Thank you Harvey Silverglate for shining a light on our criminal-injustice system with your new book Three Felonies a Day. And thank you Peter Kadzis for a great interview.
Although I recently retired from 35 years as a family lawyer, I still consult with victims of our legal system, many of whom now represent themselves in our dysfunctional probate and family courts.
Over the years, the stories my clients have told me about how state and federal prosecutors have needlessly and cruelly destroyed their families have become increasingly horrific. Prosecutors, usually young people right out of law school with no real-life experience, call all the shots. The collateral damage is huge. Children pay the biggest price of all.
Silverglate says that he doesn’t fully understand how this came about or why it happened. Here’s my theory: a punitive, Puritan mean-spiritedness reared its ugly head as a backlash to the peace-and-love ethos of the free-spirited ’60s. The first to really ride this wave was tricky Dick Nixon, who in 1968 thought that demonizing a whole class of people with a different lifestyle (and especially minorities and the poor) and scaring the hell out of the straight, white middle-class majority would be a good way to finally get elected president.
It worked. The War on Drugs was born. Many other politicians have followed in Nixon’s footsteps. They thought of new ways to get people in jail and to keep them there, with changes in criminal procedure, mandatory sentencing, and lots of new “crimes.”
Just as saner minds began to prevail, the 1986 death of Celtics number-one draft pick Lenny Bias, following a celebratory coke fest with his friends, pushed the prohibition pack into high gear. What was left of our civil rights and liberties was summarily flushed right down the toilet. We got asset forfeiture without proof of guilt and all sorts of incentives for police departments to go after people who were no threat to anyone, for any reason or non-reason it wanted. So it was that our beloved USA became a police state.
The prison industry is the fastest-growing segment of our economy with one out of every 100 adult Americans now behind bars. Trillions of our tax dollars have been spent on this mass incarceration. We are all paying the price for this savage hypocrisy.
Isn’t it time for a bit of a revolution? I suggest that a good place to start is to vote in a slate of ordinary people committed to restoring real justice for all and rational, humane government.
Harvey Silverglate is right. Over the last 20 years, federal prosecutors have gained ever-greater powers to threaten the innocent with decades in prison and reward the guilty with immunity and money (informants providing, as Chief Justice Warren once wrote, “dubious evidence [at] an enormous price”). All of this occurs with minimal judicial supervision, and what oversight there is comes from federal judges who are increasingly drawn from the ranks of federal prosecutors.
It is an unholy trinity, the prosecutor enthroned in majesty, the judge at his right hand and the state’s-evidence criminal at his left. Silverglate states modestly that he doesn’t understand how it came about. But it certainly derives in large part from the 1987 adoption of the barbaric Federal Sentencing Guidelines, the creation of a gifted young careerist named Stephen Breyer.