Needs & Problems addressed by HRJO
Introduction
Around the world horrific crimes occur every day. It is necessary for the protection of human life that offenders are caught by investigators and that their deeds are exposed in a court of law. While prison is not the appropriate punishment for all crimes, prison is a necessary place to contain people who are proven beyond the shadow of a doubt to be a threat to themselves or to society. In order for true justice to be served governments and their officers and courts must use methods that have integrity and are fair, equitable and that promote security and confidence.
When there is a breakdown in the justice system and conditions exist where those accused of crimes are treated unfairly and without due process then the justice system itself becomes a threat to every citizen. In such situations the justice system becomes the cause of the very kinds of physical and psychological damage that it is supposed to protect against and violations of Human Rights occur.
Gresham Sykes, was a penologist and the author of “The Society of Captives” in 1971. Having returned from war in Europe, writing in the shadow of Nuremberg, and under the canopy of the Cold War, he knew that the specter of totalitarianism is never far away. He observed that the pains of imprisonment can be used as a tool to annihilate the person by dissolving individuality and autonomy.
Length of time the problem has existed:
In response to serious, high profile violent crimes stemming from the trafficking of illegal drugs, starting in the early 1980’s the United States federal government began changing old laws and enacting new laws that have transformed the entire U.S. criminal justice system from the point of investigation all the way through to conviction and incarceration that have resulted in the creation of an actual police state with far reaching implications. The incident of 911 has on only worsened the violations being visited upon the general public.
The most significant changes to the U.S. justice system began with the introduction of new U.S. Sentencing Guidelines and rigid mandatory minimum sentencing practices that, in effect guarantee that anyone charged with any offense in the U.S. will automatically receive a prison sentence favoring the high end of an arbitrary time guideline even in cases where it makes no sense to incarcerate people. All existing studies in penology clearly indicate that incarceration is not an effective means to deterrence of crimes, yet the U.S. government has virtually ceased all government studies in penology and it promotes the contrary idea that long term incarceration should be used as punishment for crimes even for petty offenses and even when the accused does not represent a threat to anyone.
The Sentencing Guidelines Committee responsible for advising U.S. politicians performs no significant studies other than basic statistical analysis into the effectiveness of this debilitating incarceration and has made no efforts whatsoever to make a study of what the most effective length of sentences should be for various crimes or whether or not the long sentences recommended by the guidelines represent cruel and unusual punishment in any cases.
It is the contention of Human Rights and Justice Organization that the lengths of the terms of incarceration have risen to the level of cruel and unusual punishment particularly when compared with the sentencing practices of the other “civilized” nations of the world. U.S. sentences are so punitive that they discourage those accused of crimes from going to trial because losing at trial guarantees horrifically long sentences. A fascinating testimonial to the cruel nature of the sentences is demonstrated by a poll where 9 out of 10 people in U.S. prisons would rather receive corporal punishment (public whippings or other torture) rather than complete their term of sentences.
“..rigid mandatory minimum sentencing practices that, in effect guarantee that anyone charged with any offense in the U.S. will automatically receive a prison sentence favoring the high end of an arbitrary time guideline even in cases where it makes no sense to incarcerate people.”
The introduction of this harsh U.S. sentencing system has also been accompanied over the years by significant changes to federal and state laws and the Rules of Federal Criminal Court Procedures and Appeals Procedures that have so diminished an ordinary persons access to justice that the world community must now raise the question as to the credibility of the U.S. Justice system and as to whether or not the U.S. Justice system has evolved over the last 30 years into a practice of ongoing and systematic violations of human rights and due process which has now culminated with the U.S. having the highest conviction and incarceration rates in the world. Over 98% of all Federal cases result in conviction today. That figure in itself represents a significant statistical anomaly that is one of the strongest scientific indicators that there is some lack of integrity in the U.S. Justice system that is tipping the scales of justice in favor of U.S. prosecutors and that prevents many people from receiving justice when considering that 75% of criminal proceedings led to conviction before the introduction of sentencing guidelines.
The criminal sentencing guidelines result in such long terms of incarceration for those who choose to defend themselves in trial that the unreasonable sentences influence innocent people to plead guilty to crimes they did not commit rather than risk exposure to inhuman and debilitating sentences. Criminal convictions are not being won by the U.S. prosecutors based on their skill at investigation, but rather based on intimidation and threat of unreasonable sentences that will be imposed if a person decides to take their case to court to defend themselves. In exchange for plea agreements lessor but still unreasonable sentences are handed down to anyone who is forced to navigate the draconian sentencing systems.
The United States holds more than 25% of the population of prisoners of the world and the businesses that profit from incarceration in the United States are booming and private interest groups hold strong lobbying power with the United States government. These private interest groups continue to promote and influence the uneducated public and politicians to accept the fallacy that long prison sentences are the only solution to crime and punishment, even though there is not a single study that demonstrates this to be true.
In May of 2010 the Heritage Foundation and the National Association of Criminal Defense Lawyers (NACDL) published, “Without Intent,” detailing the major shortcoming of Congress’s drafting of criminal laws. The report found that of the 446 non-violent nondrug-related criminal law as presented in the 109th Congress, more than half lacked a requirement that the defendant act with criminal intent. As noted in his book, “Three Felonies a Day: How the Feds Target the Innocent”, the author Harvey Silverglate puts this problem in perspective when he states, “Whether by design or by mere consequence, Congress has been making it easier for average citizen who did not intend to break the law to be convicted in federal criminal courts.”
To make matters worse many U.S. state governments, such as Florida, began to follow the lead of the U.S. Federal Government since the early 1980’s by also enacting similar laws and procedures and now have extraordinary prison overpopulation problems.
Today the U.S. Justice system has an impact not only on those inside the United States but on those outside of the U.S. in the international community.
The impact of the problem on the United States population:
According to the New York Times, the United States has less than 5 percent of the world’s population. But it has almost 25% of the world’s prisoners. The United States leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment. Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations. Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences.
Unnecessary and lengthy incarcerations in the United States debilitate those incarcerated and devastate entire families making it virtually impossible for people to recover from the experience. Rehabilitation of any kind and special education programs are not possible as the costs of where-housing prisoners in as small as space as possible with the least expensive food as can be found consume the entire prison budgets. Explosive growth in the number of people on probation or parole has propelled the population of the American corrections system to more than 7.3 million, or 1 in every 31 U.S. adults. Consider that if each person in prison has at least 2 family members then the number of people affected by imprisonment is over 20 million people. Given the rates of prisoners released and new people convicted it is likely that well over 30% of the population of the country is affected at any given time. The United States even has its own prison culture complete prison fashion and prison music that is part of mainstream society outside of prison.
Incarceration is the most expensive form of punishment. Overcrowding in prisons has changed the focus of U.S. prisons from rehabilitation to warehousing of people over the last 30 years. As a result even short terms of imprisonment in the U.S. result in debilitating punishment that continues after release as U.S. culture and hiring practices tend to discriminate against people who have been incarcerated rather than provide for a second chance. The right to vote, posses fire arms and to apply for many licenses is forbidden for those who have served time in prison. In addition, virtually all convictions in the United States qualify as felonies which cannot be expunged and which further restrict the future and travel rights of those convicted. The costs of the incarceration business in the United States have imposed a national taxpayer burden of over $68 billion a year since 2009. The building and staffing of U.S. prisons have become major jobs programs for most states in the United States creating a powerful bureaucracy and lobby that actively opposes and lobbies against its own reform. The mass imprisonment of U.S. citizens costs tax payers billions annually and causes untold harm to millions of family members of those incarcerated. The system does nothing to reform people and actually creates another underclass of people who have been handicapped and incapacitated by the U.S. government.
The current U.S. system of mass incarceration seems to be upside down in the sense that it grants more favor and shorter terms of imprisonment to more violent criminals while non-violent offenders are now doing the longest sentences. There are several programs that shorten time for prisoners who are at the highest risk for recidivism while the same programs are unavailable for non-violent offenders who are crowding prisons leaving little room for the violent career offenders who actually need to be incarcerated for the safety of society. For example the average sentence served in the U.S. for rape is 65 months, for robbery is 65 months and for all violent crime the average is 73 months, however, for crimes such as bribery, insider trading and even for victim-less fraud cases where merits of the prosecution itself is questionable the average sentences are over 120 months (ten years)! Even when those convicted of a non-violent crime make full restitution to their victims, the U.S. Justice system wastefully makes tax payers pay for the incarceration for those who have literally already paid their debts and damages. Ironically, when given a choice for restitution to be paid to victims or to place the defendant in prison, U.S. criminal courts favor long prison sentences that completely disable any chance for financial restitution to be made to victims. The victims themselves have virtually no say as to whether or not they would rather have restitution paid to them or have the guilty party incarcerated.
The evidence collected as part of the Human Rights And Justice investigation is the impetus for its mission. Careful research of many cases demonstrate that the United States courts have become little more than quick stops for fast food justice that has risen to the level of human rights abuse. Most judges and prosecutors are completely out of touch with the nature of the prisons where they send those convicted. The study of actual cases reveals that the system itself has become more concerned with form of procedure rather than findings of fact and more concerned with the timeliness and cost savings to the courts involved in completing cases rather than rendering justice.
Defendants are forced to accept plea deals under threat of cruel and unusually long prison sentences if they go to trial. The plea deals themselves also typically contain extraordinarily long prison terms themselves even after reductions. Trails no longer allow evidence by defendants to be presented to juries. Prosecutors routinely engage in charge stacking, threatening defense witnesses and knowingly presenting false and misleading evidence in order to obtain convictions. The consciousness of U.S. prosecutors is geared towards winning at all costs and has devolved into criminal thinking and actions that contradicts the very values that they purport to uphold and in essence makes use of crime to fight crime. In every case that is won by conviction or by plea U.S. prosecutors senselessly fight for the maximum possible sentences whether prison is merited or not. Many U.S. jurors in trumped up fraud cases who find out about the lengthy sentences admit that had they been told of the potential sentence that would be imposed that they would not have found the defendant guilty.
U.S. judges no longer have any facility at their disposal to correct unfair sentences when evidence is sent to them after sentencing. Defendants now have only two weeks after sentencing to give notice of appeal or their rights to appeal are forfeit whether there is good cause for appeal or not.
U.S. plea agreements include confessions written by prosecutors that too often contain lies and distortions of fact to ensure maximum terms of sentencing at plea hearings. To refuse to sign these false confessions means receiving no substantial reduction in charges or sentencing for pleading guilty. Those convicted in white collar non-violent offenses bear the worst burdens, being thrown in jail and typically being permanently stripped of licenses, and being repeatedly charged in civil courts and made to pay damages repeatedly for the same crimes by government agencies who levy additional punishments for the same offenses. By simply re-naming or calling the punishment something other than a punishment in subsequent cases the U.S. government appears to have found a way to flagrantly violate the U.S. constitution’s provisions against double jeopardy. In many state cases, after defendants have served time in prison, the federal government brings charges and prevails for an additional federal prison sentence based on the exact same offense for which the state had already convicted and sentenced the defendant.
Many U.S. plea agreements include provisions that require that defendants are not allowed to speak for themselves or present evidence during their sentencing hearings so that the court has only the false confessions written by prosecutors as a guideline for sentences.
Sentencing guidelines are not calculated by judges, but are instead calculated by law enforcement officers of the probation office, who are not lawyers or accountants and who literally take sides in cases based on the recommendations made by prosecutors and who typically render the highest sentencing guidelines in as part of their reports to the judge when the legal or accounting issues are beyond the scope of their ability to analyze.
U.S. inmates who defend themselves are not given adequate access to their own legal records, evidence or means to help them work on their own cases and are routinely denied access to critical functions of the courts during all stages of their cases and during appeals. U.S. Federal prisoners are forced to use typewriters at their own expense or pencil and paper create their court filings even where computers are available.
U.S. prosecutors and lawyers who are found to have acted on behalf of the government by providing bogus legal opinion letters that protect U.S. officials, or who acted dubiously in cases, are often given lifetime appointments to serve as federal judges as rewards, which has further corrupted the system.
The U.S. Judiciary is not subject to any Freedom of Information Act requirements and records of the courts and judges are protected and remain secret, even to the defendants and plaintiffs in cases, thus there is no transparency, no mechanism for oversight and no accountability within the court system itself. When laws are broken by judges and prosecutors, the records remain secret and no-one is accountable. The general public remains completely unaware and ignorant of how broken and backwards the U.S. Justice system has devolved in a relatively short period of just over 30 years; the secrecy of the U.S. courts, the lack of oversight, the requirements written into most plea agreements for defendants and the threats of prosecution made by law enforcement officers and prosecutors to defense witnesses. The results of the investigations made by the Human Rights and Justice organization intend to reveal what is actually happening in the U.S. courts today.
Forgiveness does not eliminate the need for dangerous criminals to be incarcerated in order to protect society, but it is important to recognize the tool of forgiveness which in certain non-violent offenses may very well provide an opportunity for a second chance other than debilitating incarceration for low risk offenders. Actual experience from many new programs being introduced into organizations dealing with victims of crimes shows that only until victims can actually forgive the perpetrators of their crimes no beneficial psychological closure will take place. However, in order to further perpetuate the current U.S. Justice system and mass incarceration as a solution to crime U.S. people are continuing to be falsely led to believe that it is necessary for closure and healing for those found guilty to be placed in prison as punishment in all criminal cases. U.S. citizens are routinely indoctrinated into a false philosophy that states that justice closure only occurs when a victim can take pleasure from the suffering of the offender even though this is scientifically untrue and leads to even more turmoil for victims. These messages are primarily coming from U.S. politicians and judges who are under the influence of the powerful lobby of business owners who profit from the business of incarceration, and bureaucrats who are trying to justify and protect their jobs and associated prison jobs programs.
Ordinary people in many respectable and professional jobs do not realize the high risk that they are at of going to prison by working in the United States or with U.S. citizens even when living outside of the United States. Professions where people are at the highest risk of going to prison in the United States include, entrepreneurs, business owners, brokers, bankers, financial advisers, medical doctors, builders, lenders, mortgage brokers, political party supporters of both sides, telemarketers and those involved in the mass marketing of any products or services.
Now that the true and massive scope of the United States surveillance programs on its own citizens and abroad are acknowledged, consider the dangerous combination of a U.S. Justice system that is so out of control that anyone who is charged with a crime will be put in jail no matter of their innocence, guilt or intent to commit a crime.
The impact of the problem on the international community:
The United States is a major super power and self appointed police force of the world and it’s law enforcement activities know no borders or boundaries. The disregard for rights of humans in U.S. courts and the mass incarceration and cruel and unusually long prison sentences for human beings and their families in the United States is acknowledged in the international community as the “dark side of America, one that scares us all.” Foreign government officials such as French Culture Minister Frederic Mitterrand in reference to this very issue of the U.S. Justice system makes the sentiment of foreign governments towards the U.S. even more clear when he states, “In the same way there is a generous America that we like, there is also a scary America…”
The discovery of the details involving the massive U.S. surveillance programs that target not only each and every resident of America but also everyone in the world have confirmed the reach of U.S. authority over seas. Foreign Affairs Magazine’s Henry Farrell and Martha Finnemore argue that, “The U.S. government, its friends, and its foes can no longer plausibly deny the dark side of U.S. foreign policy” .
The Chinese government that is routinely accused by the United States of human rights violations released a report detailing the current human rights violations in the United States. In this report the Chinese state among other things that, “Prisons in the United State are packed with inmates,” and “The basic rights of prisoners in the United States are not well-protected. Raping cases of inmates by prison staff members are widely reported.” And further stating, “While advocating ‘freedom of speech,’ ‘freedom of the press’ and ‘Internet freedom,’ the U.S. government unscrupulously monitors and restricts the citizens’ rights to freedom when it comes to its own interests and needs.”
For decades securities brokers outside of the United States have not taken U.S. clients because of the propensity of the United States to reach out overseas to bring foreigners under the jurisdiction of draconian and punitive U.S. laws whenever foreign people do business with U.S. people. Most financial institutions have abandon servicing U.S. citizens including most recently Forex Brokerage firms for the same reason. Now with the U.S. Foreign Account Tax Compliance Act, which requires businesses to report all assets held by Americans the United States has literally required foreign banks to subject themselves to U.S. laws which has caused many foreign banks to reject U.S. citizens as customers rather than risk any exposure to the broken U.S. justice system and potential incarceration in the United States.
The U.S. has a long history of arresting foreigners for conducting business that is legal overseas but illegal in the United States. A recent high profile case was that of David Carruthers, a U.K. citizen and CEO of the U.K.-incorporated, U.K.-traded public company BetOnSports.com who was arrested at an airport in Texas during a layover to Costa Rica. He was arrested for his running a casino in Europe, which is legal in his own country. The U.S. also has a history of engaging in Forced Abductions according to Amnesty International where U.S. agents simply travel overseas and arrest, drug and kidnap people without any notice to the foreign government and use military or private airplanes to bring someone back to the U.S. to face trial by force.
In countries such as Iraq and Afghanistan, the U.S. Department of Justice sends U.S. Prosecutors to act as advisers to “help” these foreign governments create their own constitutions and Justice Systems using our broken U.S. model as an example. This has resulted in otherwise poor and uneducated people being sentenced to extraordinarily long terms of imprisonment based on non-existing evidence, similar to what happens today in U.S. courts. In the U.S. as in these third world countries, no-one dares go to court to defend themselves without risking at least a 20 year prison sentence.
The risks of investigation, conviction and incarceration in the U.S. for any people outside of the U.S. who are doing business with U.S. residents in any way is an ever increasing, an alarming reality that is too great for foreigners to ignore.
Contemporary efforts to address the problem and the results:
In their book, “The Politics of Injustice: Crime and Punishment in America” the authors Katherine Beckett and Theodore Sasson provide, “Comparative data suggest that levels of criminal victimization in the United States, although somewhat high, are comparable to those in other industrialized nations” (pg. 7) and “…these and other get-tough policy initiatives have done little to suppress crime. In fact, by breaking up families, disrupting communities, reducing the job prospects of hundreds to thousands of ex-cons, and consuming resources that might otherwise be directed toward drug abuse and crime prevention … these policies are corrosive … and they reflect a disturbing tendency to scapegoat and discard those citizens now considered to be part of an ‘urban underclass.’” And finally, on page 9, “political activism is needed to induce politicians to reconsider these policies associated with the war on crime… proposals emphasize the need to scale back the reach of the justice system and to shift the balance in crime control from punishment to prevention.”
To date there exists a number of groups that are trying diligently to change the laws and the systems that are undermining the U.S. Justice system, causing damage to millions people and their families and creating a separate underclass in the United States. These organizations eventually become lobbyists to state and federal politicians. The most active of these groups include non-profits and organizations such as:
- National Association of Criminal Defense Lawyers (NACDL) (nacdl.org)
- Families Against Mandatory Minimums: FAMM (famm.org)
- The Sentencing Project (sentencingproject.org)
- Prison Policy Initiative (prisonpolicy.org)
- Prison Fellowship (prisonfellowship.org)
- American Civil Liberties Union (ACLU)(aclu-il.org/issues2/criminal-justice-reform/)
- Northern California Innocence Project (http://law.scu.edu/ncip/)
As a group these organizations have done great work and have made some minor progress in the form of forcing the majority of government officials to publicly acknowledge that there are problems with the current system. However real and significant change is slow and almost non-existent because, there is a much stronger, more powerful and better funded lobby of business stakeholders that profit from the mass incarceration that have greater influence U.S. law makers and that continue to squelch even the best efforts of lobbyists who are trying to restore the credibility of the U.S. justice system.
To make matters worse the most powerful lobbyists that continue to promote the themes of being tough on crime include large and respected organizations, such as the prison workers union, and unions of law enforcement officers around the country as well as the U.S. Department of Justice itself which has the direct ear of U.S. politicians and is even expected to directly advise law makers. Unfortunately, in their well intention-ed efforts to protect society and their jobs they tend to rely upon, use and perpetuate misleading themes of being tough-on-crime primarily due to ignorance of actual statistical information and in some cases actual malfeasance and uncaring.
As a result of these kinds of media campaigns many citizens remain ignorant and completely unaware of the real problems with the justice system until they become subjected to investigation, arrest, court proceedings and incarceration themselves. While a substantial and damaging campaign of misinformation has taken place over the last 25 years, the complacency of the judicial, prosecutorial and even defense lawyers, and the level of ignorance amongst ordinary people about the justice system, makes it virtually impossible for politicians seeking re-election to go against the claims of highly reputable law enforcement and business lobbies. Taking any action that may appear to help change the system in any way that may make them appear to be not so tough on crime is out of the question. The reality is that the U.S. government has become so tough-on-crime that it is now dependent and drunk on the profits and jobs that have been created from the broken bureaucracy.
Consider the fact that over the years, organizations such as FAMM (Families Against Mandatory Minimums) along with Federal and State Judges, over 50 of the 94 U.S. Attorneys, Professors from Harvard and a myriad of supporters such as Grover Norquist, David Keene, Pat Nolan, Ed Meese and Pat Robertson have called for the repeal/review of mandatory minimums. Reform has also been supported by Presidents George W. Bush, Bill Clinton, George H.W. Bush and Supreme Court Justices Anthony Kennedy, William Rehnquist and Stephen Breyer and amazingly even the American Correctional Association endorses mandatory minimum sentencing reform. With all of these parties in agreement why has so little been done and why has any reform at all taken so long to occur even on the issue of mandatory minimums where everyone agrees there is a problem?
In the words of Harvey Silverglate , author of “Three Felonies a Day: How the Feds Target the Innocent”, “The U.S. criminal justice system would appear to be at a crossroads. Some skepticism has emerged even within courts and among judges and some sectors of civil society who have sounded the alarm and formed coalitions to fight the trend. Lawyers and scholars have taken to writing about the problem. But the Department of Justice continues to press forward, and many media supporters of such efforts value the excitement of ‘prep walks’ more than the importance of due process for people they are inclined to distrust, oppose, or even despise.” (introduction, page xxviii)
For these reasons there exists a condition in the United States where politicians are literally talking out of both sides of their mouths to please the smaller lobbies by acknowledging problems in the justice system while appeasing the larger lobbies by taking no substantive action to fix the problems. Presently, in spite of well meaning lobbyists on the side of justice reform there is nothing to compel politicians to institute real and substantial reform in our lifetime.
What is lacking in order for politicians to make constructive changes to the system is for real pressure to come from U.S. voters or from the international community. This will require a re-education of U.S. voters and the international community and these are some of the goals of Human Rights and Justice International.