convicts.
They are not yet numerous or respectable enough to constitute a strong political constituency, but they will be. The impoverished simply are ground up mechanically by the system, and don’t even try to fight it because they don’t have the means. The middle-class small business owners and professionals fight according to their means, but almost all are ruined, imprisoned, disgraced, and personally broken. Even the wealthy victims – Michael Milken, Alfred Taubman, Martha Stewart – go quietly off to prison, like children to be thrashed at the woodshed, and return chastised but say nothing of the system that assaulted them. Whatever might happen, I resolved that the same would not be said of me.
It is not the least irony of contemporary American affairs that as the United States has successfully and bloodlessly crushed the Communist illusion of a command economy, it has delivered its justice system, the moral centre of any democracy, to a command requirement for more and more convicts to fill the prisons that the unjust laws, the stacked deck of criminal procedure, the biased judges, the stifling ambiance of prosecute and convict and elect, the bloodthirsty media, and the sucker deals with rapacious private prison companies, prison industry suppliers, and the Luddite prison workers unions, and the rights-blind police associations, produce and require. The law, an occupation I almost pursued, is a very necessary but much-debased profession. The putrefaction of the U.S. justice system is rampant and, I repeat, is a mortal threat to the integrity, institutional soul, and historic purpose of America.
In the piping days of my great affair with America, I thought it a rough-and-tumble legal system that might have the upside of motivating and sharpening the American elites and workforce. Perhaps it was, once. Now it is just the noisome slough of moral carrion, ruined lives, and broken faith. It inspires not Olympian competition or the splendour of a great jungle beast, but rather disillusionment, misery, and ultimately, revolt.
Altruistic or meliorist instincts cannot be relied upon to achieve much politically in the United States. Fundamental change is accomplished by the forces of the economic and political market, harnessed or guided by talented and often benignly devious leaders, such as Lincoln slipping emancipation into the suppression of the rebels; FDR redefining neutrality as undeclared war; Martin Luther King holding the reins of the militant blacks while conquering the consciences of the moderate whites; LBJ with civil rights (“the idea whose time has come”); Reagan ending the Cold War by raising the poker ante with defensive weapons, the Maginot Line that worked politically (if not, altogether, militarily).
There is plenty of opportunity to discuss all these subjects here with knowledgeable people. Bill Buckley and George Shultz, and even Richard Posner, were right; the War on Drugs is a fraud and a failure and should be abandoned.
Always in its history when the United States had to have outstanding leadership, it has emerged: Washington, Lincoln, Franklin D. Roosevelt. It needs it now, and not only for the reasons detailed here. In announcing their result of the Constitutional Convention in 1789, Benjamin Franklin said, “A republic, if you can keep it.” The country has faced greater threats since then than it is facing now, but the Constitution has not.
In the end, the United States is always governed from fairly close to the centre. The prison industry is more threatening than the defence industry that President Eisenhower warned the country about in 1961, which at least promoted sophisticated technology, protected national security, and didn’t shred the Constitution and tyrannize the people. It will be exposed and tamed. The excesses of the media, endlessly inciting paranoia about crime and the supposedly cowardly mollycoddling of criminals by the politicians, allowing the wrongful and unconscionably prolonged imprisonment of millions of people, all under the tired and fetid mantra of “law and order”—all this will abate or be corrected eventually, as witch-hunting, slavery, industrial feudalism, Prohibition, isolationism, segregation, McCarthyism, and the violent domestic left did or were.
I can forgive America for wrongly imprisoning me and victimizing my shareholders. I now know that the lowest echelons of American society are in some ways more endearing than the highest, an unsuspected insight. I still love the country, though I do not now especially like it. And if, as I hope, I have been able to contribute anything to overcoming this terrible erosion of the justice system, it is my honour.
The treatment of the accused, as Thoreau, among other prominent American intellectuals, wrote, is one of the greatest criteria of the civility, integrity, and moral strength by which societies are themselves judged. When the unanswerable mass of sensible American opinion recognizes this, the United States will no longer fail that test, but much more sorrow and anguish will have been needlessly brought upon the land.
I will return to prison, finish my sentence, and leave the country for the great world beyond as soon as possible.