Legalizing Tyranny
Mr. Fish / Truthdig
The students I teach in prison who have the longest sentences are, almost
without exception, the ones who demanded a jury trial. If everyone charged
with a crime had a jury trial, the court system would implode. Prosecutors,
defense attorneys and judges use those who insist on a jury trial-often
people who did not commit the crime with which they were charged-as
examples. Their sentences, frequently life sentences, are grim reminders as
to why it is in the best interests of a defendant, even if he or she did not
commit the crime, to take a plea agreement. Ninety-four percent of
state-level felony convictions and 97 percent of federal felony convictions
are the result of guilty pleas. And studies by groups such as Human Rights
Watch confirm the punitive nature of jury trials: Those who go to jury
trials get an addition 11 years, on average, tacked on to their sentences.
The rich get high-priced lawyers and lengthy jury trials. The poor are
shipped directly to jail or prison.
The corrosion of the moral authority of the legal system has ominous
implications as we veer closer and closer to despotism. It is an example of
one of the fundamental precursors of tyranny, as political theorist Hannah
Arendt pointed out in her book "On Violence." Arendt wrote that "power and
violence are opposites: where one rules absolutely, the other is absent."
When institutions such as the judicial system break down and lose
legitimacy, their moral authority is destroyed. To fill the moral vacuum
these institutions turn exclusively to violence. "Violence," Arendt wrote,
"appears where power is in jeopardy." Violence is no longer an expression of
power. Rather, violence and coercion, which disregard any semblance of
justice, are the only mechanism left to exert social control. Trust and
respect for the rule of law is replaced by fear. And as Arendt warned,
"Violence can destroy power; it is utterly incapable of creating it." The
court system collapse now afflicting the poor is working its way like
gangrene up the body of the judiciary. Violence is increasingly the only
tool left to a discredited corporate state and its bankrupt ideology of
unfettered capitalism. What is being done to the poor will soon be done to
all of us.
If you are poor, this is how the system works.
First, you get picked up for a crime you may or may not have committed. The
police have broad legal tools, such as RICO-the Racketeer Influenced and
Corrupt Organizations Act of 1970-that allow them to charge everyone whom
they define as a member of a gang or other group involved in crime. Some of
those charged may not have been involved in any way in the commission of the
crime. One of my students, for example, was in a room with several other
people during a drug deal that went bad. A man pulled a handgun and killed
another man. My student did not own a gun. He had no part in the murder. He
did not know the killer or the victim. But he went to prison under a plea
deal calling for 11 years, losing his job and leaving his son, whom he was
raising alone, to the streets. He is out now. His son is in prison. Our
prisons are filled with people like him-poor, black and unfortunate enough
to be in the wrong place at the wrong time.
Police don't have the time, resources or inclination to investigate most
homicides. To close a case, what they need is a suspect, or suspects.
Suspects always receive several other charges, such as kidnapping, that
carry long sentences, in addition to the main charge. It does not matter
whether they kidnapped someone. That is not the point. The point is to give
them so many charges that they are looking at a virtual life sentence. This
makes the reduced sentence offered in a plea agreement very attractive.
Since poor people often cannot afford bail, they sit in a county jail for
months and often years before trial, adding to the pressure to accept a plea
agreement. If they are young and do not have an outside support system, they
can easily be worn down and made to sign a confession. This happened to a
student of mine who was 14 years old and who lived on the streets after his
stepfather beat his mother to death in front of him. He was pressured into
signing a confession to a murder in Camden, N.J., he says he did not commit.
The police, he said, told him if he signed he would be released. Like many
on the street, he was functionally illiterate and could not read what he
signed. He spent two years in the county jail and then went to trial, where,
even though he was 16, he was tried as an adult. He is not eligible for
parole until he is 70. He has no money for an appeal. He was fined $10,000
when he was convicted, a sum that he is slowly paying off out of his prison
salary of $28 a month. He is 40 years old. He still owes the state of New
Jersey $6,000.
Secondly, you are assigned a court-appointed lawyer. This lawyer is so
overworked he or she does not have the time to investigate the case and
mount a credible defense. The lawyer's real function is as a negotiator with
the prosecutor for a plea agreement. A plea agreement, always carried out in
secret, means the prosecutor will drop some of the charges. A plea agreement
reduces the time in prison significantly, often by half. Go to court, you
are warned, and you will face all the charges. The pressure to plead out is
effective and intense, which is why most people, even those who did not
commit the crime, plead guilty. Since nearly all cases are settled with plea
agreements, the public, from which a jury would be selected, is blocked from
seeing the travesty our judicial system has become.
A jury trial for the poor is a farce. Court-appointed attorneys sometimes
spend only 15 minutes with clients. They often show up at trial unprepared.
Prosecutors in many states are allowed to wait until the start of a trial to
share evidence. This means that many people are pressured into guilty pleas
although the prosecutors have little or no evidence that they committed the
crime. It also means the defense has no way to prepare a response.
I had a student in prison who had been on an Army boxing team. He was
preparing to go professional. He was charged with a homicide in Elizabeth,
N.J. He says he was not in the city at the time of the killing. He refused
to take a plea deal of 16 months. He went to court. His public defender told
him to plead self-defense. He refused. This was a good decision because it
came out in the trial that the victim was shot in the back. How did he get
convicted? A few drug addicts, who were tidied up and given hotel rooms and
some cash by the police, testified they saw him do it. He got 30 years.
"We sat in the courtroom in shock," his mother told me. "It was transparent
to everyone in the room the drug addicts were lying."
The judicial system never has been fair to the poor, especially poor people
of color. But its propensity for injustice has been expanded over the past
three decades, as Michelle Alexander illustrated in her book "The New Jim
Crow." The number of crimes, especially on the federal level, that people
can be charged with has exploded. There were once only three named federal
criminal acts: treason, piracy and counterfeiting. Today there are
thousands. The law as an instrument of morality at the state and federal
levels has been deformed into an instrument of racialized social control. It
imposes legal duties on the poor and then imprisons them for not carrying
out those duties. For example, if someone in the room where the drug dealer
was killed had immediately called the police and reported the crime, a
virtual death sentence in a poor community, he or she would be exonerated.
Refuse to call and you get charged with murder. Even the courts don't
pretend that many of those with murder convictions actually carried out a
homicide.
If someone wants to file an appeal, it costs $100,000. Poor people don't
have access to that kind of money. Appeals are usually handled by other
prisoners who work as paralegals in the prison. In the case of the boxer it
was different. His parents took their entire $150,000 retirement savings and
hired a lawyer and private investigator. They went to court armed with
depositions from the drug users who had testified against their son saying
they had lied. It made no difference. He is still in prison. And his
mother-his father has since died-is living in poverty, having exhausted her
savings trying to save her son.
"My mother," he told me, "never understood the system is a sham."
The carcel state-composed of 1,719 state prisons, 102 federal prisons, 901
juvenile correctional facilities, 3,163 local jails and 76 Indian Country
jails, along with military prisons, immigration detention facilities, civil
commitment centers, and prisons in the U.S. territories-is a subculture unto
itself, with an $81 billion budget and tremendous political clout. We spend
a total of $265 billion on federal, state and local corrections and the
police and court systems. The two main political parties compete to see
which can be "tougher" on crime. Congress enacted 92 death-eligible crimes
from 1974 to 2010. A first-time drug offense in the United States can lead
to a life sentence. I taught a student who had been given a life sentence
plus 154 years for weapons possession and drugs. He had never been charged
with a violent crime. These kinds of sentences are unheard of in most of the
industrial world. They are common in despotic states such as China and the
Philippines, states we increasingly resemble. There are now 65 million
people in the United States who because of past convictions make up a
criminal caste that is denied things ranging from public housing to the
right to vote. There are 7 million controlled by parole and probation
officers. We have the highest rate of incarceration in the world. These
numbers will, as our society unravels, go up.
The judicial system in recent years has been cruelly refined to close the
tiny windows that offer any hope of reprieve to the 2.3 million people we
lock away in cages. The courts routinely reduce sentences if the defendant
gives up his or her right to an attorney and signs a waiver prohibiting him
or her from filing an appeal. This bargaining tactic strips defendants of
any legal protection.
Corporations have taken over larger and larger segments of prison life, from
food service to money transfers, commissaries and phone communications. A
million prisoners work for corporations in prison and are often paid under a
dollar an hour. Prisoners and their families are exploited for billions in
corporate profits. Corporate lobbyists sponsor legislation to make sure this
captive population remains captive. Black and brown bodies on the streets of
our cities do not bring in revenue for these corporations; behind bars they
each generate $40,000 to $50,000 a year.
Deindustrialization left hundreds of thousands of black people in urban
areas without work. Their communities decayed and collapsed. Crimes rates
rose. The social disintegration was accompanied by harsher forms of social
control, militarized police and mass incarceration. But the cause of this
social disintegration, as sociologists such as William Julius Wilson have
pointed out, has been ignored. As the rot of deindustrialization spreads
across the country, the experience of people of color-the lowest stratum in
the hierarchy of classes-will become normalized. Once rights become
privileges for any segment of a population, as Arendt pointed out, they can
be revoked for the rest of the population. We have built a terrifying legal
and policing apparatus that has placed the poor of our nation, victims of
corporate pillage, in bondage. This system is creeping outward to cement
into place an American tyranny.
Chris Hedges
Columnist
Chris Hedges is a Pulitzer Prize-winning journalist, New York Times best
selling author, former professor at Princeton University, activist and
ordained Presbyterian minister. He has written 11 books,.
