Bill H.R. 1 is a monstrous confection of Nancy Pelosi’s to turn America into a one-party state at the federal level; it is almost certainly unconstitutional and is odious in almost every respect. But one point of merit that lurks within it and is either lost or mistakenly opposed is the provision for felons.
As I’ve had occasion to write here before, one of the greatest failures of public policy in the United States is the criminal justice system. It is a mockery of justice as the deck is loaded in favor of the prosecutors.
U.S. prosecutors convict 98 percent of those they charge and 95 percent of those cases are concluded without a trial, so overwhelming is the advantage that the prosecutors enjoy. (In Britain it is about 50 percent and in Canada, if abandoned prosecutions are included, about 60 percent.)
Under the plea-bargain system, prosecutors interview everyone closely connected with a targeted individual in the activity objected to and require of them inculpatory evidence against the defendant. When the defendant’s friends assure the prosecutors that they know the suspect well and consider him incapable of criminal acts, they are advised that if they don’t jog their memory successfully, they will be considered part of a conspiracy to obstruct justice and will be charged also.
However, if their amnesia abates, they will be assured of no possibility of a charge of perjury. Few people in practice subjected to this kind of pressure can resist the liberative benefits of an ingenious and creative memory.
The consequence of all this is that the United States has five percent of the world’s population and 25 percent of its incarcerated people. It has six to twelve times as many incarcerated people per capita as the six most comparable countries, all large prosperous democracies: Australia, Canada, France, Germany, Japan, and the United Kingdom.
Penal Reform
Assuming that at some point the United States has the benefit of returning to the kind of economic policies of the previous administration that effectively eliminated unemployment, partly because of the almost complete end of the influx of illegal immigrants, it should as a society tackle the scandal of its criminal justice system. When there is almost no unemployment, public opinion is amenable to serious penal reform.It is an inexplicable disgrace that the Supreme Court has allowed the Fifth, Sixth, and Eighth Amendment guarantees of a grand jury to prevent capricious prosecution, due process, no seizure of property without adequate compensation, prompt justice, an impartial jury, and reasonable bail, to be widely and routinely discarded.
The reinstatement of all of these, as well as the reorganization of the trial itself so that, as in other civilized countries, the defendants have the last word, and the reinforcement of the public defender so that instead of being a stooge for the prosecutors and a Judas goat for their impecunious clients, they actually have some chance to defend a case; all of these are necessary to humanize the system and prevent the needless grinding into powder of the lives of millions of Americans.
Because of the egregious in-built injustice of the system, I suspect that 20 percent of convicted persons are innocent, 20 percent are convicted under laws that should not be the subject of criminal sanctions, and the great majority of the rest are over-sentenced.
Added to this is the Manichaean nature of American criminal justice: once there is a finding of guilty, the convicted person becomes a non-person without rights and is stigmatized personally. This is irreconcilable with any notion of redemption, rehabilitation, and paying one’s debt to society.
A seriously compassionate president would immediately commute the sentences of all those nonviolent first-offenders who have served at least half their sentence. The ultimate legal reform would do away with prison for most nonviolent first-offenders, require residential therapy for hard drug addicts, and various forms of community service for first-time offenders who pose no threat to the person or property of others.
The best way to accomplish anything in this field is to make it politically attractive. Counting those convicted of driving under the influence and minor offenses from long ago, such as being disorderly at a fraternity party thirty years before, there are approximately 50 million ostensible felons in the United States.
Of course, this is nonsense but it seriously limits their ability to travel abroad and in some states, to vote, and these encumbrances should be dispensed with in the case of nonviolent, once-convicted people.
Hatful of Votes
Their so-called reforms are mere window dressing, but if either political party became serious about cracking the next vein of electoral gold, they would maintain a fairly strong line about crimes of violence in order not to be blindsided in Willie Horton manner (the recidivist violent felon released by 1988 Democratic presidential candidate Michael Dukakis), but propose a world-leading program of progressive treatment of nonviolent first-offenders.Many of these people are at least as virtuous, from my extensive observations of them, as the majority of those to whose custody they are consigned. (I served three years and two weeks in U.S. federal low security prisons for crimes which it has now been well-established I did not commit. I won the largest libel suit in Canadian history, $6 million, from my original accusers, and my co-defendants and I won full pardons from President Trump with the assertion by the White House legal counsel that no charges should have been laid.) My experience was not unique, but I was unusual in having the means to fight it through successfully to the Supreme Court twice and on related matters to the Supreme Court of Canada also.
There will be a great hatful of votes, as well as a solid socio-economic advance for the whole country for whichever administration takes a step like this, and a world-leading lesson in how to humanize the treatment of nonviolent crimes. It is not a howling mystery that the present system has many failings; these have been recognized and repeated by judges, barristers, and legal academics repeatedly for a great many years.
The U.S. incarceration levels were reasonably comparable to other countries about fifty years ago and there was a respected legal reform movement in the country, until the combination of exaggerated fear over the Black Panthers and other African-American activists and the aggressive counter-response by feminists to predatory sex crimes, both reasonable attitudes if not allowed to warp public policy as they did, led to a competition between all of the politicians from left to right to hurl their shoulders against the same open door. Robert Kennedy and Nelson Rockefeller were just as fierce advocates of absurdly long sentences as Richard Nixon and Ronald Reagan. No one has spoken for the over-sentenced and the unjustly convicted.
H.R. 1 is a ghastly and horrifying bill. That it proposes the right to vote for felons is the one tiny speck of icing on this poisoned cake. If the system works successfully, the cake will be disposed of in an ecologically sound manner and the icing will be digested by the Congress and will take shape in legislation.
President Trump took a step in the right direction with his First Step Act and President Biden deserves credit for taking a further step in his promotion, legislatively and by executive order, of the right of incarcerated people to vote and receive certain benefits. They are citizens, and should not be treated like caged animals.
