The unfairness, hypocrisy, and barbarism of the American criminal justice system is increasingly the subject of serious comment. Newt Gingrich is enjoying his brief sojourn as the non-Romney candidate of the Republicans, until the assassination squads in the New York Times and elsewhere give full play to his $1.6 million for history lessons to Fannie Mae, and his former love-ins with those great and reverend theologians Jesse Jackson and Al Sharpton, and his peccadilloes while trying to impeach President Clinton for his peccadilloes. Although he has, as he put it when he resigned as speaker, "thrown too many interceptions," he has his moments.
One of them is his cogently expressed concern about the American justice system. He has remarked that the U.S. imprisons too many people, that sentences are too long, that there are often better ways to deal with felons than prison, and that many states are so strapped they can't afford the absurd $40,000 annual cost of housing a prisoner, and often do so in unsafe or otherwise unacceptable conditions.
Senator Jim Webb of Virginia, who seems to be almost the only remaining exemplar of the old legislative spirit of seeking to legislate where an area of public policy is in objective need of improvement, rather than just pandering to financial backers and rushing to the head of wherever the polls are, has proposed a commission to review the criminal justice system. There have been countless such commissions before; they never achieve anything, and everyone knows what the problems are. But Mr. Webb accurately summarizes some of the problem is America's incarceration of six to 12 times as many people per capita as other advanced, prosperous democracies (Australia, Canada, France, Germany, Japan, and the United Kingdom). Either, as he wrote in his essay, "Criminal Injustice," these other countries don't care about crime, which is nonsense (and they all have lower crime rates than the U.S.), or Americans are uniquely addicted to committing crimes, which is also nonsense, or the American system has broken down. Bingo.
The United States has five per cent of the world's population, 25 per cent of the world's incarcerated people, and 50 per cent of the world's lawyers (who account for nearly 10 per cent of the country's GDP, an onerous taxation of American society).
Almost everything about the American system is wrong. Grand juries are a rubber stamp for the prosecutors; assets are routinely frozen or seized in ex parte actions on the basis of false government affidavits, so targets don't have the resources to pay avaricious American counsel and are thrust into the hands of public defenders, who are usually just Judas goats for the prosecutors. The prosecutors poison the jury pool with a media lynching at the start; bail is often outrageously high, and prosecutions and ancillary proceedings from the SEC, IRS, etc., drag on for a whole decade, all contrary to the Fifth, Sixth, and Eighth Amendments. The plea bargain system, for which prosecutors would be disbarred in most other serious countries, enables prosecutors to threaten everyone around the target with indictment if they don't miraculously recall, under careful government coaching, inculpatory evidence. Prosecutors win 95 per cent of their cases, 90 per cent of those without a trial, and people who exercise their constitutionally guaranteed right to go to trial receive more than three times the sentence they receive if they cop a plea, as a penalty for exercising their rights.
Federal sentences are about twice as long as state ones, on average, for the same offence, and probably about a third of prisoners are in illegally crowded and inhumanely spartan or even unsanitary conditions.
Evidentiary and procedural rules are a stacked deck: the prosecutors speak last to the jury; most trial judges are ex-prosecutors who stitch up appeals in the courthouse lunch rooms; and the Supreme Court only takes 70 cases a year, is ostentatiously unconcerned with the facts and equity of cases, and only interprets and applies the law to ensure it is constitutional and uniform across the country. The sole defence the average American has against this evil, repulsive, and terroristic system is that America does not have the means or personnel to imprison more than one per cent of its adult population at any one time, though a stupefying 48 million Americans have a record.
The civil courts are the bread and butter of the vast medieval legal guild. Over 70 per cent of American cases would be inadmissible in Canada or Britain as frivolous or vexatious litigation, and the routine American practice of marketing contingent fees is just a tawdry racket.
Before I get to the main point of this recitation, disclosure, though it would be known to most readers: I was accused in 2005 of 17 counts of criminal corporate misconduct for which prosecutors in Chicago sought life imprisonment and fines and restitution totaling $140 million. Four counts were dropped; nine led to acquittals at trial, and the remaining four were unanimously vacated by the Supreme Court of the United States, as it rewrote the principal prosecuting statute. All were utterly spurious. But instead of overturning the last four counts and requiring prosecutors to retry if they wanted a conviction, the Supreme Court sent the vacated counts back to the appellate panel it had excoriated in its vacating opinion, to assess the gravity of the lower court's own errors. As was generally expected, including by me, the Circuit Court self-interestedly and unrigorously retrieved two of the counts, and the trial judge, who had initially sentenced me to 78 months in prison and fined me $6.225 million, after I had served 29 months and been out on bail (reduced from $38 million before and during trial to $2 million) for 14 months, has sent me back to prison, from which I write, for a victory lap of eight months, and reduced the financial penalty to $725,000.
In legal and equitable terms, it is an outrage, as no sane and fair-minded person, after the Swiss cheese we have made of the prosecution case, could imagine that I had committed any illegalities. I am philosophical about it all, including the destruction of the company my associates and I built, and the $2 billion of public shareholder value that the sponsors of the prosecution vaporized while enriching themselves with $300 million siphoned out of the company as they destroyed it. My fall, though terribly difficult in many ways, was interesting in the abstract, including my time in prison, a world I would not otherwise have seen, and where I have made many friends and have enjoyed teaching and tutoring secondary school graduation candidates, and have much expanded my writing career, as author and columnist. (I was fortunate to be sent to prisons with email access.) Though the authoritarian regime is often grating, I have had no disputes with the regime in either prison, and the trial judge graciously commended me on my conduct as a prisoner. She said I was a better person for having been in prison, and it is not for me to contradict her.
Most people whom my wife and I regarded as friends have proved to be so, and though there have been some disappointments, a few bitter disappointments, they have been largely compensated for by the very great number of strangers in all parts of the United States and Canada and other countries who have expressed their support. Given the correlation of forces between the USA and its Canadian Quislings, and me, I have done well enough to survive it, physically, morally, socially, and financially. I am a historian and a religious Roman Catholic and can deal with most people and events fairly equably. Only the physical separation from my magnificent wife has been completely intolerable.
All of the foregoing consists of previously published facts, (particularly in my recent book, A Matter of Principle), to which I wish to add a reflection on the role of the media in the corruption of American justice. The free press is almost as important a pillar of a free society as the justice system, and in the United States has failed almost as conspicuously.
It is enough for the media to be a pack of wolves when whistled up by the prosecutors. That is not tolerated in other mature countries but is routine here. The presumption of innocence, as with Leona Helmsley, Scooter Libby, Martha Stewart, Alfred Taubman and me, was as much ignored by the press as by the prosecutors (and we were all innocent). Nancy Grace and her ilk regularly demand the conviction of mere suspects.
I have successfully sued for libel, in Canada, people who have accused me of crimes grossly in excess of those of which I was falsely convicted. But even now, after the debunking of the whole spectacularly unsuccessful prosecution case, there are journalists who persist in pretending both that I am guilty as charged, and that they can so state with impunity.
The latest to blunder premeditatedly into this corrupt and common practice in my case is Duff McDonald, an unstylish hack who writes for Fortune and is as undiscriminating a lickspittle of the fashionable as he is a defamer of the transitorily improvident. He has the personality of a turbot, the literary flair of a sloth, and the professional ethics of a baboon. McDonald wrote on a Time Warner-CNN website that he had written a "vicious" piece about me some years ago in Vanity Fair, at the start of my legal travails. (Maureen Orth and Bryan Burrough have done better in the same magazine since, but they all illustrate the difficulty of trying to make a serious point in an unserious place.) McDonald described me recently as a "thief" and I am introducing him in Canada, (a New York Times and Sullivan-free zone), to the brave old world of the laws of defamation. Libel courts in places where the Internet circulates defamations seem to be the only way to detach much of the media from their instinct to be useful idiots for American prosecutors. A retraction is being negotiated, but I would be happy to welcome Duff McDonald to the bracing atmosphere of a Canadian court. Somebody should whack these freedom of expression mutants when they come snapping and stinging out of the undergrowth. It would be my pleasure, as well as a public service.